Permission granted for bungalow in green belt on condition that existing farmhouse should be demolished–Obligation of a contractual nature enforceable by injunction–Developer must either demolish house or leave bungalow unoccupied
This was an
application by Beaconsfield District Council for an injunction restraining Mr
William Gams and his wife, Mrs Gladys Ellen Gams, from occupying or permitting
occupation of a bungalow built on green belt land at Iver Heath, Buckinghamshire,
until a farmhouse on the land had been demolished as required by a condition
subject to which planning permission for the bungalow had been granted.
Mr J Grove
(instructed by Lovell, White & King) appeared for the plaintiffs, and Mr M
Tennant (instructed by E D C Lord) represented the defendants.
Giving
judgment, CANTLEY J said that Mr Gams was a builder and builders’ merchant. In
1966 he bought Church Farm, Iver Heath, a farmhouse and 25 acres of land
situated in the green belt. The area was primarily agricultural, and the
intention of the plaintiffs as local planning authority for the district was
then, and was still, to keep it so. Building land in the green belt in the rich
country in Buckinghamshire was an extremely valuable commodity, and Mr Gams
realised there were great commercial potentialities in the development of the
25 acres of Church Farm, if such development were ever permitted. His (Cantley
J’s) impression of Mr Gams was that he was an astute businessman and a candid
and honest witness. He said in evidence that when he bought Church Farm he knew
that the land had good potential. He knew that applications for building
development had already been refused in the vicinity, and he knew that these
applications
was permitted. Mr Gams, with a building business of his own and some property,
was prepared to wait, although not, perhaps, to wait patiently. In the
meantime, he had bought the farm and he carried on pig-farming there.
In 1967 he let
the farmhouse to a US Army officer, and he himself lived in a house in Hayes,
Middlesex. In 1972 he conceived the idea of erecting a bungalow on the land. He
was 65, and the years went by all too quickly at that age. It seemed to him
that if he was going to live on Church Farm a bungalow would be more suitable
for him and his wife. In addition, at that time his mother-in-law lived with
him, and she could only climb stairs with great inconvenience, so that a
bungalow would be much better for her. It might also have occurred to Mr Gams
that a bungalow would be a very good piece of property to build on this land in
the game of Monopoly he was playing. He therefore wrote to the planning
authority on March 22 1972 saying that for medical reasons it was imperative
that he, his wife and her mother lived in a bungalow. He applied for permission
to build the bungalow, saying, ‘If I am given permission to build the bungalow,
I will demolish the farmhouse.’
Permission was granted on August 11 1972, and the planning authority
wrote the undertaking offered them into the conditions appended. They
stipulated that the bungalow was not to be occupied by anyone not in employment
on the farm or in local agriculture, and that it was not to be occupied at all
until the existing house was demolished to their satisfaction. They gave as one
of the reasons for imposition of these conditions the need for conformity with
green-belt policy. The bungalow was built, and Mr Gams entered into occupation
nearly 18 months ago, but the farmhouse was still not demolished. Further, it
was at least doubtful whether Mr Gams was employed in agriculture locally. If
he was, it would not be for much longer. He had let his 25 acres to an
ex-manager of his, who carried on the farm but lived in a house in Slough.
The situation
today, therefore, was that one had a man living in the bungalow who was
probably not employed in agriculture locally, a man who was engaged in
agriculture locally but lived in a house in Slough, and a farmhouse which was
still not demolished. While the bungalow was being built, Mr Gam’s 25-year-old
daughter got married. Her husband had his own electrical-goods business, and
they set up house at Ickenham, some five miles away from her parents. There was
nothing wrong with the farmhouse’s structure; he (his Lordship) had seen
pictures of the property, and there was nothing in its appearance to suggest
that it was ripe for demolition. Indeed, like the bungalow, it was a very nice
building. Mr Gams thought it would be most advantageous if his daughter and
son-in-law came to live in the farmhouse rent-free. The house had four large
bedrooms, a sitting room, a dining room, a kitchen and a study. In February
1973 Mr Gams’s solicitor wrote to the planning authority: ‘It does appear to
our client that it is a terrible waste of good accommodation for the farmhouse
to be demolished.’ He asked the council
for permission for the house to remain, at least for a limited period, to be let
to someone who was homeless. The council refused, and pointed out that the
demolition of the old farmhouse was the main basis under which permission for
the building of the bungalow was granted. Mr Gams appealed against the
council’s refusal to the Secretary of State, and his appeal was awaiting
decision. There were some further matters he (his Lordship) felt he should
mention. Mr Gams had made a number of applications in respect of this land for
residential development in 1970. In 1971 he applied for permission to erect two
filling-stations. Again in 1971 he applied for residential development. All
applications were refused. He had had another bungalow on the coast for six or
seven years, but the family lived in it only at weekends.
