Town and Country Planning Act 1971–Outline permission for housing development in the Malvern Hills followed by approval of reserved matters–By virtue of section 42(2)(b) of the Act development had to be begun not later than the expiration of two years from final approval of reserved matters–Under section 43(2) development was to be taken to be begun on the earliest date on which any ‘specified operation’ began to be carried out–Relevant operation in present case was ‘any operation in the course of laying out or constructing a road or part of a road’ (section 43(2)(d))–Question as to whether ‘pegging’ of lines of part of new estate road, which was carried out before the expiry of the time-limit, was ‘an operation in the course of laying out’ the road–Enforcement notice served by local authority on ground that development had not been begun in time–Sir Douglas Frank QC, sitting as a deputy judge of the Queen’s Bench Division, held that the development had been begun in time–Court of Appeal divided–Lord Denning MR, in the minority, considered that the driving in of pegs was only a preliminary act, not a specified ‘operation’–Majority of court (Eveleigh and Watkins LJJ) held that the pegging constituted a ‘laying out’ on the ground and was therefore an ‘operation’ within section 43(2)(d)–Development consequently held by majority to have been begun in time–Appeal from decision of Sir Douglas Frank QC dismissed, but leave given to appeal to House of Lords
This was an
appeal from a decision of Sir Douglas Frank QC dismissing an appeal by Malvern
Hills District Council against a decision of the Secretary of State for the
Environment who had accepted the inspector’s conclusion that the pegging out of
part of the road constituted a ‘specific operation’ which satisfied the
time-limit for the beginning of development under section 43(2)(d) of the 1971
Act.
J Sullivan
(instructed by Sharpe Pritchard & Co, agents for Paul Graham, Malvern Hills
District Council) appeared on behalf of the appellants; Simon Brown (instructed
by the Treasury Solicitor) represented the first respondent, the Secretary of
State; A T Smith QC (instructed by Jacobs Bird & Co, of Birmingham)
represented the second respondents, the developers, Robert Barnes & Co Ltd.
Giving
judgment, LORD DENNING MR said: The Malvern Hills look down on a very English
landscape to the west. In the valley there are charming old villages, dotted
here and there among the woods. One of them is Cradley, which gives its name to
the Cradley Brook running through it. It has quite enough houses for everyone
there, but developers wish to build more. They plan to build a new housing
estate of 25 houses. They are confident that they would be bought by purchasers
who would commute to work elsewhere in the cities and towns of the Midlands: or
else by purchasers who would come to the village to retire. The parish council
and all the people of the village are vigorously opposed to it. They fear that
their village life will be replaced by a commuter society. An inspector at a
local inquiry has found that the development would be socially unacceptable.
Yet the minister has felt bound in law to let the developers go ahead and to
build this housing estate. It all depends on the construction of a few words in
the Town and Country Planning Act 1971.
The story
starts on February 22 1974. The Hereford County Council granted outline
planning permission for residential development. It was an area of 4 1/2 acres
in the old part of the village close to the church and school. The outline
permission was granted subject to conditions, and many matters were reserved
for further consideration. These reserved matters were not approved for three
years. Before these were approved a petition with 267 signatures opposed the
development. But it was no good. On March 28 1977 the Malvern Hills District
Council (who were now the planning authority) very reluctantly granted approval
of the reserved matters.
The
statutory provision
That date,
March 28 1977, is crucial because section 42(2)(b) of the Town and Country
Planning Act 1971 provides that:
. . . the
development to which the permission relates must be begun not later than
whichever is the later of the following dates —
(i) the expiration of five years from the date of
the grant of outline permission;
that date is
here February 22 1974
or
(ii) the expiration of two years from the final
approval of the reserved matters or, in the case of approval on different
dates, the final approval of the last such matter to be approved
that date is
here March 28 1977.
So it was
necessary for the development of these 4 1/2 acres to be begun not later than
March 28 1979. If the enactment stopped there it would have been very difficult
to say when the ‘development’ was ‘begun’. But Parliament endeavoured to remove
this difficulty by enacting section 43. It says:
43(1) For the purposes of sections 41 and 42 of
this Act, development shall be taken to be begun on the earliest date on which
any specified operation comprised in the development begins to be carried out.
