Town and Country Planning Act 1971, section 245 — Town and Country Planning (Control of Advertisements) Regulations 1984 — Enforcement notices requiring discontinuance of advertisements challenged — Various technical objections put forward — Application to quash and appeal fail
certain properties in Islington appealed to the Court of Appeal against the
dismissal by a deputy High Court judge of their application to quash
enforcement notices requiring the removal of advertisement panels which had
been erected on the properties — The planning authority had not served
enforcement notices on the actual advertisers as there had been some difficulty
about ascertaining their identity — The Secretary of State for the Environment
had accepted a recommendation from his inspector that the owners’ appeals
should be dismissed and the notices upheld — Hence the further proceedings by
the owners in the High Court and Court of Appeal
owners raised a number of technical objections to the validity of the
enforcement notices, only one of which, in the opinion of the Court of Appeal,
had even the
there having been an interval of one to two years between the authorising
council resolution and the service, was rejected — The cases of Simpsons Motor
Sales (London) Ltd v Hendon Corporation and Collector of Land Revenue South West
District Penang v Kam Gin Paik were distinguished as compulsory purchase cases
dealing with a wholly different situation — A complaint that the officer who
signed the notices, the acting borough solicitor, did not identify himself or
establish that he was ‘the proper officer’, likewise failed — An allegation
that the enforcement notices were invalid because they did not notify the
recipient of his right of appeal to the Secretary of State was groundless —
There was no requirement that such a right should be mentioned; cases cited by
appellants contained specific obligations to notify such a right
objection which had some point was the failure of the planning authority to
serve the enforcement notices on the actual advertisers — Regulation 16(2) of
the Town and Country Planning (Control of Advertisements) Regulations 1984,
which were in operation at the time, required service on the advertisers as
well as on the owner and occupier of the site — There was therefore here a
non-compliance with a statutory requirement — In dealing with this point
Balcombe LJ referred to Lord Hailsham’s speech in London & Clydeside
Estates Ltd v Aberdeen District Council, cited with approval by Sir John Megaw in
R v
London Borough of Greenwich, ex parte Patel, about the difference of degree between
cases of non-compliance and the discretionary jurisdiction of the court —
Balcombe LJ also referred to section 245(4)(b) of the 1971 Act, which governed
the present application and appeal — The court may quash the Secretary of
State’s action if satisfied, inter alia, ‘that the interests of the applicant
have been substantially prejudiced by a failure to comply with any of the
relevant requirements’ — In the present case the deputy judge, Mr Lionel Read
QC, was entitled to hold that the appellants had not been in any way prejudiced
by the failure to serve the advertisers — Appeal dismissed
The following
cases are referred to in this report.
Agricultural,
Horticultural and Forestry Industry Training Board
v Kent [1970] 2 QB 19; [1970] 2 WLR 426; [1970] 1 All ER 304, CA
Collector
of Land Revenue, South West District Penang v Kam
Gin Paik [1986] 1 WLR 412, PC
Graddage v Haringey London Borough Council [1975] 1 WLR 241; [1975] 1
All ER 224; (1974) 29 P&CR 441
London
& Clydeside Estates v Aberdeen District Council
[1980] 1 WLR 182; [1979] 3 All ER 876; (1979) 39 P&CR 549; [1980] EGD 207;
253 EG 1011, [1980] 1 EGLR 11, HL
Plymouth
Corporation v Hurrell [1968] 1 QB 455;
[1967] 3 WLR 1289; (1967) 65 LGR 543
R v Greenwich London Borough Council, ex parte Patel (1985) 84
LGR 241; 51 P&CR 282; [1985] 2 EGLR 256; [1985] JPL 851
R v Lambeth London Borough Council, ex parte Sharp (1988) 55
P&CR 232; [1987] JPL 440, CA
Simpson’s
Motor Sales (London) Ltd v Hendon Corporation
[1963] Ch 57; [1962] 3 WLR 666; [1962] 3 All ER 75; 60 LGR 393, CA
This was an
appeal by Swishbrook Ltd, owners of properties in Holloway Road, Islington,
London N19, from a decision of Mr Lionel Read QC, sitting as a deputy judge of
the Queen’s Bench Division, dismissing an application to quash the decision of
the Secretary of State for the Environment, who had dismissed the appellants’
appeal against enforcement notices requiring removal of advertisements on the
appellants’ properties. The planning authority was Islington Borough Council.