The failure to
demolish seemed to him (his Lordship) to be a calculated and flagrant breach of
a contractual obligation stated in plain terms and well understood by Mr Gams,
who had frankly admitted that he knew in 1972 he would get permission for the
bungalow only on the basis of the condition as to demolition. To get a benefit
for himself, he had entered into a bargain, his obligation under which he had
flouted from the outset. The council now applied for an injunction preventing
the occupation of the new bungalow until the existing farmhouse had been
demolished; in other words, they applied for the enforcement of Mr Gams’s
covenant. This was not a capricious restriction; it was a restriction imposed
on behalf of the public to preserve the green belt. The farmhouse was on
agricultural land which had not been classified in any other manner. If Mr Gams
preferred to live in a bungalow built on the land, he accepted that he would
have to remove the other house. He was not put under any direct pressure. He
understood these matters very well, and therefore had opened negotiations by
offering to make the agreement which he had since continued to flout. Paying
substantial damages would be a good proposition to him if he was left with two
attractive houses in the green belt. He was a businessman. There was nothing
unlawful or disgraceful in hoping to turn a farm of 25 acres into a housing
estate, provided it was done with planning permission, and there was nothing
disgraceful in making a profit out of it. But what Mr Gams could not do was
defy the planning authority by blatantly seeking to retire from the bargain he
had made. There would be an injunction restraining the defendants from
permitting the occupation of the bungalow until either the existing farmhouse
was demolished or the covenant had been discharged or modified, either by the
Minister, by successful application to the Lands Tribunal, or by agreement
between the defendants and the plaintiffs. The injunction would, however,
operate very harshly and cruelly if it came into effect too soon. Mr Gams was
awaiting the outcome of his appeal to the Minister, as to which he (his
Lordship) said nothing and decided nothing. Though Mr Gams had lost this round,
there was no reason why he should be dealt with harshly. The order would not be
enforced for two months.
BEACONSFIELD
DISTRICT COUNCIL v GAMS
In this case,
a report of which appeared in our issue of June 7 1975 (234 EG 749, [1975] 1
EGLR 144), the plaintiffs were successors to the Eton Rural District Council,
to whom in March 1972 the first defendant had applied for planning permission
for construction of a bungalow on some 25 acres of green belt land. Eton RDC
deferred consideration of the application pending the making of an agreement
under seal in pursuance of section 12 of the Buckinghamshire County Council Act
1957, subsections (1) and (2) of which provide as follows:
(1) Every undertaking given by or to [an
empowered council] or by the owner of any legal estate in land and every
agreement made between the council and any such owner being an undertaking or
agreement–
(a) given or made under seal on the passing of
plans or otherwise in connection with the land; and
(b) expressed to be given or made in pursuance of
this section;
shall be
binding not only upon the council and any owner joining in the undertaking or
agreement but also upon the successors in title of any owner so joining and any
person claiming through or under them.
(2) Any such undertaking or agreement shall be
treated as a local land charge for the purposes of the Land Charges Act 1925.
The
contemplated agreement under seal was made on August 9 1972, and by its terms
the first defendant undertook (1) that the bungalow should not be occupied
otherwise than by a person locally employed in agriculture, and (2) that the
bungalow should not be occupied until a farmhouse which stood upon the 25-acre
site had been demolished.
imposing conditions in substantially the same form as the undertakings
contained in the agreement under seal. As our report goes on to state, the
first defendant built the bungalow and had been in occupation of it for some 18
months, though it was at least doubtful whether he was employed in agriculture;
in addition, the farmhouse had not been demolished.
We have been
informed of the position with regard to the 1957 Act and the agreement of
August 9 1972 through the kindness of Mr A D Walker of Lovell, White &
King, solicitors for the plaintiff council. Mr Walker comments that the first
defendant was seeking to say, among other things, than an agreement such as had
been made by him with the local planning authority could be overruled by the
Secretary of State for the Environment on appeal. Subject to the points made
above, our account of the case (in particular, the paragraph at the end of the
report in which the core of Cantley J’s judgment in favour of the plaintiffs is
expressed) appears to be reliable. The flaw in the report is the statement in
the second paragraph of the judgment to the effect that the planning authority
had merely written the undertakings offered them into the conditions imposed on
the grant of planning permission. This was incorrect.