(2) In subsection (1) of this section ‘specified
operation’ means any of the following, that is to say —
(a) any work of construction in the course of the
erection of a building;
(b) the digging of a trench which is to contain
the foundations, or part of the foundations, of a building;
(c) the laying of any underground main or pipe to
the foundations, or part of the foundations, of a building or to any such
trench as is mentioned in the last preceding paragraph;
(d) any operation in the course of laying out or
constructing a road or part of a road;
(e) any change in the use of any land, where that
change constitutes material development.
What was
done before March 28 1979
In view of
those statutory provisions, it is important to know exactly what was done
before March 28 1979. Nothing was done by the original applicants. They sold
the site of 4 1/2 acres to a new firm of developers and gave them vacant
possession on December 21 1978 — when there was only three months to go. The
approved detailed plan showed 25 new houses to be built and an estate road to
get to them.
During these
three months the new developers made preparations for drainage work. They
brought a lot of pipes and manhole rings on to the site. They deposited them in
the centre of the site. A JCB excavator was sent to unload them and to excavate
a drainage trench. But the JCB machine became bogged down and was removed from
the site. No excavation was done there by this machine.
Also during
those three months the new developers made preparations for the estate road. In
January 1979 they put in pegs to show the centre line of the proposed new estate
road, and also others to show the line of the pavements on each side. These
pegs did not get very far. They only want the first 250 ft of the proposed
estate road at intervals of about 50 ft. They stuck the pegs only about 6 to 10
in out
more than put in pegs. They were held up by the weather.
No details of
the layout of the road were submitted to or approved by the highway authority.
And condition 16 of the application said in terms that:
No work on
the site of the development shall be commenced until these details have been
approved by the highway authority and an agreement entered into.
I presume that
the highway authority might have required the site of the proposed road to be
altered and the pegs removed before work was commenced. The position of the
pegs was only tentative or provisional.
Differences
arise
Early in April
1979 differences arose. The new developers said that they had begun the
development by March 28 1979. The Malvern Council said they had not. At first
it was thought that the differences could be resolved by an application under
section 53 of the Act. But after about a year that was found to be
inapplicable. So on May 9 1980 the council served an enforcement notice on the
developers requiring them ‘to cease construction of the road and all building,
engineering or other operations’. On May 29 1980 the developers appealed to the
minister against this enforcement notice. Thereafter, on June 13 1980, the
council served a ‘stop notice’ on the developers under section 90 of the Act.
This effectively stopped the developers from doing any more work on the land.
But, if the enforcement order were afterwards quashed, the council would be
liable to pay compensation for any loss suffered by the developers owing to the
stop notice: see section 177 of the Act.
When was
development begun?
That history
shows that everything depends on the date when the development of the site was
‘begun’ by the developers. If it was begun before March 28 1979 the
enforcement notice must be quashed. The developers will be able to go on with
the development of the housing estate. They will also be entitled to
compensation for all loss suffered by them on account of the bad enforcement
notice. They put it at £500,000 payable by the Malvern Council. But, if the
development was begun after March 28 1979 the developers will not be
able to develop the housing estate, and will receive no compensation.
So, much
depends on whether the development was begun by March 29 1979 or not. I have
set out what was done. Now I turn to the law.
Section 43
In construing
subparagraph 2(d), it is very right and proper to look at the subparagraphs
with which it is associated. The Latin maxim is noscitur a sociis. Put
into English it means that, in order to construe a word or phrase, you can find
out by looking at the companions with which it is associated. Looking at
subparagraphs 2(a), (b), (c) and (e), it is significant that they all refer to
the actual work that is being done. They exclude any acts which are only
preparatory to it. Thus, in subparagraph 2(a) — about erecting a building — the
development does not begin when you bring the bricks or the sand and cement on
to the site, or put in pegs. It is only begun when you start to lay the
concrete or the bricks. In 2(b) — digging the foundations — the development is
not begun when you bring the JCB on to the site, or get the men there with
their picks and shovels, or put in pegs. It is only begun when you actually start
to dig the trench. And in 2(c) — laying the pipes — the development is not
begun when you bring the pipes on to the site. It is only begun when you start
to lay a pipe in the trench. And in 2(e) — change in the use — when you have
permission to use your front garden for selling goods by retail, the
development does not begin when you buy the stall or the goods or bring them on
to your land. It only begins when you actually start selling them. So also
subparagraph 2(d) should be construed not to apply to preparatory acts, but
only to the actual operation itself.
