Town and Country Planning Act 1971, section 205 — Blight notice — ‘Appropriate authority’ — Application by borough council for judicial review, seeking orders of certiorari and mandamus to quash decision of Secretary of State and to direct him to exercise his powers under section 205(2) by determining which of two local authorities, the borough council or a county council, was the appropriate authority for the purpose of the blight provisions — A blight notice under section 193 of the Act was served on the borough council by a lessee of land affected by highway proposals, one of the respondents to the present proceedings, and a similar notice was served on the county council — A reference of the objection was made to the Lands Tribunal, but proceedings in the tribunal were stayed pending the resolution of the judicial review application — This application followed requests by the local authorities for a determination under section 205(2) and a decision letter from the Secretary of State — The decision letter stated that the Secretary of State was not empowered to choose between the two authorities, each of whom was entitled to acquire the subject land but in relation to different sets of circumstances — The Secretary of State’s power under section 205(2)(c) to decide which of two local authorities was the appropriate authority was limited to cases where the land in question fell within the same specified class — Where, as here, the authority liable to acquire the land in relation to one class was different from the authority in relation to the other, the Secretary of State could not make a selection — The upshot was that a blight notice could be served on each authority — It was submitted before Mann J on behalf of the Secretary of State that this was the correct interpretation — Where there were two sets of circumstances there would be two appropriate authorities — This would enable a claimant to obtain a disclaimer of intent to acquire from both, whereas the selection of one would leave the blight imposed by the other unresolved — Held that this submission was correct, although there was no satisfactory answer to the problem — Application for judicial review dismissed
The following
case is referred to in this report.
Bolton
Corporation v Owen [1962] 1 QB 470; [1962] 2
WLR 307; [1962] 1 All ER 101; (1962) 61 LGR 7, CA
This was an
application by Bournemouth Borough Council for judicial review of a decision by
the Secretary of State for the Environment given in the exercise of his powers
under section 205(2) of the Town and Country Planning Act 1971. The first
respondent was the Secretary of State, the second and third respondents being
Dorset County Council and Stephen Harry Saunders, the lessee of premises
affected by highway proposals included in the Boscombe local plan.
Duncan Ouseley
(instructed by Sharpe Pritchard & Co, agents for S J C Chappell,
solicitors’ department, Bournemouth Corporation) appeared on behalf of the
applicant authority; Michael Rich QC and D Holgate (instructed by the Treasury
Solicitor) represented the Secretary of State; the second and third respondents
were not represented and took no part in these proceedings.
Giving
judgment, MANN J said: There is before the court an application for judicial
review. Leave to move was given by Woolf J (as he then was) on June 21 1985.
The applicant is the Bournemouth Borough Council. The respondent is the
Secretary of State for the Environment. There are two other respondents. The
second is the Dorset County Council and the third is a Mr S H Saunders. They
neither appeared nor were represented during this hearing.
The decision
impugned is a decision of the respondent dated March 18 1985 given in the
exercise of his powers under section 205(2) of the Town and Country Planning
Act 1971. The relief sought is, first, an order of certiorari to quash the
decision and, second, an order of mandamus directing the respondent to exercise
his powers under section 205(2) according to law.
Section 205 of
the Act of 1971 is within a fasciculus of sections headed ‘Interests of
owner-occupiers affected by planning proposals.’ The object of the provisions is to enable
owners of property affected by planning blight either to sell their properties
to a public authority at the price which it would have obtained in the open
market had there been no planning proposal or to obtain a disclaimer from the
public authority concerned that it has any intention of purchasing the
property. The sections had their genesis in Part IV of the Town and Country
Planning Act 1959.
The sections
concerned are sections 192 to 207. I at once refer to such of them as are
presently material.
Section 192
deals with the scope of the provisions.
Subsection (1)
provides:
The
provisions of sections 193 to 207 of this Act shall have effect in relation to
land which (a) is land indicated in a structure plan in force for the district
in which it is situated either as land which may be required for the purposes
of any of the following functions, that is to say, those of a government
department, local authority or statutory undertakers, or of the National Coal
Board or the establishment or running by a public telecommunications operator
of a telecommunications system, or as land which may be included in an action
area; or (b) is land allocated for the purposes of any such functions by a
local plan in force for the district or is land defined in such a plan as the
site of proposed development for the purposes of any such functions; or
and I omit
(bb) and (bc) and pass to (c)
is land
indicated in a development plan (otherwise than by being dealt with in a manner
mentioned in the preceding paragraphs) as land on which a highway is proposed
to be constructed or land to be included in a highway as proposed to be
improved or altered . . .
