Town and Country Planning Act 1971 — Appeal by case stated from decision of the Lands Tribunal — Blight notice — Appellant in person before Court of Appeal — Appellant’s property essentially residential but with a workshop at the rear which had been used to make ice cream commercially — Property was shown in the structure plan as allocated for further education (polytechnic) purposes — Appellant served a blight notice on the planning authority under section 193 of the 1971 Act, to which in due course the authority replied with a counternotice objecting to the blight notice under section 194 — At the date of service of the blight notice the appellant’s property qualified under section 192(1)(a) as land indicated in a structure plan as required for the purposes of functions of a local authority, but by the time the counternotice was served there had been a change of policy and the authority no longer proposed to acquire any part of the appellant’s property — The question was which of these two dates was the material one for the establishment of the authority’s objection — Held, affirming the decision of the Lands Tribunal, that the material date was the date of the objection notice — Held further that the Lands Tribunal had no residual discretion to consider ‘hardship’ — Appeal dismissed
This was an
appeal by Cecil Mancini by way of case stated from a decision of the Lands
Tribunal (C R Mallett Esq) given on March 15 1982 (REF/21/1981). The appeal
raised questions as to a blight notice served by the appellant on Coventry City
Council and the council’s counternotice objecting to the blight notice. The
notices related to property at 56-58 Whitefriars Street, Coventry.
The appellant
appeared before the Court of Appeal in person; W M Kingston (instructed by the
Secretary, Coventry City Council) represented the respondent council.
Giving the
first judgment at the invitation of Stephenson LJ, PURCHAS LJ said: This is an
appeal by way of case stated from the Lands Tribunal under section 3(4) of the
Lands Tribunal Act 1949. In view of some of the issues raised by the appellant,
it would perhaps be useful just to recall what that subsection says:
(4) A decision of the Lands Tribunal shall be
final: Provided that any person aggrieved by the decision as being erroneous in
point of law may, within such time as may be limited by rules of court, require
the tribunal to state and sign a case for the decision of the court . . .
Before
referring to the questions in the case stated, to which I shall revert at the
end of this judgment, I should say that the appellant, Mr Mancini (to whom I
shall refer as ‘the applicant’), has appeared before us in person. I wish
immediately to pay tribute to the courteous and skilful way in which he
presented his appeal and to recognise that, although in his notice under Order
31 of the Rules of the Supreme Court other points were raised, on this appeal
he raised three arguable points, which he presented reasonably and with
restraint and skill. For my part I am doubtful whether any advocate could have
presented them in a manner better than that with which the applicant presented
his case. The fact that we have found against him on each of the three
questions is certainly by no means due to any shortcomings in his advocacy.
The appeal raises
questions relating to the ‘blight’ provisions in the Town and Country Planning
Act 1971, to the sections of which I hereafter refer by number and letter only.
For all purposes of this appeal the appropriate planning authority were the
respondents, the Coventry City Council, to whom I shall refer as ‘the council’.
I shall also be referring shortly to another statute, the Land Compensation Act
1973, to which I shall refer as ‘the 1973 Act’.
The background
against which this appeal is brought concerns a property in Coventry consisting
of two dwellings occupied together (‘the property’). They have in fact been the
home of the applicant since as long ago as 1924. He has been entitled to the
freehold interest since 1945. At one stage the council raised some question
about his interest in the land but this is no longer an issue. The property has
been used essentially for residential purposes, but it has a workshop at the
back which has been used for many years to make ice cream commercially. This
part enjoyed a planning consent permitting a Class III light industrial user,
the consent on each occasion being limited to three years, being renewed from
time to time. It was a user that certainly was not consistent with the
immediately surrounding area.
The present state
of the area as a whole can be seen from one of the documents attached to the
case stated, document E. That is in fact a plan relating to a subsequent
resolution, but from it can be determined the general layout of the area. It is
one in which there are residential properties and a large area of land occupied
by the Lanchester College of Technology. We are told by the applicant that
today the immediately surrounding houses, which appear probably to be
semi-detached or may be partly terraced, are in private ownership but used as
lodging rooms for students, presumably many of whom attend the College of
Technology. But the ownership of this land was nothing to do with the education
authority; the land was in private ownership — a matter to which, understandably,
the applicant referred during the presentation of his appeal with some sense of
feeling; I understand his complaint, but in law the distinction is quite clear.
From 1972
there has been a review town map. We were not told by Mr Kingston, who appeared
for the council, precisely the status of that town map, but there seems little
doubt that for 1971 Act purposes it must be deemed to be the structure plan
relevant to the considerations which are before us. The property falls within
an area shown on the map as allocated for further education (polytechnic)
purposes.
In April 1961
the applicant was told by the city architect and planning officer that the
property came within an area affected by new work which was programmed to start
within the next five or 10 years and that the corporation would find
alternative accommodation for him. Nothing came of this, but in October 1969 he
learned that the property came within a much larger area to be scheduled in the
review town map, to which I have just referred, but again that the premises
were not likely to be required within the next three years. As a matter of
planning history, although there is in preparation a local plan, no formal
steps have been taken under the 1971 Act for its approval, but merely
consideration of a reallocation, as a result of which the property will be in
an area zoned for residential purposes. As Mr Kingston conceded, the formal
status of the land remains as described in the review town map of 1972.
