Town and Country Planning Act 1971, section 180 — Purchase notice — Application to quash decision of Secretary of State for the Environment refusing to confirm a purchase notice served by applicants on a local authority — Construction of section 180(1) — Land, for which planning permission had been refused for residential development and for preparations for an industrial estate, consisted of about 37 acres of poor quality — Part of it could have been used for simple agricultural operations during spring and summer months — For this reason the Secretary of State, rejecting the recommendation of his inspector, declared that he was not satisfied that the land had become incapable of reasonably beneficial use in its existing state — Various constructions of section 180(1)(a) — Whether the words ‘has become incapable of reasonably beneficial use in its existing state’ mean that all the land, taken as a whole, has become incapable, or that each constituent part of all the land has become incapable, or that the greater part of all the land has become incapable — Held, accepting the applicants’ submission, that the first of these constructions was correct and that section 180(1)(a) was to be read as meaning ‘that all the land taken as a whole has become incapable of reasonably beneficial use in its existing state’ — Secretary of State’s decision quashed
This was an
application under section 245 of the Town and Country Planning Act 1971 to
quash the Secretary of State’s decision refusing to confirm a purchase notice
served on the second respondents, Wigan Metropolitan Borough Council, by the
applicants, Arthur Wain and others, owners of a piece of land at Martland Mill,
Wigan. The third respondents, Greater Manchester County Council, were the
planning authority which had refused the applicants planning permission for the
development of the land in question.
N R Macleod QC
and J Howell (instructed by Sidney Torrance & Co, agents for Ellison,
Blank, Goldsmith & Co, of Manchester) appeared on behalf of the applicants;
Simon Brown (instructed by the Treasury Solicitor) represented the first
respondent, the Secretary of State; the second and third respondents were not
represented and took no part in the proceedings.
Giving
judgment, WEBSTER J said: This is an application to quash a decision of the
Secretary of State for the Environment dated August 19 1980 in relation to land
at Martland Mill, Wigan. The Secretary of State’s decision was that a purchase
notice served in respect of that land by the applicants under section 180 of
the Town and Country Planning Act 1971 be not confirmed.
The land in
question consists of an area of about 37 acres or 12.6 hectares of land
situated about two miles to the north west of Wigan town centre. It is
irregularly shaped and is on two levels. According to the inspector’s report,
the southern half is gently undulating with several gullies running through it,
dotted with thorn bushes and, at the time of the inspector’s visit in the
summer of 1980, much of it was covered with grass, some of it waist high. At
the eastern end of that southern half is a small detached dwelling which is
vacant and has been vandalised but is capable of being rehabilitated, a dutch
barn in reasonable state of repair and a ruin of a brick building which might
once have been a garage. The northern half of the site is covered with a
mixture of grass, weed and reed. A main sewer runs through this area. There are
a number of concrete protrusions marking the line of the sewer and several
visual patches of disturbed ground. At the western end is a reed-covered pond.
The embankment separating the two halves of the site has a varying gradient.
Near the middle of the embankment are some former sand or gravel workings and
the slope in that area is almost precipitous.
The applicants
are the owners of that land, and at about the end of September or beginning of
October 1978 (the precise date does
development and one for layouts of roads and sewers for an industrial estate.
Those applications were made to the second respondents, the Wigan Metropolitan
Borough Council.
On April 26
permissions for each of those developments were refused by the third
respondents, the Greater Manchester County Council. The reasons for the refusal
of those permissions are immaterial for the purposes of this judgment. Neither
the second nor the third respondents appeared at the hearing.
On December 3
1979 the applicants, as they were entitled to do, served a purchase notice
under section 180 of the Town and Country Planning Act 1971 on the second
respondents, the Wigan Metropolitan Borough Council. That notice contained the
following terms:
. . . we
claim: (a) that the land has become incapable of reasonably beneficial use in
its existing state, and (b) that it cannot be rendered capable of reasonably
beneficial use by the carrying out of any other development for which planning
permission has been granted or is deemed to be granted, or for which the local
planning authority or the Secretary of State have undertaken to grant
permission and we hereby require the Metropolitan Borough of Wigan Council to
purchase our interest in the said land, namely the freehold interest.