The
descriptions in paras (a), (b) and (c) are among what is subsequently termed
‘the specified descriptions’: see subsection (6) of section 192. The word
‘functions’ in paras (a) and (b) includes both powers and duties: see section
290(1).
Section 193
deals with the power to serve a blight notice. I should read a part of
subsection (1):
Where the
whole or part of a hereditament . . . is comprised in land of any of the
specified descriptions, and a person claims that (a) he is entitled to an
interest in that hereditament . . . and (b) the interest is one which qualifies
for protection under these provisions; and (c) he has made reasonable
endeavours to sell that interest; and (d) in consequence of the fact that the
hereditament . . . or a part of it was, or was likely to be, comprised in land
of any of the specified descriptions, he has been unable to sell that interest
except at a price substantially lower than that for which it might reasonably
have been expected to sell if no part of the hereditament . . . were, or were
likely to be, comprised in such land, he may serve on the appropriate authority
a notice in the prescribed form requiring that authority to purchase that
interest to the extent specified in, and otherwise in accordance with, these
provisions.
The reference
to ‘the appropriate authority’ should be noted. Section 194 deals with
objection to a blight notice. I should read some of it. Subsection (1):
Where a blight
notice has been served in respect of a hereditament . . . the appropriate
authority, at any time before the end of the period of two months beginning
with the date of service of that notice, may serve on the claimant a
counternotice in the prescribed form objecting to the notice.
(2) Subject to the following provisions of this
section, the grounds on which objection may be made in a counternotice to a
notice served under section 193 of this Act are (a) that no part of the
hereditament . . . to which the notice relates is comprised in land of any of
the specified descriptions; (b) that the appropriate authority (unless
compelled to do so by virtue of these provisions) do not propose to acquire any
part of the hereditament . . . in the exercise of any relevant powers; . . .
(g) that the conditions specified in paragraph (c) and (d) of section 193(1) of
this Act are not fulfilled.
Again the
reference to the ‘appropriate authority’ should be noted.
Section 195
deals with the reference of an objection to a blight notice to the Lands
Tribunal. It is sufficient to read subsection (1):
Where a
counternotice has been served under section 194 of this Act objecting to a
blight notice, the claimant, at any time before the end of the period of two
months beginning with the date of service of the counternotice, may require the
objection to be referred to the Lands Tribunal.
The tribunal
may uphold or not uphold the objection. Where no objection is made, or where an
objection is referred and not upheld, then the appropriate authority is deemed
to be authorised to acquire the claimant’s interest compulsorily and to have
served a notice to treat: see section 196.
It is to be
remarked that if an objection on ground (b) of section 194(2) is either not
referred or is upheld, then in practice the blighting effect of a planning
proposal is removed.
I can pass
through the intervening sections direct to section 205. It has the shoulder
note ”Appropriate authority’ for purposes of these provisions’. Subsection (1)
reads:
Subject to the
following provisions of this section, in these provisions ‘the appropriate
authority’, in relation to any land, means the government department, local
authority or other body or person by whom, in accordance with the circumstances
by virtue of which the land falls within any of the specified descriptions, the
land is liable to be acquired or is indicated as being proposed to be acquired
or, as the case may be, any right over the land is proposed to be acquired.
(2) If any question arises — (a) whether the
appropriate authority in relation to any land for the purpose of these
provisions is the Secretary of State or a local highway authority; or (b) which
of two or more local highway authorities is the appropriate authority in
relation to any land for those purposes; or (c) which of two or more local
authorities is the appropriate authority in relation to any land for those
purposes, that question shall be referred to the Secretary of State, whose
decision shall be final.
(3) If any question arises which authority is the
appropriate authority for the purposes of these provisions — (a) section 194(1)
of this Act shall have effect as if the reference to the date of service of the
blight notice were a reference to that date or the date on which that question
is determined, whichever is the later.
I do not pause
upon paras (b) and (c).
