Gravel company prevented from digging up Berry Mound Camp, near Birmingham, (1) by refusal of planning permission, (2) by preservation order under the Ancient Monuments Acts 1913-1953–Company entitled only to £100 compensation for loss of agricultural-use value caused by making of preservation order–Award of £57,000 for loss of right to extract gravel held to have been based on mistaken view of law
This was an
appeal by the Secretary of State for the Environment from a decision of the
Lands Tribunal dated January 24 1974 awarding the respondents, Hoveringham
Gravels Ltd, of Nottingham, £57,000 by way of compensation for diminution in
the value of land at Berry Mound Camp, Wythal, near Birmingham, caused by the
making of the Berry Mound Camp Preservation Order 1971. The decision of the
Lands Tribunal was reported at (1974) 229 EG 1351.
Mr M H Spence
(instructed by the Treasury Solicitor) appeared for the appellant, and Mr I D L
Glidewell QC and Mr D D Brown (instructed by Rollit, Farrell & Bladon, of
Hull) represented the respondents.
Giving
judgment, LORD DENNING said: About 2,000 years ago, in the Iron Age, the Celtic
tribes in Britain built great earthworks on the tops of hills. One of such was
on a mound called Berry Mound which is now in a green belt on the outskirts of
Birmingham. This fort or camp was one of the largest of its kind. It covered
nearly 12 acres. It was oval-shaped and surrounded by triple ramparts of earth.
The main rampart was 20 ft high and 40 ft in breadth at its base. Up until 200
years ago the camp was in a good state of preservation, but some of the
ramparts have since been eroded or levelled, and only a portion remains; it is
now a stretch of grassland used for pasture, fenced round and known as Berry
Mound Camp. For the last 50 years it has been listed as an ancient monument,
which means that it is of such national importance that it should be preserved.
But here is the point of the case. There are large deposits of gravel in the
earth beneath the camp. Ten years ago a gravel company bought up the camp and
the surrounding land. This company knew, when they bought it, that the camp was
listed as an ancient monument. They knew, or ought to have known, that on that account
they would probably not be allowed to quarry it for gravel. They did in fact
apply for planning permission for extracting sand and gravel. That application
was refused. They were afterwards advised that that refusal did not apply to
agricultural works, and that, without any specific permission, they could use
the camp for agricultural purposes. So they told the Secretary of State for the
Environment that they were contemplating taking down the embankments and
levelling the area for agricultural purposes. This would destroy the camp’s
existence as an ancient monument. So the Secretary of State made a preservation
order to stop them doing it. On this account the gravel company claimed
compensation. They put forward the figure of £57,000. They calculated this on
the footing that they had lost the right to extract the deposits of sand and
gravel beneath the camp. The Secretary of State suggested the figure of £100.
He did this on the footing that the company had only lost the right to use the
land for agricultural purposes. The Lands Tribunal awarded the gravel company
£57,000. The Secretary of State appeals to this court. The figures are agreed,
so that the only question is whether the compensation should be £57,000 or
£100. The point is one of the first importance. Many of our ancient monuments
and historic buildings are in private ownership. They are a national heritage.
Their present owners would not dream of letting them be destroyed or damaged
for the sake of material gain. But if they are bought up by developers, are
these new owners to demand huge sums as the price of being stopped?
To resolve the
question in this case, it must be remembered that, in order to extract the sand
and gravel, the gravel company had to get two permissions: first, permission under
the Town and Country Planning Acts, and secondly, consent under the Ancient
Monuments Acts. I deal first with the planning history. Over 20 years ago, in
1952, the then owners of the Berry Mound Camp and the surrounding land applied
to the local authority for planning permission to win sand and gravel. The
planning authorities gave permission for some adjoining land, but they refused
it for the camp itself. The then owners accepted this decision. They quarried
on the adjoining land for some years. In 1964 the then owners sold all their
land, both the camp and the adjoining quarry, to the Hoveringham Gravel
Company. The purchasers searched the register and knew that the Berry Mound
Camp itself was scheduled as an ancient monument. In 1965 they wrote to the
Minister of Works (who then had charge of ancient monuments) to know if they
could extract gravel from the camp. The Minister of Works replied that there
would be strong archaeological objections to the destruction of the camp. This
rebuff did not deter the gravel company. In 1967 and 1969 they wrote to the
county council (who were the local planning authority) and asked for planning
permission, so as to permit them to extract sand and gravel from the camp. The
county council refused permission. They gave their reason in these words:
The site is
scheduled as an ancient monument under the Ancient Monuments Acts 1913-1953.
