Town and Country Planning Act 1971 — Appeal by Secretary of State from judge’s decision allowing appeal
This was an
appeal by the Secretary of State for the Environment against a decision of
Webster J, who on an appeal by the present respondent, Dr Alderson, held that
an enforcement notice, served by the local planning authority and upheld by the
Secretary of State, was invalid because the word ‘locality’ in an agricultural
occupancy condition had no ascertainable meaning. The condition related to a
bungalow in the North Staffordshire green belt some 3 miles from Stone.
S Aitchison
(instructed by the Treasury Solicitor) appealed on behalf of the Secretary of
State; M Kingston (instructed by Hextall, Erskine & Co, agents for
Challinors-Dickson, of Hanley) represented the respondent, Dr Alderson;
Stafford Borough Council, the local planning authority, was not represented and
took no part in the proceedings.
Giving
judgment, WALLER LJ said: This is an appeal from a decision of Webster J
concerning an appeal under section 246 of the Town and Country Planning Act
1971, when he allowed an appeal against an enforcement notice which had been
served on the respondents.
The facts were
these. The case relates to a split-level bungalow situated in over an acre of
ground in the North Staffordshire Green Belt, some 3 miles from Stone, in a
part which is also scheduled as a special landscape area.
On September 6
1967 planning permission was granted to a Mr Riley and it was a condition of
that planning permission that:
The
occupation of the dwelling shall be limited to a person employed or last
employed locally in agriculture as defined in section 221 (1) of the Town and
Country Planning Act 1962 or in forestry or a dependant of such a person
residing with him (but including a widow or widower of such a person).
The bungalow
was built in 1968 and Mr Riley lived in it and farmed the 26 acres which
surrounded the bungalow from 1968 to 1970. In 1970 he stopped farming but
remained in the bungalow.
In 1978 the
respondent, Dr Alderson, bought the bungalow believing that the local authority
would not enforce that condition. Neither he nor his wife were at any time ever
employed in agriculture.
In November
1981 he applied to the local authority to discharge that condition, but they
refused to do so and in September 1982 the enforcement notice, which is the
subject of this appeal, was served. Dr Alderson appealed against that
enforcement notice to the minister, and an inspector was appointed. He held an
inquiry on January 27 1983. In due course the inspector gave his decision on
March 10 1983. It is unnecessary to read more than a small quotation from that
decision. He said:
Except for
the use of the word ‘locally’ in place of ‘in the locality’, the condition
which is the subject of the notice is the same as that recommended in Circular
24/73 which has since been used as the standard agricultural occupancy
condition. I have given careful consideration to the arguments put forward on
behalf of your client and to the legal judgments quoted but I have no reason to
believe that, by reason of the use of the word ‘locally’, the condition is
incapable of a reasonably precise interpretation and I do not consider that the
condition is void on the ground of uncertainty. The notice is therefore held to
be valid.
Dr Alderson
then gave notice of motion challenging that decision under section 246 of the
1971 Act, and on October 6 the appeal was heard by Webster J and, as I have
already mentioned, he allowed the appeal. Notice of appeal was served against
his decision and the matter now comes before this court.
Webster J, in
his judgment, came to the conclusion that the word ‘locally’ had no
ascertainable meaning. That had been the argument which had been put before
him, and he therefore came to the conclusion that the planning permission was
void, that the enforcement notice was void, and he allowed the appeal against
the decision of the minister.
As was
mentioned in the inspector’s report which I have quoted, we are told that this
form of words has been widely used over the country as a whole, the particular
form of words being set out in a Circular no 5 of 1968 and slightly altered to
‘in the locality’ in Circular C no 4 of 1973, although it was said, on behalf
of the respondents, that some authorities have preferred to spell out a precise
boundary to the area in which the agriculture is being carried on.
In Fawcett
Properties Ltd v Buckingham County Council [1961] AC 636 the
question arose as to whether a condition in a planning permission was void for
uncertainty. The condition there was not unlike the present condition, save for
the word ‘locally’. The House of Lords by a majority of four to one came to the
conclusion it was not void for uncertainty and Lord Morton came to the
conclusion that it was. It is helpful to cite part of the speech of Lord
Denning and also part of the speech of Lord Jenkins.
At p 678 of
the report, Lord Denning said this:
For I am of
opinion that a planning condition is only void for uncertainty if it can be
given no meaning or no sensible or ascertainable meaning, and not merely
because it is ambiguous or leads to absurd results. It is the daily task of the
courts to resolve ambiguities of language and to choose between them; and to
construe words as to avoid absurdities or to put up with them. And this applies
to conditions in planning permissions as well as to other documents.
Lord Denning
then refers to some of the examples which counsel put forward.
Then, at p
680, Lord Denning says this:
The
definition of ‘agricultural population’ in the Housing Acts is limited by the
context to the agricultural population ‘of the district’, that is, of the
locality. So here the words of the condition are to be read in the light of the
reasons which the planning authority are enjoined to give, see Crisp from
the Fens Ltd v Rutland County Council (1950) 1 P&CR 48. So read,
I am clearly of opinion that the word ‘agriculture’ does not include world wide
agriculture, nor even all England agriculture, but means agriculture in the
locality.