It is the
provisions of subsections (1) and (2) which agitate in the present case. It is
conceded and agreed that the reference to the Secretary of State’s decision
being final does not preclude a decision being subject to judicial review. I
agree with that concession and agreement.
The facts of
the instant case are as follows. On November 21 1983 the Bournemouth Borough
Council adopted the Boscombe Local Plan. That plan contained a number of
proposals. Among them are proposals in regard to an area identified on Inset
Plan No 2 and referred to as land at Haviland Road. The total area concerned is
6.3 hectares.
The proposals
are to be found at s4(ii) and (v) and T2.
S4(ii). A new
section of road from Palmerston Road to Ashley Road, as identified on Inset
Plan No 2, is a pre-requisite of any redevelopment to achieve satisfactory
vehicular access to car parks, bus station and servicing areas. Any planning
application submitted for the redevelopment should, therefore, include the new
road, together with improvements to the existing Ashley Road and Palmerston
Road and improvements to their junctions with Christchurch Road. A substantial
contribution towards the provision of this road and its associated improvements
will be required from the developer.
S4(v).
Appropriate uses upon redevelopment on that part of the site south of the new
road include: (a) retail floorspace (b) sports facilities (c) a limited number
of small suites of offices above ground floor (d) residential units.
T2. A two-way
single carriageway relief road for that part of Christchurch Road identified as
the main shopping centre (Palmerston Road to Ashley Road) shall be built in
association with redevelopment in the Haviland Road West area. This road shall
use the southern ends of Palmerston Road and Ashley Road suitably widened,
improved and linked to Christchurch Road and there shall be roundabouts at the
junction of the new road with Palmerston Road and with Ashley Road (Inset Plan
2).
Implementation
of these proposals is dealt with in chapter 5 of the plan where, at para 5.4.1,
it is said:
It is
expected that the majority of land required for development proposals within
the Local Plan area will be assembled through normal negotiating procedures
between developers and the respective existing owners of land. The Council has
agreed to enter into discussions as landowner in respect of its future interest
in land now owned by the Authority in accordance with normal procedures
following approval of the Local Plan. Only in exceptional circumstances will
the Local Planning Authority consider utilising its Compulsory Purchase Order
powers as Planning Authority to obtain sites required for development. If,
however, the implementation within the Plan period of comprehensive development
proposals identified below are prejudiced because a certain piece of land is
not available or cannot be negotiated between the owners and potential
developers, the Local Planning Authority will consider Compulsory Purchase of
the site.
Among the
‘proposals identified below’ is proposal s4, the Haviland Road area. The
reference to compulsory purchase powers is a reference to the familiar powers
contained in section 112 of the Act of 1971.
The paragraph
continues:
It must be
made clear that this option will only be pursued in circumstances in which the
objectives of a proposal are likely to founder in the absence of a particular
part of the development site. Accordingly, it is anticipated that the use of
Compulsory Purchase powers by the Local Planning Authority will occur in only a
few instances where the problems of site assembly are complex and cannot be
resolved by negotiation. It is anticipated that the Local Planning Authority
will invite developers to submit their schemes in order to determine their
acceptability, prior to discussions in respect of any use of Compulsory
Purchase powers.
Implementation
of certain road proposals is dealt with in para 5.4.2:
The Local
Highway Authority may use compulsory purchase powers under the appropriate
Highways Acts to achieve implementation of the schemes identified in the
following policies and proposals, where the land cannot be acquired by
negotiation: (i) That part of proposal T2 which requires alterations to the
junctions of Christchurch Road with Palmerston Road and Ashley Road, and of
Ashley Road and Palmerston Road between Christchurch Road and Haviland Road.
The local
highway authority is the Dorset County Council, in which capacity they are the
second respondent to these proceedings.
A Mr S H
Saunders, who is the third respondent to these proceedings, is the lessee of
premises at 8-10 Palmerston Road. The premises are wholly within the area
subject to proposal s4 and is in part affected by the proposal T2.
On February 20
1984 he served a notice under section 193 of the Act of 1971 asserting that his
hereditament was land falling within para (b) of section 192(1). The notice was
served upon the Bournemouth Borough Council.
On April 6 the
Bournemouth Borough Council served a notice of objection on the grounds that
the conditions specified in paras (c) and (d) of section 193(1) were not
fulfilled.
It is to be
observed that no objection was based on grounds (a) and (b) in section 194(2).