Norman B Primost
(instructed by Alan Ferster & Co) appeared on behalf of the appellants;
Christopher Katkowski (instructed by the Treasury Solicitor) represented the
Secretary of State for the Environment; the second respondents, Islington
Borough Council, were not represented and took no part in the proceedings.
Giving the
first judgment at the invitation of Mustill LJ, BALCOMBE LJ said: The
appellants, Swishbrook Ltd, are the owners of 612, 620 and 626 Holloway Road,
Islington, London N19. On these properties are certain advertisement panels. On
November 17 1983 the planning applications subcommittee of the London Borough
of Islington (‘the council’) authorised the taking of action to require the
discontinuance of the display of advertisements at these and other sites in the
Holloway Road. This resolution was unknown to Swishbrook until after the
service of the discontinuance notices. On June 2 1987 the council served on
Swishbrook and certain other persons a discontinuance notice in respect of the
advertisements on 620 Holloway Road, and on June 22 1987 discontinuance notices
in respect of the advertisements on 612 and 626 Holloway Road. In each case the
notice was signed by one David Lewis, without any indication of his position,
but in each case under cover of a letter which described him as ‘Acting Borough
Solicitor’. The council had some difficulty in finding out who were the
advertisers on each of these sites and in no case was the actual advertiser
served with a discontinuance notice.
Swishbrook
appealed to the Secretary of State for the Environment against the
discontinuance notices under regulation 22 of the Town and Country Planning
(Control of Advertisements) Regulations 1984 (‘the 1984 regulations’) and on
April 27 1988 his officer, Mr P Hellawell, heard representations on the appeals
by Swishbrook. By then it had been established that the advertisers at 612
Holloway Road were (from July 1 1987) Arthur Maiden Ltd, and they submitted an
appeal and were heard by Mr Hellawell. It had also been established that the
advertisers at nos 620 and 626 were Graefield Ltd, who submitted an appeal in
respect of no 620 (although not in respect of 626) Holloway Road, and who were
represented on the appeal by the same solicitors as Swishbrook.
Swishbrook
raised on the appeal the various technical points to which I shall refer later,
as well as the question of planning merits, and in a long and careful report
dated June 2 1988 Mr Hellawell recommended that the appeals be dismissed and
the discontinuance notices upheld. The Secretary of State accepted these
recommendations and by letter dated June 27 1988 dismissed the appeals.
Swishbrook then applied to the High Court to quash the Secretary of State’s
decision, and that application came before Mr Lionel Read QC, sitting as a
deputy High Court judge, who, on November 18 1988, dismissed it. Swishbrook now
appeal to this court.
Swishbrook’s
challenge to the validity of the Secretary of State’s decision was made under
section 245 of the Town and Country Planning Act 1971, that being the only
procedure open to them. Subsection (1)(b) of that section empowers any
person who is aggrieved by a relevant action of the Secretary of State (which
includes the dismissal of an appeal against a discontinuance notice) and
desires to question the validity of that action, on the grounds that the action
is not within the powers of the Act or that any of the relevant requirements
have not been complied with in relation to that action, to apply to the High
Court. Under subsection (4)(b) the High Court may quash the action if
satisfied that it is not within the powers of the Act, or that the interests of
the applicant have been substantially prejudiced by a failure to comply with
any of the relevant requirements in relation thereto. ‘Relevant requirements’
are defined by subsection (7), and the definition is wide enough to include the
requirement of regulation 16(2)(a) of the 1984 regulations that a
discontinuance notice shall be served on the advertiser and on the owner and
occupier of the site on which the advertisement is displayed. Before the judge,
Mr Katkowski, for the Secretary of State, disputed the jurisdiction of the
court under section 245 to rule on any of the technical points raised by
Swishbrook, except the non-service of the discontinuance notices on the
advertisers. The judge found it unnecessary to rule on that submission. Before
us, Mr Katkowski did not seek to press this objection to the jurisdiction in
view of the fact that the Secretary of State had himself considered and dealt
with the various technical objections to the discontinuance notices raised by
Swishbrook. Accordingly, I now turn to consider those objections.