During the
ensuing years there were a number of negotiations between the applicant and the
council. These are carefully set out in the tribunal’s decision; it is not
necessary for the purposes of this appeal to list them, but merely to comment
that it is clear that the
outward signs of being agreeable to acquire it, but that on each occasion and
at each stage something seems to have gone wrong.
Eventually Mr
Mancini made efforts to sell the property himself, and finally decided to
proceed under the blight provisions of the Act. It is necessary to refer
shortly to one or two sections which controlled the events from there on.
Section 192(1)
sets out in a number of subparagraphs descriptions of land falling within the
definition contained in subsection (6) of ‘the specified descriptions’. For the
purposes of this appeal we are concerned only with subsection (1)(a), which
reads:
. . . is land
indicated in a structure plan in force for the district in which it is situated
either as land which may be required for the purposes of any function of a
government department, local authority or statutory undertakers, or of the
National Coal Board, or as land which may be included in an action area.
Subparagraph
(b) relates to similar allocations of users which are proposed for development,
but are not a part of any structure plan.
As I have
mentioned earlier in this judgment, although we were not formally informed, it
is assumed that the structure plan for the purposes of this Act (as amended)
must be taken to be the 1972 review town map.
It is conceded
on the part of the council that at that time the applicant’s land fell firmly
within subsection (1)(a) of section 192. Subsection 192(6) also provides for
the purposes of sections 193 to 207 that ‘these provisions’ means the
provisions of those sections. There have been subsequent statutes, to which it
is not necessary to refer in detail, which have both amended the specified
descriptions already set out in subsection 192(1) and added a number of new
specified descriptions to that subsection.
Exercising his
right under section 193, the applicant served a blight notice claiming that he
had a necessary interest and was entitled to protection. It is necessary to
quote a part of section 193:
(1) Where the whole or part of a hereditament or
agricultural unit is comprised in land of any of the specified descriptions,
and a person claims that —
(a) he is entitled to an interest in that
hereditament or unit; and
(b) the interest is one which qualifies for
protection under these provisions; and
the opening
words have been repealed, but I quote them for the purposes of this section in
view of the argument raised by the appellant
(c) since the relevant date he has made
reasonable endeavours to sell that interest; and
(d) in consequence of the fact that the
hereditament or unit or a part of it was, or was likely to be, comprised in
land of any of the specified descriptions, he has been unable to sell that
interest except at a price substantially lower than that for which it might
reasonably have been expected to sell if no part of the hereditament or unit
were, or were likely to be, comprised in such land.
Subsection
(3), which has also been repealed by the 1973 Act, defined the relevant date,
so far as subparagraphs (a), (b) or (c) of subsection (1) of section 192 are
concerned, as meaning the date on which the development plan or amendment by
virtue of which land was first so indicated, allocated or defined, came into
operation.
The date of
the blight notice was December 4 1980. The applicant had in fact served an
earlier notice, in November, but the council, so far as we understand from the
applicant, had rejected the notice and had raised doubts about the applicant’s
interest or title in the property. Of course, that was one of the matters which
he had to establish under section 193(1)(a) and (b); but the formal blight
notice was served on December 4 and it is accepted by the council that at the
date on which it was served the property qualified under subsection (1)(a) of
section 192, and that the applicant had an appropriate interest under section
193(1)(a) and (b).
Before parting
with section 192 it should be noticed that that section merely defines which
lands qualify as being of a ‘specified description’ and gives no right; the
right to serve the blight notice arises under section 193.
If nothing
more had happened, the provisions of the Act would place upon the council an
obligation to acquire the land as if they had served a compulsory purchase
notice and thereafter to treat and to pay an amount which would have been
payable had there been an exercise of compulsory purchase powers. In order to
avoid that liability, it is open to the council to serve an objection to a
blight notice under the provisions of section 194. They must do this within two
months and they must set out in their notice the objections upon which they
rely. Section 194(1) provides:
Where a
blight notice has been served in respect of a hereditament or an agricultural
unit, the appropriate authority, at any time before the end of the period of
two months beginning with the date of service of the notice, may serve on the
claimant a counternotice in the prescribed form objecting to the notice.
It is
necessary to read only some of the subparagraphs of subsection 194(2), as
follow:
(2) Subject to the following provisions of this
section, the grounds on which objection may be made in a counternotice to a
notice served under section 193 of this Act are:
(a) that no part of the hereditament . . . to
which the notice relates is comprised in land of any of the specified
descriptions.
(b) that the appropriate authority (unless
compelled to do so by virtue of these provisions) do not propose to acquire any
part of the hereditament . . . in the exercise of any relevant powers —
Subparagraph
(d) provides that in the case of land:
. . . the
appropriate authority (unless compelled to do so by virtue of these provisions)
do not propose to acquire in the exercise of any relevant powers any part of
the hereditament or . . . any part of the affected area during the period of
fifteen years
later reduced
to 10 by an amendment
from the date
of the counternotice or such longer period from that date as may be specified
in the counternotice.