The notice of objection was referred, on a date unknown to me, by Mr Saunders
to the Lands Tribunal. Proceedings in the Lands Tribunal have been stayed
pending the resolution of this application.
On August 24
1984 Mr Saunders served a second blight notice, this time upon the Dorset
County Council. Again his assertion was that his hereditament was land falling
within para (b) of section 192(1). I believe, but do not know, that the county
council served a notice of objection.
On September
26 1984 the borough council wrote to the Secretary of State a letter which
contained the following passage:
I would be
grateful if this letter could be taken as a formal request pursuant to section
205(2) of the 1971 Act for the Secretary of State to determine which of this
Council and the Dorset County Council is the appropriate authority to receive a
blight notice in this matter.
On October 17
the Dorset County Council made a similar application. The two applications were
determined by the Secretary of State on March 18 1985. On that day he wrote
letters in identical terms, save as to addressee. It is the decision sent to
Bournemouth Borough Council which is challenged upon this application. The Dorset
County Council has not, I am told, challenged the decision upon its
application.
I should read
the decision letter so far as material.
I am directed
by the Secretary of State for the Environment to refer to applications from
Bournemouth Borough Council and Dorset County Council for him to determine
under section 205(2) of the Town and Country Planning Act 1971 the appropriate
authority for the purpose of service under section 193 of that Act of a blight
notice in relation to property at 8/10 Palmerston Road, Boscombe.
There is then a
reference to the correspondence.
Para 2 refers
to the definition in section 205(1) and I pass to para 3.
In the present
case it is noted that the Boscombe Local Plan indicates that part of the
property will be required for a proposed new road which, if built, will be the
responsibility of the Dorset County Council as the Highway Authority. At the
same time the whole of the property also falls within the area bounded by
Palmerston Road, Ashley Road, Gladstone Road and Haviland Road which the Plan
indicates is to be redeveloped for commercial purposes. The Bournemouth Borough
Council have said that if necessary they will use their compulsory purchase
powers to acquire land to implement these proposals. On these facts it is concluded
that the property falls within both paragraph (b) and paragraph (c) of section
192(1) of the 1971 Act; and that ‘the appropriate authority’ is Bournemouth
Borough Council in so far as the property is within paragraph (b) and Dorset
County Council in so far as the property is within paragraph (c).
4. The
representations made to the Secretary of State appear to have been based on the
assumption that he would decide which of the local authorities concerned should
be the recipient of a blight notice in this case; and this is presumably
because section 205(2) provides that where any question arises, the Secretary
of State is to determine ‘which of two or more local authorities is the
appropriate authority in relation to any land’. That provision has to be read,
however, in the context of the definition of ‘the appropriate authority’ in
subsection (1) of section 205, under which ‘the appropriate authority’ is
identified as the authority by whom, ‘in accordance with the circumstances by
virtue of which the land falls within any of the specified descriptions’, the
land is liable to be acquired. The Secretary of State is advised that the power
which is conferred on him by the section is to determine, in respect of any
class into which the land falls, which authority is liable to acquire the land:
and that where the land falls within more than one specified class and the
authority whom he determines to be liable to acquire the land in relation to
one class is different from the authority liable to acquire the land in relation
to the other or others, the section does not provide for the Secretary of State
to choose between them and determine that only one of those authorities can be
served with a notice under section 193. In such a situation, it would in fact
appear to be open to a person entitled to an interest in that land to serve a
blight notice on any of the authorities which is an ‘appropriate authority’.
5.
Accordingly the Secretary of State hereby determines under section 205(2) of
the Town and Country Planning Act 1971 that the appropriate authority for the
service of a blight notice under section 193 of the 1971 Act in respect of the
property known as 8/10 Palmerston Road, Boscombe is: (a) in relation to the
whole of the property, the Bournemouth Borough Council (in the light of the
allocation of the land in the local plan for redevelopment purposes); and (b)
in relation to that part which is defined in the local plan as the site of a
proposed highway, the Dorset County Council (as local highway authority).
Mr Rich for
the Secretary of State concedes that the reference to para (c) of section
192(1) in regard to the Dorset County Council is wrong. It is wrong because
para (c) applies only where the land is not dealt with in a preceding para of
subsection (1), and this land, so far as the county council was concerned, was
within para (b) as being land defined for a highway function. The reference
accordingly, in regard to Dorset, should also have been to para (b), but Dorset
County Council do not complain.