The site is of considerable archaeological importance and as such should be
permanently preserved against development of the type proposed.
The gravel
company did not appeal to the Secretary of State from that refusal. Instead
they sought to compel the council to purchase their interest in the land under
section 129 of the 1962 Act. After an inquiry, the Secretary of State on June 1
1970 rejected that request. The gravel company then sought to take advantage of
the planning permission
which is given automatically for agricultural purposes without making
application. The gravel company relied on article 3, clauses (vi) and (ix).
They claimed that by virtue thereof they would be at liberty to do the
following agricultural works on the camp, without the need of any express
planning permission: build a farmhouse and farm buildings; take down the
embankments with a view to levelling the area for agriculture; lay agricultural
drains; make farm access roads; and excavate sand and gravel for use in making
those works. The gravel company did not however start any of those works. I
doubt whether they had any serious intention of doing them. Their ultimate
object was to extract the deposits of sand and gravel, not for farm purposes,
but for sale generally. In any case, however, the gravel company could not
start even on these agricultural works (for which they had planning permission
under the general development order) unless they first overcame any objections
under the Ancient Monuments Acts. They were required under those Acts to give
notice to the Minister of Works, and they gave this notice to his successor,
the present appellant, on July 9 1970. So I turn now to the Ancient Monuments
Acts 1913 to 1953.
In 1927 Berry
Mound Camp was listed as an ancient monument. In order to be put on the list,
it had to be reported on by the Ancient Monuments Board. This board was
composed of men of much distinction. They reported that the preservation of the
camp was ‘of national importance,’ no doubt because of its great archaeological
interest: see section 12 (1) (a) of the 1913 Act. The 1931 Act provided for
ancient monuments to be registered under the Land Charges Act, so in 1932 Berry
Mound Camp was registered as a land charge. Every owner and every purchaser was
deemed to have notice of the registration: see section 6 of the 1931 Act. The
effect of being listed was this. If the owner of the camp (or his successors)
proposed to demolish, remove or alter the camp, he had to give notice to the
Minister of Works (section 6 (2) of the 1931 Act), whereupon the Minister could
take steps to prevent it by making a preservation order. In any case, whether
an ancient monument was on the list or not, if it appeared that it was ‘in
danger of destruction or removal or damage from neglect or injudicious
treatment and that the preservation of the monument is of national importance,’
the Minister could make a preservation order. He could do it on the report of
the Ancient Monuments Board, or, in case of immediate urgency, of his own
motion: see section 10 of the Historic Buildings and Ancient Monuments Act
1953. In the present case, the gravel company (having been refused planning
permission to extract sand and gravel for commercial purposes) asserted that
they intended using the camp for agricultural purposes (by virtue of the
planning permission contained in the general development order). Seeing that it
was listed as an ancient monument, and that these agricultural works would
destroy it, they had to give notice to the Secretary of State. On July 9 1970
they gave notice of their intention to execute the agricultural works and said
that these ‘will necessitate demolishing or removing the whole of the said
ancient monument.’ The Secretary of
State at once took steps to stop the gravel company from carrying out its declared
intention. He considered it to be a matter of immediate urgency, so on October
5 1970 he made an interim preservation order under section 10 of the 1953 Act.
He followed this on December 30 1971 with a preservation order. The effect of
these orders was that the camp was not to be demolished, and no alterations
made or work done in connection therewith except with the consent of the
Secretary of State: see section 12 of the 1953 Act.
Those
preservation orders stopped the gravel company from carrying out their
intentions. They claimed compensation. The statutory right to compensation is
given by section 12 (2) of the 1953 Act, which says that:
Where a
person has an interest in the whole or a part of a monument and . . . (a) his
interest is injuriously affected by the service of an interim preservation
notice or by the coming into operation of a preservation order . . . he shall
be entitled to receive such compensation as may be appropriate in the
circumstances.
This provision
is repeated in similar terms in the preservation order, which says in paragraph
3 (2) (a):
A person
having such an interest as aforesaid shall be entitled to receive compensation
equal to the amount by which the value of that interest is diminished by the
serving of the interim preservation notice and by the coming into operation of
this order.
In applying
these provisions, the Lands Tribunal asked itself this question: ‘Whether but
for the preservation order, planning permission would have been granted for the
extraction of sand and gravel?’ It
regarded that question as ‘mainly one of fact.’
In my opinion, however, that question is somewhat misleading. It
distracts the mind from the true question, which is one of causation.