Finally, (g)
provides:
That the
conditions specified in paragraphs (c) and (d) of section 193(1) of this Act
are not fulfilled —
those
subsections relate to the efforts by the applicant to sell the interest, to
which reference has already been made.
Subsection (3)
provides that an objection shall not be made on the grounds mentioned in
subparagraph (d) — that is, the limited period of 10 years — ‘. . . if it may
be made on the grounds mentioned in paragraph (b) of that subsection’ — that
is, a present proposal simply not to acquire the interest.
The applicant
exercised a right which was given to him under section 195 to refer the
question of the objections in the counternotice to the Lands Tribunal for determination.
Section 195(1) provides as follows:
Where a
counternotice has been served under section 194 of this Act objecting to a
blight notice, the claimant, at any time before the end of the period of two
months beginning with the date of service of the counternotice, may require the
objection to be referred to the Lands Tribunal.
It is this
section which confers upon the Lands Tribunal jurisdiction to entertain the
matter under dispute.
Subsection
(2):
On any such
reference, if the objection is not withdrawn, the Lands Tribunal shall consider
the matters set out in the notice served by the claimant and the grounds of the
objection specified in the counternotice; and, subject to subsection (3) of
this section, unless it is shown to the satisfaction of the Tribunal that the
objection is not well founded, the Tribunal shall uphold the objection.
Subsection
(3):
An objection
on the grounds mentioned in section 194(2)(b), (c) or (d) of this Act shall not
be upheld by the Tribunal unless it is shown to the satisfaction of the
Tribunal that the objection is well founded.
There is,
therefore, in relation to subparagraph 194(2)(b), (c) and (d) a shift in the
approach of the tribunal as to whether they are satisfied that the objection is
well founded or not.
Subsection
(4):
If the
Tribunal determines not to uphold the objection, the Tribunal shall declare
that the notice to which the counternotice relates is a valid notice,
and thereafter,
that having been done, the council are under an obligation to proceed, in the
manner which I have already described in this judgment, to acquire the land.
Section 196
details the steps to be taken in the event of the Lands Tribunal finding that
the blight notice is valid, or if a period of two months has passed during
which no counternotice has been served in accordance with the provisions:
. . . the
appropriate authority shall be deemed to be authorised to acquire compulsorily
under the appropriate enactment the interest of the claimant in the
hereditament.
In support of
his reference to the tribunal, the applicant produced a case for reference to
them, which is included with the papers. It is not necessary for the questions
arising on this appeal to cite any of the contents of that document, save to
say that it shows that the approach to this matter has been consistent
throughout so far as the applicant has been concerned.
The hearing
took place on November 25 1981. A considerable body of evidence was led by both
parties. The tribunal had all the relevant facts and professional assistance
that it required. There then passed a period before the decision was announced.
The decision is dated March 15 1982; in the interval, neither party knowing the
result, the applicant continued, with the encouragement of the council, to try
to sell his interest in the land, but without success. The efforts were
directed in two directions: (1), if I can use the expression, the commercial
direction — that is, to people interested in making ice cream, but of course
those efforts would be limited by the restriction of three years placed by the
council on the consent for Class III light industrial user. So far as the other
parts of the premises were concerned, one cannot escape the thought that in
their then condition, being situated in an area containing landladies and
students, with the continuing town map of 1972 which would be available to a
prospective purchaser, it is not surprising that the efforts to sell, albeit
subsequently found to be reasonable, were not successful.
I now wish to
refer to the decision of the tribunal. The objection notice with which they
were concerned related, in the second part, to an objection under paragraph (g)
of section 194(2). On that part of their objection notice the council failed;
the tribunal found in favour of the applicant and no issue has been raised in
respect of that on this appeal — the finding of the tribunal is accepted by the
council.
I now pass to
p 5 of the decision of the tribunal where, having referred to the nature of the
applicant’s interest, the decision reads as follows:
The city
council do not dispute that at the date of the purchase notice the premises
were subject to planning blight and indeed had been for some considerable time,
but the future planning policies in respect of Whitefriars Street were then
under review and their intentions were uncertain —
I should add
that it was in Whitefriars Street that the property was situated.
The service of
a purchase notice had the effect of expediting the review. On January 28 1981
the Board of Governors of the Coventry (Lanchester) Polytechnic Sources
Committee resolved that the subject premises were surplus to further education
(polytechnic) requirement and on January 30 1981 the Planning Sub-Committees
Nos 1 & 2 (Joint Meeting) approved the principle of rezoning of the land
for primarily residential purposes.
It is clear
therefore that at the date of the objection to the purchase notice the City
Council did not propose to acquire any part of the hereditament and had also
taken steps to include the subject premises in an area zoned for residential
development. They did not of course remove the effects of what I shall term
non-statutory planning blight on the area or the subject premises overnight but
within the narrow confines of section 194(1) of the 1971 Act I am satisfied on
the facts that the City Council’s objection to the purchase notice is well
founded.