Mr Ouseley for
the applicant seeks to flaw the Secretary of State’s decision on two grounds:
(1) under section 205(2) the Secretary of State must select one and only one
authority in regard to one blight notice in regard to the same land; (2)
Bournemouth Borough Council could not be an appropriate authority because the
land does not fall within para (b) of section 192(1).
In regard to
the first ground of challenge, Mr Ouseley draws attention to the language of
section 205(1) and (2) and to the structure and purpose of the group of
sections of which it is a part.
Section 205(1)
refers to ‘the appropriate authority’ and is drawn in the singular. Section
205(2) postulates the selection of one from two or more. The use of the
definite article in both subsections echoes the use of that article in sections
193 to 196. It would, said Mr Ouseley, be surprising if there could be more
than one deemed notice to treat in regard to the same land.
However, Mr
Rich for the Secretary of State contemplates a plurality of notices to treat
with equanimity, while agreeing that there can be but one appropriate authority
in relation to any set of circumstances by virtue of which land falls within
any of the specified descriptions.
If, he said,
there be two sets of circumstances then there will be two appropriate
authorities. Such an approach, says Mr Rich, would enable a claimant to obtain
a disclaimer of an intent to acquire from both, while the selection of one
would leave the blight imposed by the other unresolved.
I find the
problem posed in this case perplexing in that there is no satisfactory answer.
Neither counsel suggested that their argument achieved a satisfactory solution.
However, and not without hesitation, I conclude that Mr Rich is correct in his
submissions. If there are two sets of circumstances by virtue of which land
apparently falls within any of the specified descriptions, then there may be
two appropriate authorities. There could not be three or four, but two. Such an
approach does enable a claimant to obtain a disclaimer from both and avoids the
question of how the Secretary of State would decide between the two. There
would seem to be no rational basis upon which he could.
The case where
there is a single set of circumstances by virtue of which land falls within any
specified description but where there is dubiety in those circumstances as to
which one authority is to acquire is of course different and is a more obvious
case for resolution under section 205(2)(c).
I have used
the phrase ‘by virtue of which land apparently falls’. In so doing it may be
objected that I am putting a gloss on the language of section 205(1). I think
that I am, but I do so in order to prevent the Secretary of State adjudicating
upon whether land falls within any of the specified descriptions. That is a
matter which Parliament has entrusted to the Lands Tribunal.
If the
Secretary of State did so adjudicate, he could decide that land did not fall
within any specified descriptions and that accordingly there was no appropriate
authority at all, with the consequence that pursuit of the claimant’s notice
becomes impossible in practice.
I cannot think
that Parliament could have intended an elaborately constituted procedure to be
avoided by an adjudication under section 205(2). In my judgment the Secretary
of State must proceed on the basis that what is asserted by the claimant is the
case.
I am conscious
that my answer to the question posed leaves open the possibility of two deemed
notices to treat in relation to the same land. However, I do not think that
this possibility gives rise to any problem in point of law. The claimant at his
option could proceed with either and any difficulties are essentially of a
pragmatic nature.
In my judgment
Mr Ouseley’s second argument, that is to say that in regard to the Bournemouth
Borough Council this land is not within section 192(2)(b), does not arise. The
Secretary of State cannot determine that matter. I have sought to explain why.
It will have to be determined by the Lands Tribunal in consequence of the
notice of objection served by the Bournemouth Borough Council on May 14 1985,
in consequence of the liberty afforded by section 205(3)(a). That notice goes
beyond the original objection.
In considering
that notice of objection the tribunal will no doubt have regard to the decision
of the Court of Appeal in Bolton Corporation v Owen [1962] 1 QB
470. I have been asked to analyse that decision for the benefit of the
tribunal. I do not regard it as any part of the function of this court, tempting
as it may be, to offer advice upon questions which are not before it and which
will not be before it.
For the
reasons I have endeavoured to give, this application will be dismissed. I add
that the Secretary of State’s decision letter has a conceded imperfection. As I
have said, it affects Dorset County Council, who do not complain of it. I do
not regard it as affecting Bournemouth Borough Council or as giving them any
entitlement to relief.
The
application was dismissed with costs.