Compensation is to be given for the diminution in value effected ‘by the
serving’ of the preservation orders. That means the diminution in value caused
by the serving of the preservation orders. The test applied by the Lands
Tribunal was that which legal philosophers call the ‘but for’ test of
causation. It is misleading, because it is equivalent to the causa sine qua
non, ie the cause without which (but for which) the event would not have
happened. In law the correct approach is causa proxima non remota spectatur.
The search is for the significant cause or causes as against the insignificant.
I would prefer, therefore, to approach the question in this way. It is plain
that the gravel company will not be allowed to extract sand and gravel for
commercial purposes, and that their interest in the camp is on that account
diminished in value. Accepting that fact, the question is, what is the cause
of that diminution in value? If it is caused
by the preservation orders, the company are entitled to £57,000 compensation,
but otherwise not.
To illustrate
that question, I will contrast it with use of the land for agricultural
purposes. So far as agricultural works are concerned, the gravel company have,
and always have had, planning permission to use the land for that purpose by
virtue of the general development order. The only thing that has stopped them
has been the preservation orders. Those orders are plainly the cause of their
not being allowed to carry out these agricultural works. So they are entitled
to compensation for the diminution in value on that account. That sum is £100.
But now I turn back to the extraction of sand and gravel for commercial
purposes. What was the reason why they could not use the camp for that
purpose? To my mind, it was the absence
of planning permission. Even if there had been no preservation orders, they
would never have got planning permission for that purpose. The proof of the
pudding is in the eating. They actually applied for planning permission, long
before any preservation orders were made, and were refused. The cause of this
refusal can be traced in orderly sequence. The fundamental cause lies in the
very nature of Berry Mound Camp itself. It was known to the planning
authorities to be an Iron Age fort of great archaeological interest, so much so
that it was of national importance that it should be preserved and not
destroyed. That was a perfectly legitimate reason for refusing planning
permission. It was just as legitimate to refuse for archaeological reasons as
for amenity reasons. All the succeeding events flowed from it in orderly
sequence. It was for that cause that the camp was listed as an ancient
monument. It was due to that listing that planning permission was refused. It
was due to that refusal that the gravel company were unable to extract sand and
gravel for commercial purposes. Note that in that sequence of cause and effect
the preservation orders play no part. They were not the cause
entitled to the £57,000.
That is enough
to decide the case. But I think my opinion is supported by the decision of the
House of Lords in Westminster Bank v Minister of Housing and Local
Government [1971] AC 508, which shows that when there are two alternative
courses open to a public authority, one of which gives rise to compensation and
the other does not, the authority is entitled to adopt the one which does not
give rise to compensation. The Lands Tribunal, as I have said, regarded the
question as mainly one of fact. But that is because it was not presented, as it
should have been, as a question of causation. And causation, as I have always
understood it, is a question of law. On a question of causation, it is for the
tribunal of fact to find the primary facts, by which I mean the sequence of
actual events which led up to the occurrence. But once those are found, then
the question whether one or more of the preceding events is a ’cause’ or not of
the occurrence is a question of law. It was so treated by the House of Lords in
Baker v Willoughby [1970] AC 467. It was so treated by me in the
pensions cases, in which there was an appeal only on questions of law: see Minister
of Pensions v Chennell [1947] KB 250. The reason is because the
problem whether something was a cause or not requires, for its correct
solution, to be determined by a trained lawyer: see British Launderers’
Research Association v Hendon Borough Rating Authority [1949] 1 KB
462 at 472. It is too difficult for a layman. His knowledge of causation may be
of the variety: ‘For want of a nail, the shoe was lost; for want of a shoe, the
horse was lost; for want of a horse, the rider was lost,’ and so on. It is
difficult enough for a lawyer to decide questions of causation. As Salmon LJ
said in Quinn v Burch Bros (Builders) Ltd [1966] 2
QB 370 at 395: ‘There is always the temptation to fall into the fallacy post
hoc ergo propter hoc; and that is no less a fallacy even if what happens
afterwards could have been foreseen before it occurred.’ But difficult as it is, it is for the trained
lawyer to determine causation. Accordingly the question is one of law on which
an appeal lies to this court from the Lands Tribunal. In my opinion, therefore,
the gravel company are entitled to compensation in the sum of £100 for being
unable to carry out their agricultural works, but not to £57,000 for being
unable to extract sand and gravel for commercial purposes. That inability was
due to the very nature of the site and not to the preservation orders. I would
accordingly allow the appeal.