Omitting some
paragraphs which refer to decisions of the tribunal to which I shall revert
subsequently, the decision continues:
It would be
difficult to say that in the instant case Mr Mancini has suffered no hardship
by reason of any action or inaction taken by the City Council in the past. But
the action of including the subject premises within a small section of land now
allocated for residential purposes has the effect of alleviating that hardship.
‘I find the
City Council’s objection to the claimant’s purchase notice to be well founded,
and I uphold that objection.’
There are
before us two letters containing a considerable number of issues related to the
drafting of the case stated, but in the end we have to consider the case as
stated and I have had little assistance from considering that correspondence,
although it shows, as before, that in many ways the applicant has been
consistent in his approach.
Before I turn
to deal with the appeal in detail, I would like to state my view of the
underlying purpose as disclosed in the 1971 and 1973 Acts. This is to achieve
planning control in the hands of the appropriate planning authority, but to
give relief to those who are, or will be in the future, affected by making the
compulsory purchase provisions, including provisions for compensation,
available to such persons. There are, however, in the part of the Act with
which this appeal is concerned, no relevant provisions for granting
retrospective compensation for past damage where, as a result of the planning
authority’s present lack of intention to acquire an interest there is, ex
hypothesi, no diminution as a result of blight on the present market value of
the interest in the land. One must be careful to distinguish a diminution in
the value of property which arises from a general deterioration of an area,
whether or not induced indirectly and in part by planning decisions, or a
diminution in the value arising from a restriction placed — and I use the word
in a non-technical sense — on a non-conforming user such as that enjoyed by the
workshop. The first point raised by the applicant on his appeal related to the
material date at which the Lands Tribunal should consider whether or not the
council had established that their objection under section 194 was well
founded. At one stage the applicant appeared to have relied upon the definition
of ‘relevant date’ in the unamended form of section 193(3). But, as I have already
indicated, this subsection and the words in section 193 (1)(c), to which the
definition applied, have been repealed by the Act of 1973. The applicant still
submits, however, that the material date should be the date of the blight
notice served under section 193, since that is the date when the damage has to
be established — that is to say, when the interest must be shown to be in land
falling within one of the specified descriptions. It is also the date in
respect of which the remedy is claimed.
There is much
force in these arguments. If the applicant is right in his contention, it is
accepted that this appeal must succeed. Mr Kingston submitted that the material
date should be the date of the objection notice served under section 194, since
it is not until the service of the objection notice that the Lands Tribunal has
any jurisdiction to entertain a claim under section 195. Moreover, with one
exception, to which I shall refer in a moment, the verbs in section 194(2) are
all in the present tense. Subsection (2)(a) uses the words ‘is comprised in
land of the specified description’ and not ‘was at the date of the blight
notice’ so comprised. Subparagraph (b) uses the present tense ‘do not propose’,
as opposed to ‘did not at the date of the blight notice propose’. But
subparagraph (e), which relates to an objection based upon the interest held in
the land by the applicant, uses the past tense, that:
. . . on the
date of the service of the notice under section 193 of this Act, the claimant
was not entitled to an interest in any part of the hereditament
and so on.
But in (f),
when the interest in the land is attacked in the counternotice but is not stated
to be non-existent — that is, it is an interest not qualifying for protection —
the wording of the section reverts to the present tense.
Apart from the
critical importance in this case of deciding whether the material date should
be the date of the blight notice or the date of the counternotice, problems of
this kind will arise in any case where relevant resolutions are passed by a
planning authority during the two-month period provided in section 194, as they
were in the case of Louisville Investments Ltd v Basingstoke District
Council (1976) 32 P&CR 419* (cited subsequently in this judgment).
*Editor’s
note: Also reported at (1976) 240 EG 637, 721.
It is
sufficient for me to mention at this point that the sense of injustice which is
obviously felt by the applicant arises from the coincidence of the alteration
in approach by the planning authority taking place at about the same time as
his action under the blight provisions. The possibility of the service of a
blight notice being coincidental with the preliminary steps towards a change in
planning policy, although giving no grounds for natural suspicion, is not in my
judgment a sufficient reason to favour the date of the blight notice as against
the date of the objection notice as the material date for consideration by the
tribunal. In the instant case the tribunal have found as a fact that the
authority were already reconsidering their policy before the service of the
blight notice. In other cases to which we have been referred, the tribunal,
clearly forming the view that the planning authority were manoeuvring as a
result of the blight notice, took the course of stating that they were not
satisfied that the authority had established that the objection was well
founded. See the Louisville case already mentioned and the Duke of
Wellington Social Club and Institute Ltd v Blyth Borough Council
(1964) 15 P&CR 212† . That is a course open to them and within their
functions under this legislation. It is clearly a practical
resolutions passed or other action taken by the council were not sufficient to
show that the objection was well founded.
† Editor’s
note: Also reported at (1964) 189 EG 1011.
There is
further support for the council’s contention that the material date for the
tribunal’s consideration should be the date of this objection notice to be
derived from the provisions of section 68(1) and 68(6) of the 1973 Act, but I
shall return to these in more detail when considering the applicant’s second
point of appeal.