On February 29
1980 the second respondents served a notice under section 181(1)(c) of the Act
stating that, for the reasons specified in the notice, they were not willing to
comply with the purchase notice. Again it is not necessary to recite the
reasons, but I note in passing (although no point is taken on it and it is
immaterial for the purposes of this judgment) that that notice did not in terms
comply with the requirements of section 181(1)(c).
By a letter
dated May 1 1980 the first respondent (the Secretary of State for the
Environment) gave notice of his proposal to confirm the purchase notice,
whereupon the second respondents (the Wigan Metropolitan Borough Council)
required an opportunity to be heard about the proposal. The Secretary of State
appointed an inspector to conduct a hearing, and the hearing took place on July
8 1980. All those procedures were in accordance with the provisions of section
182 of the Act.
On July 19
1980 the inspector reported to the minister, and his comments included the
following paragraphs which I will quote in full. Paragraph 42 of his report
reads:
Although it
would appear that this land was farmed as a separate holding some years ago, I
am satisfied from the evidence that the acreage is too small and the quality of
the land too low for it to be regarded as a viable agricultural unit under
present-day standards and conditions. I am also satisfied that because of lack
of demand or of access it could not be farmed in conjunction with adjoining
land.
Paragraph 43
reads:
The southern
half of the site (in their separate calculations both parties arrived at a
figure of 56 per cent) could be used for livestock grazing or hay production
now and with normal husbandry its yields could be increased. But without farm
buildings, and I am not persuaded that it would be economical to provide them,
the use would be confined to the spring and summer months. Even so, if this
part of the site could be considered separately it would, together with the
dwelling which in my opinion could be brought back into use with works not
involving development, be capable of reasonably beneficial use. However, my
interpretation of section 180(1) of the Act is that its provisions must apply
to the purchase notice site as a whole and that it is not open to the Secretary
of State to say that the provisions are satisfied in relation to part of the
site. I accept that the northern part of the site, a large part of which the
borough council had previously proposed including in a land reclamation scheme,
would need a substantial initial outlay to bring it into any form of
agricultural use and the return to be expected from the limited use to which it
could then be put would not warrant such an outlay. So, taking the notice site
as a whole, I am of the opinion that, on balance, it has become incapable of
reasonably beneficial use in its existing state.
Then in the
next paragraph he deals with the question of alternative development for the
purposes of section 183(3) of the Act, which I need not refer to at this stage.
Then in
paragraph 45 he gives his recommendation, which is: ‘I recommend that the
purchase notice be confirmed.’
The minister
did not accept either that recommendation or the construction of section 180
put upon that section by the inspector, and indeed it is clear that he did not
accept the recommendation because he did not accept that construction. I quote
from three paragraphs of the minister’s letter, which is a letter dated August
19 1980. In paragraph 4, having set out the parts of the inspector’s report and
the history of the matter, he said:
Consideration
has been given to the report of the inspector, who has recommended that the
purchase notice be confirmed.
5. It is
noted that at paragraph 43 in his report the inspector concludes that the
southern part of the site estimated by the parties to be 56 per cent of the
site is capable of reasonably beneficial use for agricultural purposes, but
recommends confirmation of the notice as he interprets section 180(1) of the
Act to mean that the notice must be confirmed unless the whole of the site is
found to be capable of reasonably beneficial use.
I close the
quotation at that moment in order to observe that, where the minister writes
that the inspector interprets section 180(1) of the Act to mean that the notice
must be confirmed ‘unless the whole of the site is found to be capable‘,
that in fact is not a precisely accurate reflection of the inspector’s view.
But it seems to me that that matters not for the purpose of the present appeal
or the argument in relation to it.