Note that in
the last sentence I use quite naturally the words ‘the actual operation
itself’. That brings me straight to the word ‘operation’ itself in subparagraph
2(d). To my mind the word ‘operation’ in the singular is used in the same sense
as in the many places in the statute where the word ‘operations’ is used in the
plural. That must be so as a matter of statutory interpretation: for, as we all
know, in a statute, ‘words in the singular shall include the plural, and words
in the plural shall include the singular’. The plural ‘operations’ is used in
many places in this statute, notably in section 22(1) where permission is
required for ‘the carrying out of building, engineering, mining or other operations
in, on, over or under land’: and in section 290 when ‘engineering operations’
includes the formation or laying out of means of access to highways. Also in
section 45(4)(a). We considered its meaning in those sections in Parkes
v Secretary of State for the Environment [1978] 1 WLR 1308, when I said
that the word ‘operations’ comprises activities which result in some physical
alteration to the land, which has some degree of permanence to the land itself.
For instance, I do not think the putting in of pegs — without permission —
would be a breach of planning control. It would require something more
permanent. I think that the same meaning should be applied to section 43(2)(d)
also: especially as it fits in so well with subparagrahs 2(a), (b), (c) and (e).
Applied to
this case
Applying this
interpretation to the present case, it is plain — and it is accepted — that the
bringing of the pipes and manhole rings on to the site was not a ‘specified
operation’ within subparagraph 2(c). The argument has been confined to the
driving in of pegs into the ground to show the proposed line of the road. I do
not think these were a ‘specified operation’ within subparagraph 2(d). They
were tentative and provisional until approved by the highway authority. They
were not permanent at all. They could be easily removed. They were preparatory
acts — acts done in anticipation of ‘operations’ which were to follow. They
were not part of the ‘operation’ of laying out the road.
Conclusion
This is a
difficult point of construction on which different minds may well come to
different conclusions. Everyone will have sympathy with the developers who were
prevented by bad weather conditions from beginning operations before March 28
1979. But equally everyone will have sympathy with the villagers at Cradley,
who are anxious to preserve its character and safeguard it from intruders from
outside. These sympathies are so evenly balanced that we must decide it simply
by the true interpretation of the statute. I hold that the development was not
before March 28 1979 and that thereby it is not now permitted. I would allow
the appeal accordingly.
Disagreeing
with the Master of the Rolls and holding that the appeal should be dismissed,
EVELEIGH LJ said: I can find no suggestion in the inspector’s report or in the
minister’s letter to indicate that the builders, the respondents, were not
entitled to begin work on constructing any estate roads. It is true that
condition 16 of the approval of reserved matters dated March 28 1977 referred
to details of the layout and alignment, width and levels of the proposed estate
roads, and stated: ‘No work on the site of the development shall be commenced
until details have been approved by the highway authority and an agreement
entered into’. The appellants have placed no reliance upon this condition
before and there is no indication that the matter has been argued at any stage
of these proceedings. The parties have accepted and the minister concluded that
the relevant date by which development had to be begun was March 28 1979.
Section 42(2)(b)(ii) provides that development must be begun not later than
‘the expiration of two years from the final approval of the reserved matters
or, in the case of approval on different dates, the final approval of the last
such matter to be approved’. If further approval were required in the present
case, the effect would be to extend the time-limit beyond March 28 1979. I feel
completely unable to place any reliance upon condition 16 in these
circumstances and it would be clearly unfair to the builders to do so. I can
only assume that there is some explanation of this apparent irregularity.
I take the
following extract from the inspector’s report:
On January 8
1979 Mr Bevan, the managing director of the appellant company, and Mr French,
examined the drawings of the proposed site works
Starting work
on January 11 1979 and continuing on January 12 and 16 Mr Bevan and Mr French,
assisted by a labourer, cut lines to the boundary hedges and measured the
position of the centre line of the first 250 ft of the estate road on the site,
which they marked by putting in pegs at intervals of about 50 ft; they also put
in ‘off set’ pegs to mark the line of the pavements on each side at similar
intervals.