(1) Delay
Mr Primost,
for Swishbrook, asserted that the discontinuance notices were invalid because
of the delay of one to two years between the resolution authorising them and
their service. For this assertion he relied on certain general statements of
principle to be found in the textbooks, eg in Bennion on Statutory
Interpretation at para 357:
Unless the
contrary intention appears, an enactment by implication imports the principle
of the maxim vigilantibus non dormientibus leges subveniunt (the
vigilant, not the sleeping, are aided by the laws);
and in Halsbury’s
Laws of England, 4th ed, vol 1(1), para 84, n.1:
There is some
authority to the effect that excessive delay in taking proceedings against a
person amounts to a breach of natural justice.
However, the
particular case on which Mr Primost sought to rely to support this submission
was Simpsons Motor Sales (London) Ltd v Hendon Corporation [1963]
Ch 57 and the following passage from the judgment of Upjohn LJ at p 82:
. . . when a
notice to treat has been served, it is the duty of the acquiring authority to
proceed to acquire the land within a reasonable time. Mr Molony, for the
corporation, has argued that mere delay in proceeding to enforce the notice can
never disentitle the acquiring authority from proceeding thereunder, but that
some additional circumstance is necessary before the owner can object to the
enforcement of the notice to treat against him. We do not accept this
proposition. If the acquiring authority do not proceed within a reasonable time
to acquire the property and pay the compensation, they may well lose their
rights to enforce the notice. It would be most unreasonable to permit an
acquiring authority, having given a notice to treat, to sit on their rights and
defer enforcement of the notice until it suits them. Lord Romilly MR pointed
out how unfair it would be on the owner in Richmond v North London
Railway Co (1868) LR 5 Eq 352, 358, nearly a century ago. How much more
unfair it is today in an age of rapidly increasing land values! The underlying assumption of Parliament is
that in conferring compulsory powers upon statutory authorities for public
purposes, the acquiring authority will act reasonably in the public interest,
that is, not only in the interests of their own ratepayers or shareholders, as
the case may be, but with due regard to the interests of the person being dispossessed.
What is a reasonable time for this purpose must depend upon the facts and
circumstances of each case.
This passage
was cited with approval in the judgment of the Privy Council in Collector of
Land Revenue South West District Penang v Kam Gin Paik [1986] 1 WLR
412 at p 416, where Lord Keith of Kinkel commented (at p 417):
As was made
clear in the Simpsons Motor Sales case the question whether the right to
proceed with acquisition proceedings has been lost by delay is a separate
question from that whether the acquisition has been abandoned. Delay contrary
to the express or implied statutory requirements is in itself a ground
invalidating proceedings which follow such delay, without the necessity of any
inference that the acquisition has been abandoned.
However, these
were both cases concerning the compulsory acquisition of land, where there had
been delay between the initiation of the process, known to the landowner, and
the subsequent procedure to assess the compensation payable. That seems to me
to be a wholly different situation to that which arose in the present case,
where Swishbrook had no knowledge of the 1983 resolution and were not in any
way affected by it. Regulation 16(1) of the 1984 regulations provides that the
local planning authority, ‘if they consider it expedient to do so’, may serve a
discontinuance notice. If there were such a delay between the resolution
amounting to the consideration by the local authority of what is expedient and
the service of the discontinuance notice, that it could be said that the
factors which motivated the local authority to come to their decision could no
longer support the service of the notice, then it might be possible to question
the service of the notice by the procedure of judicial review, but no such
question arose in the present case. I agree with the judge that there is no
substance in this point.
(2) Lack of authentication
(a) The first point under this head turns on the
failure to identify in the discontinuance notices the position of the signatory
David Lewis; Mr Primost submits that this failure rendered the notices invalid.
I start with the general proposition that local authorities are bodies
corporate and can act only in the way authorised by common law or statute. At
common law a document of a body corporate would normally require to be
authenticated by the fixing of the corporate seal. However, this would be
unduly inconvenient for the many thousands of documents which a corporation may
have to make or issue, and accordingly in the case of a local authority section
234 of the Local Government Act 1972 provides as follows:
(1) Any notice, order or other document which a
local authority are authorised or required by or under any enactment (including
any enactment in this Act) to give, make or issue may be signed on behalf of
the authority by the proper officer of the authority.
(2) Any document purporting to bear the signature
of the proper officer of the authority shall be deemed, until the contrary is
proved, to have been duly given, made or issued by the authority of the local
authority.