Mr Kingston
relied on two authorities which bear upon the matter, but neither of which can
really be said to be definitive. The first case is a previous decision of the
tribunal in the case of Louisville Investments Ltd v Basingstoke
District Council (supra). The facts of that case concerned objections made
by the authority to blight notices relating to two plots of 6 acres and 87
acres of undeveloped land in Basingstoke. The land in question was subject to a
compulsory purchase order which had been submitted for confirmation to the
minister; the compulsory purchase order had been made in 1973, but had not been
confirmed. The respondent authority objected to the blight notices on the
ground that they did not propose to acquire any of the land unless compelled to
do so, and they also contended that proper attempts had not been made to sell
the interest. The authority had expressed a wish to acquire the land for
industrial purposes as part of the town development scheme, and had rejected
the claimants’ proposals to carry out their own industrial development. After
the making of the order, there was an agreement as to the price for the land,
but the acquisition of the land failed to take place owing to lack of funds.
The claimants made another offer to develop and sell, which was rejected, and
in October 1974 they served the blight notices. On the advice of counsel, the
compulsory purchase order was withdrawn early in 1975, the authority contending
that the blight was thus removed. They also withdrew an application for
planning permission to develop the land covered by the compulsory purchase
order, and stated that they would oppose a similar application by the claimants
on the grounds that there was no shortage of undeveloped industrial land in
Basingstoke and that the claimants’ land represented a useful reserve of
industrial land which should be developed at a later stage. I wish to cite two
extracts from the tribunal’s decision at p 432:
The question
what is or are the material date or dates as at which the tribunal, under
section 195, has to determine whether an objection is or is not well founded,
is one of some difficulty. I am tentatively of the opinion that because in the
words of Lord Devlin in the Essex case ‘it is the objection which is
referred to the tribunal’ and because of the use of the words ‘well founded’,
the relevant date is the date when the objection is made, that is to say, the
date of service of the counternotice. However, whether that be right or wrong,
an event (namely, revocation of the compulsory purchase order) which occurs
after the date of service of the counternotice cannot in my judgment deprive the
tribunal of jurisdiction. All that is necessary for jurisdiction is a valid
counternotice served under section 194 containing objections of the kind
referred to in that section. If the counternotices were valid in the first
place those conditions are satisfied. Moreover, where those conditions are met
the respondent authority cannot in my opinion rely upon an objection not
contained in the counternotice. The respondent authority in the present case
appears to be attempting to rely on paragraph (a) of section 194(2), though
that objection was not pleaded in their counternotice.
and at p 433:
I now come to
what I regard as the fundamental issue in the case. Ought I to be satisfied
that the respondent authority (unless compelled to do so by virtue of the relevant
provisions) do not propose to acquire any part of the claimants’ land? The answer is that, even if I consider events
which occurred right up to the date on which I read this decision, I am not so
satisfied. It appears to me that the council has never got to grips with this
question. It got to grips with the question whether the compulsory purchase
order should be revoked but it only did that, as I see it, because it had been
told to do so by counsel. So far as the council was concerned it was a matter
of expediency to get rid of the order, but the council has not gone further
than that. It has not considered directly what its intentions in the matter of
acquiring the claimants’ land are. It could have put the matter beyond all
doubt quite simply by resolving not to proceed with the acquisition. No such
resolution has been put before me. In the circumstances, having regard to the
correspondence, the evidence, and my findings of fact, it is a very real
possibility that the council still hankers after obtaining the claimants’ 34.4
acres . . .
Mr Kingston
then referred to the case of Essex Incorporated Congregational Church Union
v Essex County Council [1963] AC 808. This case concerned the equivalent
blight condition in sections 39 to 42 of the Town and Country Planning Act
1959, which were the predecessors to section 192 to section 196. The point at
issue was an attempt by the council to introduce, at the hearing by the Lands
Tribunal, a new ground of objection which had not been contained in their
objection notice at the time of the reference to the Lands Tribunal. The
question was tried as a preliminary issue. Turning to the speech of Lord Reid
at p 819, his lordship refers to the contention of the council that it was open
to them to challenge the validity of the blight notice although no reference
was made to this in their objection notice, and said:
In my
judgment, this was a complete misapprehension. In the first place, it would go
far to nullify the elaborate provisions of section 40. Why should that section
provide that the counternotice must specify the grounds of objection to the
notice and in the case of ground (e) must further specify the reasons, if it is
to be open to the authority to disregard these requirements and make a case
under ground (e) before the tribunal without even mentioning it in the
counternotice? What is referred to the
tribunal is not the validity of the notice but the validity of the objection in
the counternotice. Any other view would be inconsistent with the provisions of
section 41(4). There ‘the objection’ must be referring back to ‘the objection
specified in the counternotice’ in subsection (2), and if that objection is not
upheld the tribunal is expressly directed to declare the notice valid.