I continue
quoting from paragraph 5 of the minister’s letter:
However, that
section gives, to an owner of land who claims that the land has become
incapable of reasonably beneficial use in its existing state following the
refusal or conditional grant of planning permission to develop that land, the
right to serve a purchase notice in respect of that land. The view is taken
that where an owner of land makes such a claim he is making it in respect of
the whole of the land in question. It therefore follows that the servers of
this purchase notice have not made good their claim as part of the site,
approximately 56 per cent, is capable of reasonably beneficial use for
agricultural purposes. The Secretary of State, therefore, cannot be satisfied
that the conditions specified in section 180(1)(a) have been fulfilled in
respect of the whole of the land.
Paragraph 6
reads:
Although in
his letter of May 1 1980 the Secretary of State proposed to confirm the
purchase notice, he is now not satisfied that the condition specified in
paragraph (a) of subsection (1) of section 180 is fulfilled. Accordingly, he
has decided not to confirm the purchase notice.
Then the
letter continues by giving the applicants notice of the rights that they have
under the relevant legislation to challenge that decision.
The applicants
contend that that decision was wrong. The point is a very short one and
revolves at first sight simply around the provisions of section 180(1)(a) of
the Act, which provide as follows:
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 . . . he may . . .
serve on the
appropriate council
a notice
requiring that council to purchase his interest in the land in accordance with
the following provisions of this Part of this Act.
Perhaps it is
convenient at this stage, while quoting from the sections, to refer straightaway
to the provisions of section 183(1), which are in these terms:
Subject to
the following provisions of this section and to section 184 of this Act, if the
Secretary of State is satisfied that the conditions specified in section
180(1)(a) to (c) of this Act are fulfilled in relation to a purchase notice, he
shall confirm the notice.
The question
revolves around the meaning to be given to the words ‘any land’ and ‘the land’
in section 180(1)(a), and in particular to the meaning to be given to those
words for the purpose of construing the words in paragraph (a) ‘that the land
has become incapable of reasonably beneficial use in its existing state’.
Section 290,
an interpretation section which governs the Act as a whole, contains a
definition of ‘land’, which is: ”land’ means any corporeal hereditament,
including a building . . . .’ But that
is not of
hereditament’ is not defined for the purposes of this section, nor is the word
‘hereditament’, although I do observe that the word ‘hereditament’ is defined
in section 207(1) for the purpose of the provisions referred to in that section
as meaning: ‘the aggregate of the land which forms the subject of a single
entry in the valuation list for the time being in force for a rating
area.’ But that word has that meaning
only for the purposes of sections 192 to 207, it does not expressly have that
meaning for the purposes of sections 180 or 183, and in relation to those
sections one is thrown back therefore upon the ordinary principles of statutory
construction.
When the
matter was first argued, possibly partly because of my prompting, the question
was expressed in these terms: Is the minister to be satisfied that the whole
land has become incapable of reasonably beneficial use in its existing
state, or has he to be satisfied that the land as a whole has become
incapable of reasonably beneficial use in its existing state? As will be seen, this beguilingly succinct
way of expressing the point is, as it seems to me, misleading. But before
rephrasing the question I will mention two authorities to which I was referred.
In Smart
& Courtenay Dale Ltd v Dover Rural District Council (1972) 23 P
& CR 408, the claimants had served a purchase notice pursuant to section
129 of the Town and Country Planning Act 1962, which was substantially to the
same effect as section 180 of the 1971 Act. Having served that notice, it was
then discovered that they did not own all the land in question. The question
then having arisen as to their rights in relation to that notice, the Lands
Tribunal held that whenever the words ‘the land’ are used in section 129(1) of
the 1962 Act they refer to the totality of the land.
To rather
similar effect is the judgment of May J in Plymouth Corporation v
Secretary of State for the Environment [1972] 1 WLR 1347. There a question
arose under section 32 of the Town and Country Planning Act 1968 which was for
all practical purposes in precisely the same terms as what is now section 184
of the 1971 Act. It is not necessary for me to recite the facts or the issues
that arose in that case, but it is sufficient to say that May J held, in
effect, that reference to the words ‘any land’ and ‘the land’ in section 32 of
the 1968 Act were references to the totality of the land. He did not give his
judgment in precisely those terms but I think it is sufficient to say that that
is the effect of that judgment.