ORR LJ: On the
first issue in this appeal, which concerns the validity of the Lands Tribunal’s
conclusion that but for the preservation order, planning permission for sand
and gravel extraction would certainly have been granted, Mr Glidewell accepted
that if there had been no Ancient Monuments Acts the fact that land which is
the subject of a planning application contains an ancient monument would fall
within the very wide words of section 29 of the Town and Country Planning Act
1971, which requires the local planning authority, when dealing with a planning
application, to have regard to the provisions of the development plan ‘and to
any other material consideration.’ He
claims, however, that the Ancient Monuments Acts constitute a self-contained
code and that two consequences follow, the first, that it would be an abuse of
power for a planning authority by means of a refusal of planning permission to
deprive the applicant of compensation which would otherwise be due to him in
consequence of a preservation order being made under the Ancient Monuments
Acts, and the second, that it is not open to a planning authority to refuse
permission for development of a site on the ground that it embraces an ancient
monument unless a preservation order is going to be made under those Acts.
I am unable to
accept either of these arguments. The answer to the first is in my judgment to
be found in the speeches of Lord Reid and Lord Dilhorne in Westminster Bank
v Minister of Housing and Local Government [1971] AC 508 and in section
289 of the Town and Country Planning Act 1971, re-enacting section 200 of the
1962 Act, which appears to me to be as clearly applicable to the present facts
as section 200 was held to be in the Westminster Bank case; it being
expressly provided that Part II of the Ancient Monuments Act 1953 is to be
construed as one with the earlier Ancient Monuments Acts. I would add, since we
were referred to it in argument, that in my judgment the case of Hall &
Co v Shoreham-by-Sea Urban District Council [1964] 1 All ER 1, where
a local authority made it a condition of granting planning permission that the
applicant should pay for the laying of a new road, and it was held by this
court that the imposition of such a condition was ultra vires and void,
has no application to the present facts, nor have the observations of Lord
Warrington in Colonial Sugar Refining Co Ltd v Melbourne Harbour
Trust Commissioners [1927] AC 343 at 359, or of Lord Wilberforce in Minister
of Housing and Local Government v Hartnell [1965] AC 1134 at 1172,
as to existing rights, since, unless the Ancient Monuments Acts oust the application
of planning law, the respondents never had (save as to the limited activities
permitted by the general development order) any subsisting right to take sand
and gravel, nor, in my judgment, any reasonable expectation of being permitted
to do so.
In support of
his second argument, that the local authority could not properly refuse
planning permission unless the Minister was going to make a preservation order,
Mr Glidewell contended that unless an ancient monument is of such importance as
to justify a preservation order, the local planning authority are not entitled
to take notice of it. It seems to me, however, that this argument, if well
founded, would lead to very surprising results, and that it is in any event
negatived by section 289 of the Town and Country Planning Act 1971, to which I
have already referred. It is clear from the wording of section 6 of the Ancient
Monuments Act 1913 that a preservation order under that Act could only be made
in the case of an ancient monument the preservation of which was considered to
be of national importance, and in my judgment, on the true construction of
section 10 of the 1953 Act the same applies to an interim order, and therefore
to a preservation order (which is conditional on there having been an interim
order) under that Act; and it is equally clear from the definitions contained
in section 22 of the 1913 Act and section 15 of the 1931 Act that for the
purposes of those Acts the term ‘ancient monument’ includes many monuments the
preservation of which cannot be said to be of national importance. In my view
it would be very surprising if such monuments, by reason of their inclusion in
the Ancient Monuments Acts but without a remedy by way of preservation order,
were to be withdrawn from any protection under planning law, and in the absence
of any clear provision to that effect either in the Ancient Monuments Acts or
in the planning Acts, I should have been unwilling to accept that such a
consequence follows. In my judgment, however, the clear effect of section 289
of the Town and Country Planning Act 1971 is that ancient monuments, whether of
a national or a local importance, are not, by their inclusion in the Ancient
Monuments Acts, to be treated as withdrawn from the ambit of the planning law.
In the present case we are concerned with an ancient monument the preservation
of which must be taken to be of national importance not only because of the
preservation order but also because of the recommendation made by the Ancient
Monuments Board in 1926.