Lord Jenkins,
at p 693, said this:
It clearly
cannot be necessary to the validity of the conditions here in question that it
should be possible to identify all the persons who, according to the terms of
the condition, are at any given time eligible in point of employment or latest
employment to be let into occupation of the cottages. The owner is under no
obligation to let anyone into occupation, and, in particular, is under no
obligation to any person who satisfies the condition to let such person into
occupation on that account. If the owner was indeed subject to such an
obligation, it might well be necessary to the validity of the condition that it
should be possible to decide with certainty as regards each and every claimant,
whether he satisfied the condition or not. But as the case stands, the owner’s
obligation is merely not to allow occupation by any person who does not fall
within the limit as regards occupation imposed by the condition. That means
that it behoves the owner to satisfy himself that any proposed occupier does
fall within the prescribed limit before he lets him into occupation. If, on
investigation, the owner finds that the proposed occupier is clearly within the
prescribed limit he can, if he chooses, let him into occupation. If, on the
other hand, the owner finds that the proposed occupier is clearly outside the
prescribed limit he must, in order to comply with the condition, refuse the
application. Again, if it appears doubtful whether the proposed occupier does
or does not fall within the prescribed limit, the owner will be well advised to
refuse, and will be perfectly free to do so. Such being the position of the
owner, I see no reason why the possible occurrence of doubtful cases, which he
would be free to reject, should be held to invalidate the condition so as to
entitle him to let into possession persons clearly outside the permitted limit.
In my judgment
the word ‘locally’ has a perfectly intelligible meaning although some doubtful
cases may arise. If a doubtful case arises then it will be for the court to say
whether or not planning permission has been broken. There are many phrases used
in statutes where the final decision is one of fact for the tribunal. Lord
Jenkins makes this position clear in the passage which I have just quoted.
Accordingly,
in my opinion, this was a valid condition in the planning permission. The enforcement
notice clearly set this out and the inspector rightly upheld the notice and
refused to discharge the condition. I would respectfully differ from the
conclusion to which Webster J came and I would allow this appeal, holding that
the condition was a valid one and should not be discharged.
Agreeing, FOX
LJ said: The precise ambit of the word ‘locally’ may give rise to doubts. The
question we have to determine, however, is not whether it is so uncertain that
effect cannot be given to it. We are not dealing with the question of a
condition subsequent, failure to comply with which may destroy property
interests under trusts and other dispositions or rights or interests in
property. No doubt, as was pointed out in Fawcett Properties Ltd v Buckingham
County Council [1961] AC 636, at p 692, such conditions must be such that
the court can see from the beginning precisely and distinctly upon the
happening of what events they will operate and thus destroy the property
interest previously given.
In considering
this case, I do not lose sight of the fact that the owner of property which was
built with a planning permission which is subject to such a condition as was
imposed in this case is subjected to penal consequence for failure to comply.
But it is necessary to consider what the owner’s obligation truly amounts to.
He has to be sure that the proposed occupier does not fall within the
restriction upon occupation imposed by the planning permission. But he is not
bound to permit occupation to persons who satisfy the provisions of the
planning permission. If the proposed occupier is clearly inside or clearly
outside the restriction the owner will permit or refuse occupation as the case
may be. No difficulty arises in such case upon that score. If, on the other hand,
he is uncertain, the owner for his own safety can, as was emphasised in the
passage from the speech of Lord Jenkins in Fawcett, to which my lord has
referred, refuse occupation. His risk of penal sanction is limited accordingly.
There are
doubtful cases, though I suspect that many of them could be resolved by asking
the planning authority whether it agrees or not to the occupation. But in so
far as doubts persist, the owner is in fact not at risk. He can, if he feels
there is a risk and does not wish to accept that risk, simply refuse to permit
occupation. The fact that doubtful cases may, and almost certainly will, arise
cannot I think be a reason for invalidating the provision.
There are a
great many areas of the law where, upon the construction of individual words,
doubts arise. They are really questions of degree and must be dealt with upon
the facts of the individual cases as they arise.
This is not a
case where the word in dispute can, to use Lord Denning’s words in the Fawcett
case at p 678, ‘be given no meaning or no sensible or ascertainable meaning’.
In the present case there must be a wide spectrum in respect of which it is
possible to say, with assurance one way or another, that a person is or is not
employed ‘locally’ in agriculture or forestry. The history of the provision
does not suggest otherwise. It has been in wide use since the late 1960s at any
rate and, so far as we are aware, does not appear to have given rise to any
difficulty.
I observe that
in the Fawcett case Lord Denning thought that some such restriction as
that now in issue must, by implication, be imported into the form of words used
in the Fawcett case. Thus, the word ‘agriculture’ with which that case
was concerned cannot have related to employment in agriculture anywhere in the
United Kingdom. It must have been to some degree ‘local’, and Lord Denning, at
p 680 in the Fawcett case, said that it was restricted to the
‘locality’, and he said:
So construed
it seems to me that the condition fairly and reasonably relates to the permitted
development. Its effect is to ensure that the cottages will be occupied by
persons who will help to maintain the normal life and character of this part of
the green belt and not by outsiders to use as a dormitory. The cottages are for
farm-workers or for men who work at the smithy shoeing horses, at the mill
grinding the corn, or at the saw mills cutting up wood; or in modern times at
the milk depot bottling the milk or at the repair shop mending the tractors,
and so forth. They are not for people who go up and down to London every day.