The pegs used
were about 1 1/2 in or 2 in square by 2 1/2 ft long, and pointed at one end and
were driven into the ground to leave from 6 to 10 in above the ground; steel
pins were used where it was necessary to place a peg into the metalled track on
the site.
Mr Doyle, Mr
Bevan’s assistant, checked the position of the pegs marking the first 250 ft of
the estate road during February 1979; these pegs were sufficient for the driver
of an excavating machine to follow when the construction of the road was begun,
following the company’s practice; the pegs were dug out with the topsoil on the
road by a machine during the first part of April 1979, when the weather had
improved sufficiently to allow work to proceed.
During the
second part of January 1979 and before March 28 1979 Mr French continued to
place pegs to mark the centre line of the estate road beyond the first 250 ft,
and he also marked with pegs and hammer-head turning places on the estate
roads; some of these pegs were plotted on plan E by the council’s officers in
April 1979.
On February
12 1979 because of bad weather the appellants decided to leave work on the site
until further notice and they drove in the road marker pegs to just above
ground level to prevent them being removed by unauthorised persons.
Sections 41
and 42 of the Town and Country Planning Act 1971 relate to the duration of
planning permission, and their effect as regards the present case is that
development had to be begun not later than March 28 1979. Section 43(1) and (2)
provides:
(1) For the purposes of sections 41 and 42 of
this Act, development shall be taken to be begun on the earliest date on which
any specified operation comprised in the development begins to be carried out.
(2) In subsection (1) of this section ‘specified
operation’ means any of the following, that is to say —
(a) any work of construction in the course of the
erection of a building;
(b) the digging of a trench which is to contain
the foundations, or part of the foundations, of a building;
(c) the laying of any underground main or pipe to
the foundations, or part of the foundations, of a building or to any such trench
as is mentioned in the last preceding paragraph;
(d) any operation in the course of laying out or
constructing a road or part of a road;
(e) any change in the use of any land, where that
change constitutes material development.
The inspector
came to the following conclusion:
I consider
that the marking out of the line and width of the first 250 ft length of the
estate road with pegs, placed accurately by measurements taken from the site
boundaries, so that the road could be constructed with machines guided by these
pegs, did amount to an ‘operation’ in the course of laying out part of a road
as defined in paragraph (d) of section 43(2). Therefore, it was a specified
operation. Laying out does not appear to be defined in the 1971 Act, but its
meaning to me is the marking out on the ground of the road in accordance with
an approved plan; the Concise Oxford Dictionary, 6th ed, supports this
interpretation. Laying out was a necessary preliminary to the construction of
the road and for the first 250 ft the construction followed in April shortly
after the expiry date. As well as completing the laying out of the first 250
ft, pegs were also placed to mark considerable stretches of the remaining
estate roads before March 28 1979.
Counsel for
the appellants submitted: (1) That the words ‘laying out’ involved an activity
closely allied to construction itself and that ‘pegging out’ the road was not
such an activity. It was submitted that road material is laid out when it is
placed on the road and that the expression in section 43 involves doing
something that was a permanent contribution to the road.
(2) Alternatively, if the builders were engaged
in laying out the road, then it is submitted that they had not begun to carry
out any operation in the course thereof because the word ‘operation’ itself in
the Town and Country Planning Act referred to an activity which changes the
physical character of land to some permanent extent.
(3) That as the minister did not apply either of
these tests, he applied the wrong test in law.
The
meaning of ‘laying out’
The
experienced builders who gave evidence to the inspector did not speak of laying
out. They said that they were ‘setting out’ the road. However, the phrase
‘laying out’ has been used in a number of statutes. The Towns Improvement
Clauses Act 1847, section 63, reads: ‘It shall not be lawful to make or lay out
any new street until the same be’, etc. The Metropolis Management Amendment Act
1862 provided that no existing road or way, being of less than 40 ft, should
after 1862 be formed or laid out for building as a street for the purposes of
carriage traffic unless it were widened to the full width of 40 ft. There the
words ‘laid out’ contemplate a stage before building has begun.