The remaining
question on the first issue in the appeal is as to the validity of the Lands
Tribunal’s conclusion that
granted’ for the winning of sand and gravel, and therefore it was the
preservation order which diminished the value of the land by the value of the
right to work those minerals. Having stated this conclusion, and clearly in my
judgment as part, at least, of the reasoning which had led to it, the tribunal
goes on to say that ‘ex hypothesi if a site is not of sufficient
importance to warrant a preservation order, then the grounds of refusal of the
1967 application would have been misconceived,’ and similarly as to the
subsequent applications; that ‘had such planning refusal gone to appeal the
Secretary of State could hardly have dismissed the appeal on ancient monument
grounds unless he had made or was prepared to make a preservation order’; and
that ‘It seems necessarily to follow that, but for the making of the
preservation order, planning permission would have been granted either by the
planning authority or by the Secretary of State on appeal for the winning and
working of the sand and gravel.’ It has
been argued by Mr Glidewell that the tribunal’s conclusion on this matter was
essentially one of fact based upon the documents, including an agreed statement
of facts, and on oral evidence given by the deputy planning officer, Mr Pearse,
of which we have been shown by consent a note taken by counsel; and further,
that the conclusion should not be considered as in any way depending on the
reasoning in the passage above quoted, which followed it. With great respect to
the tribunal, I cannot accept either of these arguments. I have no doubt that
the tribunal carefully considered all the documents and also the oral evidence
of Mr Pearse, but the crucial conclusion is not prefaced by any specific
findings of fact based on the documents or the oral evidence, and is explained
only by the process of reasoning which follows it and which contains the
passages already quoted. In my judgment, these passages clearly reveal that in
the reasoning which led to its conclusion the tribunal materially misdirected
itself in point of law.
The question
which then arises is whether the case should be remitted to the tribunal for a
rehearing on a correct basis of law. I have borne in mind that the tribunal had
the advantage which we have not had, of seeing and hearing Mr Pearse, and if
there had been any reason to think that his evidence, coupled with the
documents, might well have led the tribunal, properly directing itself as to
the law, to the same conclusion, I would have considered a remission. But it is
clear, in my judgment, from counsel’s note, that Mr Pearse’s evidence was at
the best inconclusive, and the documents, which this court is in as good a
position to evaluate as the tribunal, favour the appellants in so far as they
reveal previous planning refusals. My conclusion is that the tribunal’s
decision was based in essence on the erroneous conclusions of law, and only to
a minimal (if any) extent on the oral evidence and documents, and on this issue
I would reverse the tribunal’s decision. I would add that on this part of the
appeal I agree entirely with the conclusion of the Master of the Rolls that the
question for the Lands Tribunal was not whether planning permission would have
been granted if the preservation order had been refused, but whether it would
have been granted if the preservation order had not been made. If it had not
been made there remained the recommendation made by the Ancient Monuments Board
in 1926, and it would in my view have been surprising if in the face of that
recommendation the planning authority had thought fit to grant planning
permission involving destruction of the monument.
The second
issue in the appeal concerns the rights conferred on the respondents by the
general development order to take sand and gravel for the purposes of
agriculture. The tribunal’s conclusion was that if these rights had been
exercised they would have destroyed the ancient monument, and since there were
no grounds for any ‘amenity’ objection, there would then have been no reason
for refusing permission for the extraction of all the sand and gravel on the
site, with the result that the loss of the general development rights
necessarily carried with it the loss of the right to win the remaining sand and
gravel. In my judgment, again with great respect to the tribunal, this
conclusion ignores the realities of the situation, which were that the respondents
were bound to give notice of any intended exercise of their general development
rights and that upon such notice the work would be prohibited either, as in
fact it was, by a preservation order or by an article 4 direction, with the
result that there never was any possibility of the monument being destroyed,
and therefore there never was any prospect of the respondents obtaining the
planning permission which it is alleged would have followed that event. It
follows, in my judgment, that this appeal also succeeds on the second issue,
and I would only add that the respondents may labour under a sense of
disappointment at the outcome of the appeal, but hardly of injustice, since
they acquired the site in 1964 with full knowledge of the risk involved. For
these reasons I, too, would allow this appeal.