‘Proper
officer’ is defined by section 270(3):
(3) Any reference in this Act to a proper officer
and any reference which by virtue of this Act is to be construed as such a
reference shall, in relation to any purpose and any local authority or other
body or any area, be construed as a reference to an officer appointed for that
purpose by that body or for that area, as the case may be.
In some cases
the relevant statute requires that the document in question should be signed by
a specified officer of the local authority. That was the case in Plymouth
Corporation v Hurrell [1968] 1 QB 455 and Graddage v Haringey
LBC [1975] 1 WLR 241, on both of which Mr Primost relied. However, there is
no comparable requirement in the 1984 regulations in relation to the identity
of the signatory to a discontinuance notice. Like the judge I derive no
assistance from these cases.
Accordingly,
Mr Primost’s submission that not only must a notice bear the signature of the
proper officer of the local authority but it must appear on the face of the
notice that he is the proper officer is unsupported by authority. I can see
that it is desirable that a local authority’s notice should state the position
of the signatory, so that the recipient may know with whom he is dealing, but I
do not accept that the omission of the signatory’s position invalidates the
notice.
In any event
in the present case the discontinuance notices were sent under cover of letters
which identified David Lewis as the acting borough solicitor, so that there was
no suggestion of any prejudice to Swishbrook. This point is also devoid of
substance.
(b) The second point under this head made by Mr
Primost is that it was not established that the acting borough solicitor was
the proper officer of the council for the purpose of signing the discontinuance
notices. In his decision letter of June 27 1988 the Secretary of State accepted
‘from the evidence submitted by the Council, that the signatory to the notices
was the Acting Borough Solicitor and that he was duly authorised to sign and
issue the notices’. This was a decision to which the Secretary of State was
entitled to come: there is no error of law on his part and accordingly his
action cannot be challenged under section 245 of the 1971 Act. The judge was
right to hold that this point, too, failed.
(3) Lack of notice of right to appeal
Regulation 22
of the 1984 regulations confers upon the recipient of a discontinuance notice
the right to appeal to the Secretary of State. There is nothing in the
regulations, or otherwise, which provides that the discontinuance notice must
notify the recipient of his right to appeal. Mr Primost submits that without
such notification the notice is invalid. To support this submission he relies
on Agricultural, Horticultural & Forestry Industry Training Board v Kent
[1970] 2 QB 19. But once again this was a case where the relevant order — the
Industrial Training Levy (Agricultural, Horticultural and Forestry) Order 1967
— provided, by article 4(3), that:
An assessment
notice shall state the board’s address for the service of a notice of appeal or
of an application of an extension of time for appealing.
This court
held that an assessment notice which omitted this notice was bad. Mr Primost
relied on the following dictum from the judgment of Lord Denning MR (at p 24F):
It seems to
me quite plain — certainly when read in connection with the section I read at
the outset, section 4(3) of the Act itself — that it is implicit that the
farmer should be told that he has a right of appeal and that he should be given
the address for service of a notice of appeal
as
establishing the general proposition that where an Act confers on a person a
right of appeal there is to be implied a requirement that that person should be
given notice of that right. I do not read Lord Denning’s dictum as going that
far: certainly the other two judges (Salmon and Cross LJJ) did not support such
a proposition. Similarly, the House of Lords in London & Clydeside
Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 held that,
since article 3(3) of the Town and Country Planning (General Purposes)
(Scotland) Order 1959 required that if a local planning authority issued a
certificate of alternative development they should in that certificate include
a statement in writing of the rights of appeal, a certificate which did not
contain such a statement was vitiated. Like the learned judge, I do not find
that these authorities support Mr Primost’s general proposition; indeed, the
fact that the very detailed provisions of regulations 16 and 22 of the 1984
regulations do not include any requirement that a discontinuance notice shall
contain a reference to the right of appeal is a strong argument for saying that
no such requirement is to be implied. This point also lacks merit.
(4) Non-service of the discontinuance notices on
the advertisers
In my
judgment, this is the only one of Mr Primost’s points that
Where the
local planning authority serve a discontinuance notice, the notice —
(a) shall be served on the advertiser and on the
owner and occupier of the site on which the advertisement is displayed; and
(b) may, if the local planning authority think
fit, also be served on any other person displaying the advertisement.