At p 835 Lord
Devlin:
I do not think
it can be disputed that service of a counternotice is an essential preliminary
to the inquiry. But there was here a counternotice, and if that is all that is
needed, the court can inquire into the validity of the purchase notice. I do
not think, with respect, that it can be right on any view to declare on a
preliminary point of law the purchase notice to be valid before the grounds of
objection in the counternotice have been considered, but that is a matter which
could be put right in the form of an answer to the question if it is to be
answered.
Then, omitting
a short passage, Lord Devlin goes on at p 836:
But on the
whole I have reached the conclusion that the inquiry is limited to the grounds
set out in the objection. I appreciate that it is only the objection that is
referred to the tribunal and not any of the grounds and that section 40(3),
which says that grounds must be specified, might, taken by itself, be construed
as a provision requiring particulars to be given and not as one prescribing boundaries.
But when the statute requires ‘the objection to be referred’ to the tribunal, I
think it must mean the contents of the objection; there is more in that phrase
than a provision that the fact of the objection is to initiate the inquiry.
This construction is strengthened by the requirement in the next subsection
that the tribunal shall consider ‘the grounds of the objection specified in the
counternotice’; there must there be an implied prohibition against considering
any grounds that are not specified. I appreciate that the tribunal is to
consider also ‘the matters set out in the notice served by the claimant’; but
here again, if this were to be treated as a permission to consider claims that
were not challenged, there would be no point in making provision for them to be
challenged by the counternotice.
In the case of
Cedar Holdings Ltd v Walsall Metropolitan Borough Council (1979)
38 P&CR 715, Mr Wellings QC, who had also heard the Louisville case,
reverted to the question of the material date for consideration of the
objections, as well as the speeches in the Essex case. He confirmed his
view that for the purposes of the Lands Tribunal the material date was the date
of the objection notice.
The position
therefore is that authority is limited to the decision in the Essex
case, which was on a different statute and different words, and a somewhat
tentative approach, albeit a consistent one, by the Lands Tribunal on this
important matter. I have come to the conclusion that the tentative view
expressed by the Lands Tribunal was right, and that subject to one reservation
mentioned subsequently, the date in relation to which the tribunal must
consider whether the council have established an objection under section
194(2)(b) must be the date of the objection notice.
The applicant
relied on the provisions of subsection (2)(a), that being a matter which
related to the status of the land in which the interest was held by the
applicant, which the applicant contended must relate back to the date of the
blight notice. I do not find it necessary to decide this point as a result of
the conclusion I have reached in relation to the second issue. It does not
arise, because the council accept that at the date of the blight notice the
land fell within section 192(1)(a), because they agree that the appropriate
steps to amend the structure plan — that is, to amend the town map of 1972 —
had not been taken to change the formal planning status of the land, and that
therefore it was not open to them to raise an objection under section
194(2)(a). The applicant contended that they had to do this before they could
raise an objection under section 194(2)(b). I regret that I cannot accede to
the applicant’s contentions in this respect.
In my opinion
the council are correct in contending that for the purposes of this appeal the
date of the objection notice is the material date.
I would add
one qualification. During argument mention was made of the provisions of the
Landlord and Tenant Act with reference to the right of the landlord to serve a
counternotice in certain circumstances, in which case it is well-established
law that the material date is not the date of the counternotice but the date of
the hearing. This may well arise in a case in which the critical decision lies
between the date of the objection to the blight notice and the date on which
the tribunal determines the matter. This does not arise in this case; nor has
the matter been fully argued before us. It is sufficient for me to hold that
the earliest material date for the purposes of this appeal is the date of the
objection notice. Nothing in this judgment should be taken to exclude the
possibility of contending, in an appropriate case, that the material date might
even be postponed to the date of the hearing by the tribunal.
I now turn to
the applicant’s second point. He relies upon the words ‘(unless compelled to do
so by virtue of these provisions)’, which appear in at least three of the
subparagraphs of section 194(2). The applicant referred to the definition of
‘these provisions’ in subsection (6) of section 192, to which I have already
referred. If I understand his submission correctly, he submitted that as long
as the council have not successfully raised an objection under section 194(2)(a)
— in other words, that they have not shown that the land no longer falls within
section 192(1)(a) — they are compelled to acquire under ‘these provisions’ and
therefore cannot rely, for the purposes of subsection (2)(b) of section 194,
because they are compelled to acquire under the provisions of sections 192 to
207 (as amended). The applicant further relied on the speeches in the Essex
case, which make it clear that unless an objecting authority set out the
sections under which they raise objection in their counternotice, they will not
be allowed to rely upon those grounds. Therefore, submitted the applicant, the
objection notice was invalid, because it did not set out among its objections
an objection under section 194(2)(a). In fact, I believe that the applicant had
not appreciated that the council were not asserting that the land in which he
had his interest did not remain of a specified description within section 192.
But that was conceded at the trial.