SCARMAN LJ:
Berry Mound Camp is an Iron Age fort situate at Shirley, Solihull, not far from
the fringe of the built-up area of Birmingham. It has been scheduled as an
ancient monument since 1927. On four occasions, in 1952, 1967/68, and twice in
1969, planning permission has been refused for development which, if allowed,
would have destroyed the whole or part of the camp. Hoveringham Gravels Ltd,
the claimants in the Lands Tribunal and respondents in this court, acquired the
site together with other gravel-bearing land in 1964. Their business is the
commercial winning and working of sand and gravel. When they acquired the land,
it was in agricultural use, and the camp site so remains. But they have worked
the other land for gravel, and in recent years have sought to extend their
workings to the camp site. On each occasion (once in 1967 and twice in 1969)
that they sought planning permission they were refused upon the ground that the
site was scheduled as an ancient monument under the Ancient Monuments Acts 1913
to 1953, and ‘is of considerable archaeological importance and, as such, should
be permanently preserved against development of the type proposed.’ Faced with these refusals, the claimants
served a notice under section 6 (2) of the Ancient Monuments Act 1931 of their
intention to extract sand and gravel from the same site for the purposes of the
agricultural use of their land, a development for which they had planning
permission under the general development order 1963. The Secretary of State
then acted under the ancient monuments legislation to protect the camp site,
first by serving an interim preservation notice and later by making a
preservation order. Under the Ancient Monuments Acts 1913 to 1953 the making of
the preservation order gave rise to a right to compensation equal to the amount
by which the value of the land had been diminished by the coming into operation
of the order: see section 12 of the Act of 1953 and paragraph 3 of the Berry
Mound Camp Preservation Order 1971. In effect, this means that compensation is
assessed by reference to the use that, but for the order, the land could have
been lawfully put to or for which planning permission could reasonably have
been expected to be granted. The claimants’ case is that, but for the
preservation order, it was reasonable to have expected that planning permission
would have been granted for the commercial exploitation of the sand and gravel
in the camp site: and they claimed £57,000. The Secretary of State’s case is
that compensation should be limited to a sum of £100 upon the basis that all
that the claimants could have lawfully done, but for the preservation order,
was to work the minerals for purely agricultural purposes: his case is that
there was no planning permission to work the minerals commercially, and no
reasonable prospect of any such permission being obtained. The Lands Tribunal
decided the issue in favour of
On appeal, Mr
Spence, for the Secretary of State, has submitted (i) that the President of the
Lands Tribunal, whose decision it was, drew the wrong inference from the
primary facts; (ii) that he did so because he erred in law in thinking that in
the absence of a preservation order under the Ancient Monuments Acts planning
permission in this case could not properly have been refused; and (iii) that
there was in fact no planning permission for the commercial exploitation of the
minerals under the camp, and none could reasonably have been expected to be
granted. Mr Glidewell, for the claimants, has supported the Lands Tribunal
decision on the grounds (i) that it was a decision upon a question of fact, and
as such, not appealable; (ii) that it would be improper, an abuse of power, to
use the general planning powers conferred on local planning authorities and the
Secretary of State by the town and country planning legislation so as to limit
the amount of compensation payable to a landowner upon the making of a preservation
order under the Ancient Monuments Acts; and (iii) that accordingly, it was not
proper for the local planning authority or the Secretary of State to refuse
planning permission in the absence of a preservation order, and therefore that
it must have been the preservation order which effectually led to the loss of
the claimants’ right to exploit the minerals under the camp. Mr Glidewell
further submitted that in any event the loss of his clients’ agricultural
rights, which was admitted as entitling them to compensation, carried with it
the loss of their commercial rights, which should, therefore, also have been
made the subject of compensation.
I deal first
with Mr Glidewell’s submission to the effect that the Lands Tribunal’s decision
was one of fact. Undoubtedly the question for the tribunal was, as the
President himself put it, ‘mainly a question of fact,’ albeit hypothetical. The
tribunal was required to infer what could reasonably have been expected to
occur in a situation which never arose. In the President’s words, he had to
decide ‘whether, but for the preservation order, planning permission would have
been granted for the extraction of sand and gravel.’ In a Lands Tribunal case, the Court of Appeal
is bound by the tribunal’s findings of fact: it can intervene only if the
tribunal has erred in law. If the primary facts as found cannot support an
inference drawn by the tribunal, the inference is itself an error of law, and
it is the court’s duty to reverse the decision if it depends upon the inference.
The same situation arises if the tribunal’s decision is one which the tribunal,
applying its mind to proper considerations and directing itself properly as to
the law, could not reasonably have reached. This is a principle of general
application where an appellate court’s power is limited to a review of points
of law: see for example Bracegirdle v Oxley [1947] KB 349 at 353.
The present case, Mr Spence submits, is in the second category. It was conceded
at the tribunal hearing that there was some evidence which could support the
inference that but for the preservation order planning permission would have
been granted; moreover, in a Lands Tribunal case this court will, as a general
rule, respect an inference drawn, or a decision made, by the tribunal within
the field of its specialised experience. Nevertheless, if, as is here
submitted, the decision is vitiated by a misapprehension on the part of the
tribunal of the underlying law, the Court of Appeal can and must intervene. It
is therefore necessary to examine whether the tribunal did misapprehend the
law. In support of his submissions Mr Glidewell argued that the Ancient
Monuments Acts were a complete and appropriate code for the protection of
ancient monuments: it was therefore inappropriate–indeed an improper use of
statutory powers–to use the general planning controls of the Town and Country
Planning Acts to achieve an end for which Parliament had specifically
legislated. As I read the tribunal’s decision, the learned President accepted
this line of argument, or at the very least, allowed it to influence greatly
his approach to the question of fact. In the course of his decision he said
that ‘if a site is not of sufficient importance to warrant a preservation
order, then the grounds of refusal of the 1967 application would have been
misconceived, and a similar conclusion follows a consideration of the
subsequent applications.’ In other
words, he was saying that the procedure under the ancient monuments legislation
is the complete and exclusively appropriate code for the protection of ancient
monuments; that it would be wrong to use planning powers to preserve that which
is not protected under the code; and that therefore planning permission was to
be expected in the absence of a preservation order.