Section 157 of
the Public Health Act 1875 provided: ‘Every urban authority may make by-laws
with respect to the following matters; (that is to say) (1) with respect to the
level, width and construction of new streets and the provisions for the
sewerage thereof’. The section then goes on to say, ‘and they may further
provide for the observance of such by-laws by enacting therein such provisions
as they think necessary as to the giving of notices, as to the deposit of plans
and sections by persons intending to lay out streets or to construct buildings’,
etc. The reference to ‘lay out streets or to construct buildings’ might at
first sight invoke the argument that to lay out a street was an activity
similar to that of constructing a building. However, that argument could not
prevail in my opinion when one appreciates that the first matter listed in the
subsection which I have reproduced above refers to the level, width and construction
of new streets. Construction is clearly something different from laying out.
A number of
expressions are to be found in the statutes relating to the provision or
creation of roads and streets. We find ‘making’ (section 146 of the Public
Health Act 1875), we find ‘laying out’, we find ‘constructing’ and we find
‘building’. (For example, the Metropolis Amendment Act above, and the Towns
Improvement Clauses Act, section 63.)
These various
expressions are used with precision. A street may be made without being laid
out. It may simply grow. A street may be laid out without necessarily starting
on the drawing-board or being pegged out on the land. For example, by a
deliberate construction of a line of houses facing each other and thus
delineating a space between them which is intended to be used as a street. A
road or street may be constructed without being laid out as where a pre-existing
road which has grown is treated with some form of top surface. In some cases
these terms may be interchangeable, but the authorities in my opinion clearly
support the conclusion that laying out is the process of planning. This process
may first be carried out on the drawing-board. It is then actually set out on
the ground. In my opinion section 43 of the Town and Country Planning Act 1971
refers to the process of planning or delineating the road upon the ground.
These
different stages and the meaning of the words can clearly be seen in the
judgments in Robinson v Barton-Eccles Local Board (1883) 21 Ch D
621. The Master of the Rolls at p 632 said:
Now there are
two ways in which a street may come into existence where there was no street
before. A person may take a grass field or a country lane (for in my opinion,
it makes no difference whether or not there was a public highway and lane, or a
footpath existing before which is thrown into the street and is utilised, or
whether there was nothing but a mere plot of grassland out of which a new
roadway is made), he may take it and build continuous lines of houses so as to
form what is commonly known as a street. When I say continuous lines, I do not
mean that there are to be no breaks or intervals, but there must be a certain
degree of continuity. A new street may arise in another way, and that is, where
it is not from the first laid out as a street in a formal manner, but may be
considered to grow up, so to say, of itself. This often happens where there is
an existing highway, and people build houses along the sides of that highway,
so that, without any intention of laying out a street, the street grows. When
does it become a street? This question
cannot be answered until you know the locality. It must be a question in each
particular case when the road becomes a street. At some time or other it
becomes a street, and as soon as it does so it is a new street, and not the
less a new street because some of the houses were built before it was a street.
At p 634 he
said: ‘He is building his line of houses on the other side of the new street;
he is laying out a new street by building a continuous line of houses’. While
in that case the building of the
street cannot be laid out by using some other method to delineate it upon the
ground.
At p 636 Brett
LJ said:
New streets
may be made under different circumstances. The whole land on both sides may
belong to one owner. Then suppose he conceives a design of making a new street,
and has a plan drawn. To my mind that does not begin the laying out the street
within the meaning of the Act of Parliament. The Act of Parliament is not
concerned with what people do upon paper, but with what they do in point of
fact, and upon the land. When would such an owner begin to lay out and form a
street? To my mind he would do so when
he built his first house, having the intention to go on to make a street. He
would then have begun to lay out and to form a street, and it would from that
moment begin to be a street.
At p 637 he
said:
One man at
the end of the street may have begun to build, but the others have not built
nor laid out their land as building land, nor advertised it as building land,
nor done anything to show an intention to build. Then the street really forms
itself as it were by gradual accretion without any common intent. In such a
case you have to wait until you can see by the course of building that there is
a common intent to build. The moment you see that, you come to the conclusion
that a street has begun to be formed.