It is
necessary to mention shortly a few sections of the 1973 Act. Section 68(1)
extended the ambit of subsection (1)(a) of section 192 of the 1971 Act to
proposed amendments to the structure plan. Subsection (1) includes in paragraph
(a) of section 192(1) references to where variations had been submitted to the
Secretary of State for approval, proposals for alterations to the structure
plan which had been submitted and modifications to be made by the Secretary of
State to any such plan. The purpose was to protect an owner of an interest in
land in which steps had been taken to alter the plan and the structure plan
which would affect the owner, but which did not then form part of the structure
plan. In such cases the owner would suffer blight but not be able to recover
for it or serve a blight notice because the formal amendment to the structure
plan had not been achieved. It is helpful to notice, however, that the mere
passing of a resolution would not be sufficient for the purposes of section 68
of the Act of 1973; nor does that section refer in any way to the reverse
process; that is, the passing of a resolution which has the effect of removing
a user from the structure plan which causes the blight. Section 68 relates to
the onset of blight arising out of a planning resolution which had become
formalised to the extent of being submitted for approval to the Secretary of
State or some such equivalent. It is clear that resolutions of the kind passed
in this case by the council would not qualify under section 68 of the 1973 Act.
Subsection (6)
provides, where the approval materialises, that an authority can serve a second
counternotice the grounds of which will be related to events which have
occurred since the original blight notice; so that references to that would
support the date of the objection notice as being the material date, and it is
this section to which I was referring earlier in this judgment when dealing
with the first ground of the appeal.
Section 71
does deal with ordinary resolutions of a local planning authority in connection
with its exercise of their powers under Part III of the Act, but these are
included as a separate subsection of section 192 as being their own specified
description and are specifically excluded from subparagraph (a) of section
192(1), which confirms again that the passing of a resolution for the purposes
of section 194 would not be sufficient to support an objection under subsection
(1)(a).
The only other
sections of the 1973 Act to which I refer, but do not quote, are section 73,
which relates to areas declared as clearance areas under section 42 of the
Housing Act 1957, and section 76, which relates to new street orders under
section 188 of the Highways Act 1980. The 1973 Act specifically withdraws
grounds 194(2)(b) and (c) as being grounds upon which a planning authority can
raise an objection in a counternotice in these particular circumstances.
Although these provisions are subsequent to the 1971 Act, they, among others,
would be occasions upon which a planning authority would be compelled to
acquire land of a specified description under the provisions.
The applicant
relied upon the words ‘unless otherwise compelled’ to take the consideration
back to subsection (1)(a) of section 192; he submitted that those words can
mean nothing else. Mr Kingston was unable to point to any subsequent provision
of the 1971 Act in which those words would be specifically operative.
I confess that
until I had recourse to the 1973 Act, those words appeared to give some
difficulty. It may be that they were inserted to take into account the council’s
position if the Lands Tribunal upheld the validity of the blight notice, in
which case the council would be compelled to acquire, or that they might be
compelled by some other statutory provision anticipatory of the sections of the
1973 Act to which I have referred. I have no doubt, however, that they cannot
have been included in the section for the reason suggested by the applicant. If
the council can establish an objection under section 194(2)(a), they would have
no need to do so under section 194(2)(b), which would then become mere
surplusage if as a condition precedent to succeeding under (2)(b) the council
had to establish (2)(a).
Finally, the
applicant referred to his third ground, which I have described as ‘hardship’.
It has found its way into at least one report (Duke of Wellington Social
Club and Institute Ltd v Blyth Borough Council (supra)), and also
into a commentary to section 195, in paragraph 2/1347 by the learned editor of
the Encyclopedia of Planning Law and Practice. Hardship was also considered
in Rawson v Ministry of Health (1966) 17 P&CR 239.
Shortly, the
applicant relies upon the extracts from the tribunal’s decision which I have
already cited, and the overall history, which is related earlier in this
judgment. He also relied upon circular 46/70 from the Ministry of Housing and
Local Government and the Welsh Office, to which he referred in his notice and
correspondence. It is not necessary to go in detail into that circular; it is
attached to the case stated. I hope it is fair to summarise the purpose of that
circular by saying that it was recognised by the Minister of State that the
statutory provisions existing in 1970 were not sufficient adequately to protect
owners of interests suffering damage from planning blight. The circular invited
planning authorities to take voluntary action to mitigate hardship being
suffered.
The reference
to a circular of this kind — at all events to this circular — has two
objections. Firstly, it has no statutory authority of any sort. But secondly,
the points made in the circular, circular 46/70, were the basis of the amending
provisions, some of which I have already mentioned, in the 1973 Act. It may
well be that before the 1973 Act, hardship of the sort to which reference is
made in the circular was indeed already being suffered by the applicant, but
apart from the negotiations to which reference has already been made, nothing
arose out of it and, as I have already said, there are no provisions for
retrospective compensation under this legislation.
In the case of
Duke of Wellington Social Club and Institute Ltd v Blyth Borough
Council the claimants served a notice on the authority, requiring purchase
of their interest in their former club premises, the land having been
designated by the development plan as subject to compulsory acquisition. The
council served a notice of objection on the ground that unless compelled to do
so they did not propose to acquire any part of the hereditament and the onus of
proof that that objection was well founded was on the council. The tribunal
considered the evidence as to the acquisition of land in the neighbourhood by
the Blyth Docks & Shipbuilding Co Ltd, and as to refusal of planning
permission in May 1962 when the council had said it was intended that the land
should be used for shipbuilding purposes, and decided that the council had not
established that its objection to the notice requiring it to acquire the land
was a reasonable objection. Accordingly the tribunal upheld the notice
and under section 141 directed that notice to treat be deemed to be served.