I reject this
view of the relationship of the ancient monuments legislation to the Town and
Country Planning Acts. The first Act–the Ancient Monuments Protection Act
1882–provided for the preparation of a schedule of ancient monuments. The Act
was repealed when the Ancient Monuments Consolidation and Amendment Act 1913
was passed. This Act, though substantially amended, remains part of the current
code: it took over and maintained the 1882 schedule, introduced the listing of
monuments considered to be of national importance or otherwise worthy of
inclusion, and made it a criminal offence to alter or demolish a listed
monument without giving notice of intention to do so. It also introduced the
preservation order, made by the Commissioners of Works, but requiring
confirmation by Parliament. The next Act in the code is the Ancient Monuments
Act 1931, which extended the commissioners’ powers and contained in section 15
(1) the current definitions of ‘monument’ and ‘ancient monument.’ Thus when the Town and Country Planning Act
1947 introduced general planning control of land use, there was already in
existence a statutory code for the protection of ancient monuments. But it was
made plain by Parliament that specific legislation such as the Ancient
Monuments Acts was in no way to derogate from the general powers conferred by
the 1947 Act upon local planning authorities and the Minister. Section 118 (1)
of the 1947 Act provided that:
For the
avoidance of doubt it is hereby declared that the provisions of this Act, and any
restrictions or powers thereby imposed or conferred in relation to land, apply
and may be exercised in relation to any land notwithstanding that provision is
made by any enactment in force at the passing of this Act . . . for authorising
or regulating any development of the land.
Part II of the
Historic Buildings and Ancient Monuments Act 1953 amended the procedure for
protecting ancient monuments, leaving it to the Minister, not Parliament, to
make the final order. It also introduced provision for compensation. The
claimants in this case make their claim under this Act. Part II of the Act is
to be ‘construed as one with the Ancient Monuments Acts 1913 and 1931’ (section
22 (2)). In 1962 the Town and Country Planning Act of that year, a
consolidating enactment, re-enacted section 118 as section 200. The Town and
Country Planning Act of 1971, also a consolidating Act, retains the provision
in section 289. The introduction of these provisions makes only one conclusion
possible: that the ancient monuments legislation does not abridge the powers of
planning control under the Town and Country Planning Act.
Further,
section 29 of the Act of 1971 (re-enacting the previous law) declares the
matters that are to be considered by a planning authority dealing with an application
for planning permission. It shall have regard to ‘the provisions of the
development plan . . . and to any other material consideration.’ Its powers are as wide-ranging as the
considerations to which it shall have regard. They are (a) subject only to
specific provisions of the Act, to grant permission unconditionally or subject
to such conditions as they think fit; or (b) to refuse permission. When an
application to develop land involves the destruction of the whole or part of an
ancient
not to grant permission. The mere fact that the monument can be protected under
the Ancient Monuments Acts cannot mean that in the absence of such protection
permission to develop must be given. The factor remains a material
consideration to which the planning authority will give such weight as it
thinks fit in the context of the planning of land use in the area for which it
is responsible. And there is nothing, as I have said, in the Ancient Monuments
Acts which can be read as abridging or restricting planning powers or requiring
them to be exercised in one way or another. Further and more specifically,
protection by notice and order under the Ancient Monuments Act 1953 is afforded
only to those ancient monuments the preservation of which is of national
importance: section 10. A local planning authority might well consider an
ancient monument to be of sufficient local importance to justify its protection
by the refusal of planning permission for a development which would destroy it,
and the Secretary of State could reasonably uphold the decision of the local
planning authority, even though the monument did not qualify for protection as
a monument of national importance under the Act of 1953. It does not
necessarily follow, therefore, as the President of the Lands Tribunal appears
to have thought that it did, that the Secretary of State could ‘hardly’ have
dismissed a planning appeal on ancient monument grounds unless he was prepared
to make a preservation order. He might well have done so, because of the
importance of local considerations.