At the bottom
of that page he said:
The by-law
does not say that it shall be laid out on a plan, and, as I said before, the
laying out on a plan is utterly immaterial. A plan laid out may show an intent
to do a thing, but the laying out in this by-law does not mean laying out on
paper. It means laying out on the land. It is laying out and forming it.
The cases
establish that a street is not laid out for the purpose of the various Acts merely
by being planned on the drawing-board. On the other hand, the fact that a
permanent alteration to the land delineating the line of a street may,
particularly when so intended, amount to laying out a street in no way
indicates that some permanent demarcation is required before a street is laid
out.
In the absense
of authority to the contrary, I would myself regard the words as meaning that
the plan of the road is being marked upon the land. I have considered a number
of authorities which have been concerned with whether or not an activity has
amounted to laying out either a road or a street and I can see nothing in any
of them to cast a doubt upon this meaning of the word (see A-G v Dorin
[1912] 1 Ch 369 and the cases referred to in argument therein). Furthermore,
the distinction that is to be found between laying out a street and the further
distinction between those expressions and constructing a street (or road)
compel me to reject the submission that ‘laying out’ in section 43 is to be
regarded as something analogous to constructing. Laying out is an earlier stage
in the planned making of a road to that of construction. It does not follow,
however, that some operation related to construction may not be carried out
before the laying out is embarked upon. For example, an old strip of roadway
may be intended to form part of a new one or an old road may have to be
remodelled to accommodate the weight of traffic, and I can envisage the
situation where construction is undertaken in places before the intended road
begins to be laid out on the ground. Thus it is necessary for section 43(2)(d)
to allow for each of the two processes to be considered independently. I
therefore cannot accept that the phrase ‘laying out’ in section 43 requires
that some part of the road shall have been formed by placing something in a
permanent position on the land.
On the other
hand, I do not think that ‘laying out’ on a drawing-board is enough. All the
other specified operations in section 43 are activities carried out on the land
itself and the phrase ‘laying out’ must be regarded similarly.
As to the
meaning of ‘operation’
The first step
is to look at section 43 and attempt to discern its meaning without reference
to decided cases. So often that which is relatively simple on the face of it is
complicated by adopting the process of starting with the decided cases or
indeed the last decided case instead of starting with the statute itself. In Barrell
v Fordree [1932] AC 676 at p 682 Lord Warrington said: ‘In my opinion
the safer and more correct course of dealing with a question of construction is
to take the words themselves and arrive if possible at that meaning without in
the first instance reference to cases’. Doing that, it seems to me that
‘operation’ in section 43(1)(d) refers to any working activity on the land in
the course of laying out a road whether or not that activity has resulted in a
change in the character of the land or in anything that might be called
development. As on the face of it I find no difficulty in understanding the
meaning of the word ‘operation’ in section 43(1)(d), I can see no reason for
trying to introduce a difficulty.
At the
beginning of the section the words ‘specified operation’ are used as a label
applicable to each of the examples listed. One of these (e) records ‘any change
in the use of any land where that change constitutes material development’.
Although in Parkes v Secretary of State for the Environment
[1979] 1 All ER 211 a distinction was drawn between operations and use — the
sorting of material was held to be a use and not an operation — yet for the
purpose of section 43 any change in the use of land has been made a specified
operation. It is not restricted to something which results in a physical change
to the land. When I come to consider the meaning of the word ‘operation’ in
section 43(2)(d) and find it intelligible in its natural meaning, why should I
go outside the section to attract a more restricted meaning when the very
section does itself employ the word more widely, so that it includes use which
does not necessitate permanent change in the character of the land?
If the
expression ‘laying out’ is only applicable to a process which itself affects a
change in the physical character of the land and does not therefore include
pegging, we have no need to consider whether the word ‘operation’ should be
given a restricted meaning. The stage of laying out would not have been reached
and consequently the pegging could not be an operation in the course of it, no
matter what the word ‘operation’ means.
If, as I
think, ‘laying out’ means simply the process of delineating the shape and
confines of the road upon the ground, the appellants have to argue that the
word ‘operation’ bears the restricted meaning in that some change in the
physical condition of the land with some degree of permanence has to be
effected by the operation. This argument would mean that something of a
permanent nature has to be achieved within a process which is of itself only
temporary or preparatory. It seems to me to follow that the use of the word
‘operation’ cannot of itself introduce the idea of permanent change.