The contrast
between the wording of subparas (a) and (b) of this para makes it
clear that the use of the word ‘shall’ in subpara (a), as opposed to the
discretion conferred by subpara (b), was to impose upon the council an
obligation to serve the discontinuance notices on the advertisers or, as is
sometimes said, that the requirement of regulation 16(2)(a) was
mandatory. It is common ground that the council did not serve the
discontinuance notices on the advertisers. What is the effect of that omission?
In London
& Clydeside Estates Ltd v Aberdeen District Council (supra) Lord
Hailsham of St Marylebone LC said (at p 189):
When
Parliament lays down a statutory requirement for the exercise of legal
authority it expects its authority to be obeyed down to the minutest detail.
But what the courts have to decide in a particular case is the legal
consequence of non-compliance on the rights of the subject viewed in the light
of a concrete state of facts and a continuing chain of events. It may be that
what the courts are faced with is not so much a stark choice of alternatives
but a spectrum of possibilities in which one compartment or description fades gradually
into another. At one end of this spectrum there may be cases in which a
fundamental obligation may have been so outrageously and flagrantly ignored or
defied that the subject may safely ignore what has been done and treat it as
having no legal consequences upon himself. In such a case if the defaulting
authority seeks to rely on its action it may be that the subject is entitled to
use the defect in procedure simply as a shield or defence without having taken
any positive action of his own. At the other end of the spectrum the defect in
procedure may be so nugatory or trivial that the authority can safely proceed
without remedial action, confident that, if the subject is so misguided as to
rely on the fault, the courts will decline to listen to his complaint. But in a
very great number of cases, it may be in a majority of them, it may be
necessary for a subject, in order to safeguard himself, to go to the court for
declaration of his rights, the grant of which may well be discretionary, and by
the like token it may be wise for an authority (as it certainly would have been
here) to do everything in its power to remedy the fault in its procedure so as
not to deprive the subject of his due or themselves of their power to act. In
such cases, though language like ‘mandatory,’ ‘directory,’ ‘void,’ ‘voidable,’
‘nullity’ and so forth may be helpful in argument, it may be misleading in
effect if relied on to show that the courts, in deciding the consequences of a
defect in the exercise of power, are necessarily bound to fit the facts of a
particular case and a developing chain of events into rigid legal categories or
to stretch or cramp them on a bed of Procrustes invented by lawyers for the
purposes of convenient exposition. As I have said, the case does not really
arise here, since we are in the presence of total non-compliance with a
requirement which I have held to be mandatory. Nevertheless I do not wish to be
understood in the field of administrative law and in the domain where the
courts apply a supervisory jurisdiction over the acts of subordinate authority
purporting to exercise statutory powers, to encourage the use of rigid legal
classifications. The jurisdiction is inherently discretionary and the court is
frequently in the presence of differences of degree which merge almost
imperceptibly into differences of kind.
This passage
was cited with approval in this court by Sir John Megaw in R v Greenwich
LBC ex parte Patel [1985] JPL 851*; see also R v Lambeth LBC ex
parte Sharp [1987] JPL 440.
*Editor’s
note: Reported also at [1985] 2 EGLR 256: see p 259K.
The reasoning
of this passage is entirely consistent with the relevant statutory provision in
the instant case, namely section 245(4)(b) of the 1971 Act, under which
the court may quash the Secretary of State’s action if satisfied that ‘the
interests of the applicant have been substantially prejudiced by a failure to
comply with any of the relevant requirements’. It is possible to imagine
circumstances in which the interests of the owner of an advertisement site
might be substantially prejudiced by a failure to serve a discontinuance notice
on the advertiser, but that is not the present case. I have already set out the
facts relating to the advertisers, and it is apparent that neither they nor
Swishbrook were in any way prejudiced by the fact that the discontinuance
notices were not served on them. The judge was accordingly entitled to hold
that, as Swishbrook had not been substantially prejudiced by the failure to
serve the advertisers, he should not quash the Secretary of State’s action in
dismissing the appeals.
It is not
clear from his judgment that the learned judge approached this point in
precisely the way in which I have done. Nevertheless he came to the right
answer in the circumstances.
I would
dismiss this appeal.
MUSTILL and MANN LJJ agreed and did not add anything.
The appeal
was dismissed with costs; an application for leave to appeal to the House of
Lords was refused.