I am satisfied
that those expressions ‘any land’ and ‘the land’ in section 180(1) have the
same meaning as they were held to have in those two cases and that they refer
to the totality of the land or, which comes to the same thing, to all of it.
But that does not seem to me to conclude the question.
As I have
already said, it does not seem to me that the question at issue is adequately
expressed by posing as alternative meanings of the words ‘the land’ in
paragraph (a), the meaning ‘all the land’, or the meaning ‘the land as a
whole’, because, assuming as I do that the words ‘the land’ in paragraph (a)
mean ‘all the land’, it is still necessary to consider the meaning of the words
which follow, namely, ‘has become incapable of reasonably beneficial use in its
existing state’. Do those words mean that all the land, taken as a whole,
has become incapable of reasonably beneficial use in its existing state; or do
they mean that each constituent part of all the land has become
incapable of reasonably beneficial use in its existing state; or is there a
third possibility that they mean that the greater part of all the land
has become incapable of reasonably beneficial use in its existing state.
If those words
are to be given the first meaning, as the applicants contend, the minister’s
decision was wrong because, although 56 per cent of the totality of the land is
capable of reasonably beneficial use for agricultural purposes, the inspector
has found that despite that fact the land, taken as a whole, has become
incapable of reasonably beneficial use in its existing state. If, on the other
hand, the words are to be given the second or third of the three meanings which
I have just posed, then on the face of it the minister’s decision was
irreproachable.
Which of those
three constructions is right is very largely a matter of impression. As a
matter of impression, I would favour the applicants’ contentions and the
inspector’s view against that of the minister. I would also favour the
applicants’ contentions simply as a matter of construction because, if their
contention is correct, it gives more apparent effect to the word ‘its’ in the
expression ‘in its existing state’, and because it seems less necessary to add
the words ‘taken as a whole’ in order to give express effect to their
construction than it does to add one or other of the other expressions that I
have emphasised in order to give express effect to one or other of the other
possible constructions. Moreover, as a matter of practicality, on which each
side relied, it would seem to me perhaps easier to have regard to the land as a
whole in determining the question of reasonably beneficial use than to have to
have regard to separate parts of its, because it may well be thought to be
unrealistic in many cases to sever one part of the land from the rest of it for
the purposes of considering that question.
If, therefore,
in deciding this matter of construction I were to have regard only to the
provisions of section 180(1) I would take the view that the appellants’
contention is correct and that in deciding whether all the land is reasonably
capable of beneficial use in its existing state it is necessary to have regard
to the land as a whole. That is my preliminary conclusion.
There are
however references in the Act to ‘part’ of the land in the context of purchase
notices, and the provisions in which those references are contained must,
therefore, constitute part of the context of section 180(1) to which particular
regard should be paid in resolving the present issue of construction to which
that subsection gives rise. Those two references are contained in section
183(3) and (4). As to section 183(4) it is, I think, common ground in argument
that that subsection takes the argument no further because in practice it does
not contemplate the division of the land in the owner’s hands, but only, after
the purchase of the land, as between one local authority or statutory
undertaking and another. But an argument can be founded in reliance upon
section 183(3) as Mr Simon Brown, on behalf of the minister, has done.
Before
reciting the provisions of that subsection it is necessary to recite first the
provisions of section 183(2), which are in the following terms:
If it appears
to the Secretary of State to be expedient to do so, he may, in lieu of
confirming the purchase notice, grant planning permission for the development
in respect of which the application was made, or, where planning permission for
that development was granted subject to conditions, revoke or amend those
conditions so far as appears to him to be required in order to enable the land
to be rendered capable of reasonably beneficial use by the carrying out of that
development.