Parkes’ case did not decide that the carrying out of operations in or over
or under the land does not begin until there is some change in the physical
condition of the land. It contrasted use which did not result in some physical
alteration to the land with ‘operations’ which would. Lord Denning at p 213
said: ‘Looking at these various sections it seems to me that the first half,
‘operations’, comprises activities which result in some physical alteration to
the land, which has some degree of permanence to the land itself, whereas the
second half, ‘use’, comprises activities which are done in, alongside or on the
land but do not interfere with the actual physical characteristics of the
land’. In other words, as I understand it, the operations have to be carried
out with the object of producing some physical alteration to the land. Lord
Denning spoke of activities which result — not of activities which have
resulted. At p 215 I said: ‘In my opinion the word means operations with the
same kind of purpose as building operations, that is to say, to add to or to
alter the condition or the state or the quality of the land, usually no doubt
with the future or the continuing use of the land in mind’. I therefore do not
regard Parkes’ case an as authority for the proposition that there
cannot be an operation within section 43 unless some physical change has
already been achieved.
If an oil
company constructs a drilling rig for testing purposes but the drill has not
yet pierced the soil, are we to say that it is not carrying on engineering
operations?
This
conclusion seems to me to accord with the intention of the legislature.
Sections 41 and 42 seek to ensure that land will not be held undeveloped for an
indefinite period in the hands of speculators whose only intention is to sell
the land at some future propitious date at the enhanced value that development
permission attracts. Section 43 seeks some earnest of intention to develop. The
specified operations are not necessarily very extensive. Very little need be
done to satisfy the section. That which is done, however, must genuinely
be done for the purpose of carrying out the development. Section 43 is a
benevolent section which aims at avoiding hardship to a developer who is
genuinely undertaking the development. The respondents in this case were
clearly doing that. It would indeed be hard to interpret section 43 by
importing a restriction on the natural meaning of the words by reference to the
decision in Parkes’ case.
I would just
add that if circumstances indicated that the development was no longer
desirable, then there is under section 45 a power to revoke any permission to
develop.
In my opinion
the minister applied the correct test and was entitled to find as he did. I
therefore would dismiss this appeal.
Agreeing that
the appeal should be dismissed, WATKINS LJ said: The grounds of this appeal
against a decision of Sir Douglas Frank QC, sitting as a deputy High Court
judge, are that he erred in law in rejecting the submissions advanced on behalf
of the appellants, the Malvern Hills District Council, that the word
‘operation’ in section 43(2)(d) of the Town and Country Planning Act 1971 means
an operation that changes the physical character of the land and has some
degree of permanence and in deciding that whether or not there had been an
operation in the course of laying out or constructing a road or part of a road
for the purposes of section 43(2)(d) was purely a question of fact and degree
for the first respondent, the Secretary of State for the Environment, in
determining it.
In support of
the proposition that the word ‘operation’ in section 43(2)(d) bears the meaning
he contends for, counsel for the district council relies upon the judgment of
Lord Denning MR in Parkes v Secretary of State for the Environment
[1979] 1 All ER 211 in which at p 213H he stated with reference to sections 22,
45 and 51 of the Act of 1971:
Looking at
these various sections, it seems to me that the first half, ‘operations’,
comprises activities which result in some physical alteration to the land,
which has some degree of permanence to the land itself, whereas the second
half, ‘use’, comprises activities which are done in, alongside or on the land but
do not interfere with the actual physical characteristics of the land.
By analogy
counsel argues that the word ‘operation’ as used in section 43(2)(d) must bear
the same meaning as was attributed to ‘operations’ by Lord Denning MR.
Accordingly, since what was done by Robert Barnes & Co Ltd — the builders —
did not, as is the fact, bring about any physical alteration to the land they
had recently purchased, they had not begun to carry out an operation which
could save the existing planning consent from lapsing by effluxion of time.
I am unable to
accept that. The word ‘operation’ in section 43(2)(d) must be regarded always,
as is therein stated, as a ‘specified operation’, the definition of which is
contained within the subsection itself, which so far as material provides:
43(2) In
subsection (1) of this section ‘specified operation’ means any of the
following, that is to say . . . (d) any operation in the course of laying out
or constructing a road or part of a road.