It seems to me
that the restriction suggested by Lord Denning at p 680 of the report in the Fawcett
case is a reasonable and necessary one, and I see no reason why a satisfactory
effect could not be given to it. Its ambit is no different from that of the
word ‘locally’ which was used in the present case. Looking at the whole matter,
therefore, I see no reason, on grounds of convenience or of principle or of the
application of the word in individual cases, to force me to conclude that the
word ‘locally’ is void for uncertainty. Accordingly, like my lord, I would
allow this appeal.
Agreeing,
ROBERT GOFF J said: I only add a few words because we are differing from the
conclusion of the learned judge.
The question
in this case relates to the validity of an enforcement notice which alleged a
breach of planning control and non-compliance with a condition in the
development planning consent. The terms of the condition are as follows:
The
occupation of the dwelling shall be limited to a person employed or last
employed locally in agriculture as defined in section 221 (1) of the Town and
Country Planning Act 1962, or in forestry or a dependant of such a person
residing with him (but including a widow or widower of such a person).
The crucial
question is whether the use of the word ‘locally’ in that condition has the
effect that it renders the condition void for uncertainty and so renders the
enforcement notice invalid.
As the judge
held, the test which we have to apply is to be found in the speech of Lord
Denning in Fawcett Properties Ltd v Buckingham County Council
[1961] AC 636 at p 678, when he said: ‘. . . a planning condition is only void
for uncertainty if it can be given no meaning or no sensible or ascertainable
meaning, and not merely because it is ambiguous or leads to absurd results’. So
it is not enough to render the condition in the present case void for
uncertainty that the word ‘locally’ should render the condition imprecise or
even ambiguous in its meaning. Only if the condition incorporating that word
can be given no sensible or ascertainable meaning will it be held to be void.
The condition
which was considered in the House of Lords in the Fawcett Properties
case, and was held by the majority not to be void for uncertainty, was in
similar but not identical terms to the condition of the present case. That
condition was as follows (see p 637 of the report):
The
occupation of the houses shall be limited to persons whose employment or latest
employment is or was employment in agriculture as defined by section 119(1) of
the Town and Country Planning Act 1947, or in forestry or in an industry mainly
dependent upon agriculture and including also the dependants of such persons as
aforesaid.
It is to be
observed that the condition was not expressly qualified by reference to the
locality in which the relevant employment in agriculture must take place. But
the extreme examples of employment mooted by Mr Megarry QC (as he then was) in
argument, viz a retired fur breeder from South America or a retired sheep
farmer from Australia, demonstrated that it was inevitable that some limitation
as to area must be placed upon the words in the conditions; and Lord Denning
concluded (at p 680 of the report) that, having regard to the reasons given by
the planning authority in the planning permission, the relevant employment in
agriculture must be in the locality, though Lord Jenkins was inclined to
favour a limitation somewhat more rigid relating to the area of the planning
authority and possibly to the area of the green belt.
Speaking for
myself, and with all respect, I find the reasoning of Lord Denning very
persuasive and if his approach is to be regarded as correct then there can be
no material distinction between the Fawcett Properties case and the
present case.
The underlying
reason for the decision of the majority in the House of Lords in the Fawcett
Properties case was expressed by Lord Jenkins in the following passage at p
693 of the report, where he said:
. . . the
owner’s obligation is merely not to allow occupation by any person who does not
fall within the limit as regards occupation imposed by the condition. That
means that it behoves the owner to satisfy himself that any proposed occupier
does fall within the prescribed limit before he lets him into occupation. If,
on investigation, the owner finds that the proposed occupier is clearly within
the prescribed limit he can, if he chooses, let him into occupation. If, on the
other hand, the owner finds that the proposed occupier is clearly outside the
prescribed limit, he must, in order to comply with the condition, refuse the
application. Again, if it appears doubtful
limits, the owner will be well advised to refuse, and will be perfectly free to
do so. Such being the position of the owner, I see no reason why the possible
occurrence of doubtful cases, which he would be free to reject, should be held
to invalidate the condition so as to entitle him to let into possession persons
clearly outside the permitted limit.
In that
passage it is plain that the House of Lords were prepared to tolerate, in such
a condition attached to a planning permission, some cases of doubt. No doubt
there may be cases (though obviously the present case is not one of them) where
a citizen may be under some doubt as to whether a condition, such as that in
the present case, is complied with; but in the great majority of cases he is
likely to be in no such doubt, and that this is so is borne out by the fact
that conditions in this form have been recommended and, we are told, commonly
used since 1968, and yet no case seems to have troubled the courts over that
period of time.
Following the
approach of Lord Jenkins, I do not see why the possible occurrence of some
doubtful cases which an owner is free to reject should be held to invalidate
the present condition. For these reasons I agree that the appeal should be
allowed.
The appeal
was allowed. No order was made as to costs.