It is to be
noted that that subsection gives to the minister no express power to
distinguish between one part of the land and another, even in circumstances in
which a condition relates only to part of the land. In view of the express
reference to ‘any part of the land’ in subsection (3) which follows, I conclude
that, in exercising his powers under subsection (2), the minister has no power
to distinguish between one part of the land and another. Section 183(3)
provides:
If it appears
to the Secretary of State that the land, or any part of the land, could be
rendered capable of reasonably beneficial use within a reasonable time by the
carrying out of any other development
that is to say
any development other than the development in respect of which the application
was made
for which
planning permission ought to be granted, he may, in lieu of confirming the
purchase notice, or in lieu of confirming it so far as it relates to that part
of the land, as the case may be, direct that planning permission for that
development shall be granted in the event of an application being made in that
behalf.
Mr Simon
Brown’s argument is that, if the inspector and the applicants are right and if
the minister is wrong, a strange anomaly would result, such that if the land
taken as a whole in its existing state is incapable of reasonably
beneficial use, but if part of it is capable of reasonably beneficial
use, then the minister must confirm the purchase notice in relation to all the
land; whereas if all of it, including that part, is incapable of
beneficial use in its existing state, but if part of it could be
rendered capable of beneficial use within the meaning of the subsection,
then the minister would have
direct that planning permission for the development of that part should be
granted (if an application is made). I am not convinced that any such anomaly
exists; for it seems to me that the fact that, in a given case, part of the
land is in its existing state capable of beneficial use would not
preclude the minister from exercising his discretion under subsection (3) upon
the basis that it could be rendered capable of reasonably beneficial
use. Such a construction is not inconsistent with the express meaning of the
words ‘any part of the land could be rendered capable of reasonably beneficial
use’, but it might be said to be inconsistent with what, it might be argued, is
implied in those words, namely, that that part of the land is in its
existing state incapable of reasonably beneficial use. But I do not find
any such inconsistency because, if the applicants’ construction of section
180(1)(a) is correct, it is not necessary for the minister to consider whether
any particular part of the land is, in its existing state, capable of
reasonably beneficial use. I am not, therefore, persuaded either in one
direction or the other by Mr Brown’s suggested anomaly.
None the less,
it seems likely to me that assistance, upon the construction of section
180(1)(a), may be gained from the provisions of section 183(3) and, in any
event, that those provisions must be carefully looked at before section
180(1)(a) is finally construed. My first impression was that those provisions
support the minister’s view, because at first sight they appear to contemplate that
the minister, in deciding whether the land in its existing state is capable of
reasonably beneficial use, may consider each part of the land and may then
confirm it for the whole, or for that part of it only (see the words ‘in lieu
of confirming it so far as it relates to that part of the land’). But on
reflection I have decided that that first impression was wrong, because those
words do not, as it now seems to me, contemplate either necessarily or even as
a matter of probability that in some cases the minister may decide, or be
required to decide, whether various parts of the land in its existing state are
capable of reasonably beneficial use.
It seems to me
merely that the words ‘in lieu of’ are misleading in that they may be thought
to give rise to the implication that the minister might confirm a purchase
notice in relation to a part only of the land. I do not think that they carry
that implication. In my view the effect of the subsection, as I construe it,
would have been more clearly achieved if the words following ‘he may’ were:
‘either confirm the purchase notice, or where all the land could be rendered
capable of reasonably beneficial use . . . direct that planning permission for
that development shall be granted in the event of an application being made in
that behalf, or where any part of the land could be rendered capable of
reasonably beneficial use . . . direct that planning permission for that
development shall be granted in the event of an application being made in that
behalf and confirm the purchase notice in relation to the remainder of the
land.’ The fact that it is necessary to
spell out the alternatives at such length in order to make them abundantly
clear perhaps explains why the draftsman, very understandably, resorted to the
shorter form of words which, on first impression but not on reconsideration,
led me to a construction of that subsection, and therefore towards a
construction of section 180(1)(a), which I now think is wrong.
There is,
therefore, nothing in section 183(3) which dissuades me from the preliminary
conclusion which I had reached, namely that the applicants’ contentions are
correct and that section 180(1)(a), rewritten in extenso, is in my
judgment to be given the meaning ‘that all the land taken as a whole has become
incapable of reasonably beneficial use in its existing state’.
I therefore
grant the application and quash the Secretary of State’s decision.
The decision
of the Secretary of State was quashed with costs. Leave to appeal was given.