Accordingly,
seeing that the definition of ‘specified operation’ is so explicitly provided
for, there is no warrant that I can see for importing into it the notion that
the process of laying out a road has not begun unless what has been done has
altered the land physically to some permanent extent. The meaning attributed to
‘operations’ in Parkes’ case is, I think, inapplicable to section
43(2)(d), the provisions in which are wholly different from those contained in
those sections in which the word ‘operations’ is used. It is, therefore, of no
assistance in determining the vital question in this appeal which is, had the
builders begun to lay out a road which was to form part of the permitted
development before time ran out?
In Spackman
v Wiltshire County Council (1977) 33 P&CR 430 Willis J said of the
provisions of section 43, ‘these are in a sense penal provisions which take
away from the subject, albeit in a fairly leisurely way, a vested entitlement,
and should in my view be construed benevolently towards and not strictly
against the subject’.
I respectfully
agree and would add that this is especially so where, as here, the bona fides
of the developers of the land — the builders — are not assailed. The inspector
found and the Secretary of State accepted that the builders intended to develop
the appeal site in parallel to the nearby Huntingdon Estate which they were in
the process of building and at first to construct a length of 250 ft of the
estate road and to start on about seven houses in order to give continuity of
work.
While the line
of the road, pegged out to a substantial extent, may have been the subject of
an order of variation by the district council before it was completed, the
pegging out was, in my opinion, upon the whole of the accepted facts, an
unequivocal manifestation of the intention of the builders to begin development
within the permitted time and, weather permitting, to proceed with it from that
time henceforward until development was complete.
I suspect that
the understandable opposition of some, at least, of the villagers of Cradley
and Westfields, who must have thought time was about to save them from an
unwanted intrusion of new houses into their rural neighbourhood, has driven the
district council to seize upon every legitimate tactic and argument to thwart
the builders. By doing so they may be obliged not only to permit the
development to go on but also to pay quite heavy damages to the builders.
Doubtless they must view these twin prospects with dismay. Nevertheless, I feel
bound to say that I see no alternative to their having to face up to them,
since I am satisfied that the Secretary of State was fully entitled to accept
the inspector’s conclusion about the effect of pegging out the road and other
relevant acts done by the builders.
We heard a
number of submissions about what activity could be, in any given circumstance,
properly described as the laying out of a road. There is apparently no legal
authority upon the matter. We were not provided with any assistance from any
other quarter to decide in what circumstance the process of laying out could be
said to have begun.
The
inspector’s conclusions upon the matter, accepted by the Secretary of State,
were as follows:
On the other
hand I consider that the marking out of the line and width of the first 250 ft
length of the estate road with pegs, placed accurately by measurements taken
from the site boundaries, so that the road could be constructed with machines
guided by these pegs, did amount to an ‘operation’ in the course of laying out
part of a road as defined in paragraph (d) of section 43(2). Therefore it was a
specified operation. ‘Laying out’ does not appear to be defined in the 1971
Act, but its meaning to me is the marking out on the ground of the road in
accordance with an approved plan; the Concise Oxford Dictionary, 6th ed,
supports this interpretation. Laying out was a necessary preliminary to the
construction of the road and for the first 250 ft the construction followed in
April shortly after the expiry date. As well as completing the laying out of
the first 250 ft, pegs were also placed to mark considerable stretches of the
remaining estate roads before March 28 1979.
I can see no
legal or other reason for doubting the soundness of that reasoning and none for
questioning the decision which led from it.
There is
neither error of law nor principle of construction detectable there.
Accordingly, it seems to me that the determination of whether or not what had
been done on the land in the circumstances of this case amounted to the
beginning of a specified operation — the laying out of a road — was
pre-eminently a matter of fact and degree from the Secretary of State.
In his
decision letter he appears to have made that determination, after having
correctly applied the provisions of section 43(2)(d) to the facts found by the
inspector. Accordingly, I deem it unnecessary for the matter to be referred
back to him for further consideration. I would simply dismiss this appeal.
The appeal
was dismissed with costs awarded to both respondents. Leave was given to appeal
to the House of Lords.