Mr Glidewell,
however, further contends that, whatever be the correct view as to the general
law, it would have been an abuse of power in this particular case to refuse
planning permission. The monument is admittedly of national importance: its
protection ought, therefore, to be a matter arising under the Ancient Monuments
Acts and subject to the compensation provided for by those Acts. To protect it
by the device of refusing planning permission would be to select a course of
action which would deprive the landowner of his full compensation. Basically,
this contention fails because there is nothing in the ancient monuments
legislation which restricts the wide powers conferred by the Town and Country
Planning Act upon planning authorities. But it would be odd if a planning
authority, convinced that the proper use of the land was to preserve the
ancient monument, should be obliged to grant planning permission for a
development that would destroy it merely because there was open to the Minister
a way of protecting it which attracted a right to compensation, ie, by action
under the Ancient Monuments Acts which in fact had not been taken. The law is
not driven into this corner: indeed, the principle of the matter has been
authoritatively declared in Westminster Bank v Minister of Housing
and Local Government [1971] AC 508, where Lord Reid said at 529E:
But it is
quite clear that when planning permission is refused the general rule is that
the unsuccessful applicant does not receive any compensation. There are certain
exceptions, but they have no special connection with street-widening. If
planning permission is refused on the ground that the proposed development conflicts
with a scheme for street-widening, the unsuccessful applicant is in exactly the
same position as other applicants whose applications are refused on other
grounds. None of them gets any compensation. So absence of any right to
compensation is no ground for arguing that it is not within the power of
planning authorities to refuse planning permission for this reason.
Lord Dilhorne
expressed the same opinion at page 535 B-C. The fallacy underlying Mr
Glidewell’s argument is the assumption, unsupported by anything in the Ancient
Monuments Acts and contrary to the general policy of the planning law, that a
landowner is entitled to compensation for loss of development value
irrespective of what would or would not get planning permission: for that is
what a claim for £57,000 in this case is. Compensation for the loss of
development outside the range of planning permission is the exception, not the
rule, under the planning code. Normally, it is not available unless the
landowner can establish a claim under Part VII of the 1971 Act, or a right to a
purchase order, which in this case he tried but failed to get.
Once it is
recognised that the ancient monuments legislation in no way restricts the
exercise of planning powers under the town and country planning code, evidence
that but for the preservation order the local planning authority would have
granted permission to a development which would have destroyed the camp is
scarce indeed. Planning permission had been refused in 1952 (before the
claimants acquired the site), in 1968 and 1969. On each occasion the ground was
that the camp was a scheduled monument and of considerable archaeological
importance: ‘as such, [it] should be permanently preserved against development
of the type proposed.’ It by no means
follows that the opinion of the planning authority (or the Secretary of State
on appeal) would depend upon whether or not an order could, or would, be made
under the Ancient Monuments Acts. The planning refusals were in fact made in
the absence of a preservation order and at a time when it was not known what
the Secretary of State would do under the Ancient Monuments Acts. Had the
authority really thought that, subject only to the ancient monuments
legislation, the site should have been worked for minerals, they could have
granted permission, leaving to the landowner the duty of serving notice upon
the Secretary of State, so giving the Secretary of State his opportunity to act
under that legislation. But they did not; they thought that in the
circumstances planning permission should be refused. There is therefore nothing
in the history of the site to suggest that in the absence of a preservation
order planning permission would have been granted.
Once one
rejects the proposition that planning powers over an ancient monument site are
dependent upon action taken under the Ancient Monuments Acts, there is no basis
for the inference drawn by the Lands Tribunal. In my judgment, the President,
in deciding that but for the preservation order planning permission would have
been granted, either acted on or was greatly influenced by his view that it
would have been improper in such circumstances to have refused it. But this is
an erroneous view of the law, and as such vitiates his decision. Had he
directed himself properly as to the effect of the underlying statute law, he
must have appreciated that planning permission, which had been for years
consistently refused, was never likely to be granted. The planning authority
had never shown any disposition to grant permission, and were always prepared
to refuse, as in the instant case they did refuse, permission although no
preservation order had been made. The evidence, when viewed without the
distortions of an erroneous appreciation of the law, points only one way:
planning permission could not reasonably have been expected. Mr Glidewell’s
further submission, that the loss of agricultural rights carried with it the
loss of the right to commercial exploitation, is in my judgment, unsound, not
only for the reasons given by Orr LJ, but also because it rests upon the false
assumption that compensation is generally available even when planning
permission is not in existence and is not to be expected. I would therefore
allow the appeal.
The appeal
was allowed with costs, the appellants being also awarded their costs below
from the date of a sealed offer of £100. Leave to appeal to the House of Lords
was refused.