At p216 the
decision reads as follows:
The onus is on
the council to prove to me that their objection was reasonable. I find it
unreasonable, though not necessarily illogical, that the council should deny
planning permission in May 1962 on the grounds that the land concerned was
designated as subject to compulsory acquisition, and then in July 1963 object
to the notice to purchase because, it says, as local and might-be acquiring
authority and not as agent for the planning authority, it does not propose to
acquire any part of the hereditament in the exercise of any relevant powers.
The docks company clearly do not need its help in this instance, despite the
designation, and consequently it is prepared to let the area stagnate and the
hardship of sterility flowing from designation, and within its power to
relieve, continue indefinitely until such time as the docks company may feel
inclined to proceed with the scheduled development. In essence the corporation
objection on the grounds stated implies that as local authority it would wish
to have the designation label removed from this land — although as mere agents
for the planning authority, it cannot itself remove it — because the
stranglehold the docks company have on the area appears in practice sufficient
to preserve it for those planned purposes.
The relevant
sections of the 1959 Act as re-enacted in 1962 would appear to have been
designed to remove just this sort of hardship when properly substantiated. The
club have prudently provided their new premises before being forcibly removed.
The docks company may have been justified in refusing to negotiate and to
acquire the site thus made available, but the wording of the written statement
accompanying the town map, in which the docks company’s interest in this area
had so clearly been held paramount, implies that the docks company on their
part were expected to ‘continue to acquire sites by negotiation where this is
possible’. Admittedly the schemes of the docks company were not being held up
and so the primary reason for the provision of compulsory powers did not arise,
but this does not detract from the soundness of the club’s case that they are
suffering genuine hardship from the blight which, on the evidence, I consider has
been cast on this area or rendered more devastating by the designation for
compulsory acquisition for shipbuilding purposes, and that sale for any other
activity is precluded, except at a greatly reduced price.
The council
have failed to satisfy me that its objection to the notice of June 12 1963
requiring it to purchase the club’s interests in the land and premises in Burt
Street is a reasonable objection, and the notice is upheld.
That decision
relates to the reasonableness of the objection raised in the counternotice
under the provisions of the 1962 Act. In the note to section 195 in The
Encyclopedia of Planning Law and Practice reference is made to this
decision in these terms:
Where the
objection is to the effect that the local authority does not intend to acquire
the land in question, or some part of it, compulsorily, or any part within the
next 15 years, such objection will only be upheld if it is shown to be well
founded to the satisfaction of the Lands Tribunal.
I pause to
interpolate that that sentence sets out the true test as set out in section
195.
Then reference
is made to the Duke of Wellington Social Club and Institute Ltd case,
and the note continues:
The Lands
Tribunal held that they should have regard to whether upholding the authority’s
objection will result in hardship and apply the test of reasonableness. But in
view of the terms of subsection (3) of this section, it may be doubted whether
the tribunal have any such discretion to reject the authority’s objection that
they do not propose to acquire any reasonable hereditament if it is established
that this is in effect the position.
Reference is
then made to Rawson’s case, to which I have already referred. I share
the hesitation in the comment made by the learned author, without reference to
the section which was relevant to the decision in the Duke of Wellington
Social Club and Institute Ltd case. The words ‘hardship’ or
‘reasonableness’ are not found in any provision in section 195, which is the
section giving jurisdiction to the Lands Tribunal. Of course, the whole object
of these provisions is to relieve hardship, but the hardship which qualifies
for relief is defined quite clearly under the various statutory provisions to
which I have already referred. There is no mention in the section, as the
learned editor remarks, of either discretion or the mitigation of a decision
which otherwise follows from the statutory provision because of hardship, other
than the hardship specifically provided for in those subsections. If either the
comment, or indeed the decision, in the Duke of Wellington Social Club
case were to be relied upon to import into the considerations of the tribunal
any element of discretion or hardship, in my judgment this would not be a
proper execution of their functions under section 195.
I now revert
to the four questions in the case stated. I would answer the first question in
the negative. The second question, for the reasons just given, I would answer
in the affirmative with the comment that the authority’s intention to rezone
the land was relevant to section 194(2)(b). The third question is a little
ambiguous, and in my judgment is not critical to the issues between the
parties. Decisions of the tribunal prior to the passing of the 1971 Act can
only be relevant if the particular provisions to which they relate can be
equated in some way to the provisions of the 1971 Act. In any event, in my
judgment the decisions of another tribunal would not be binding upon the
tribunal in question, although of course consistency in decision as between one
tribunal and another is to be aimed at and is of course of great importance
from the public policy point of view of achieving consistency. But I feel that
this question cannot be answered in any more definitive manner than this.
So far as the
last question is concerned, again I would answer this in the negative. In the
passage from the decision to which I have referred, the decision of the
tribunal to ignore the effect of what was described as non-statutory planning
blight was correct.
In my judgment
the result of those answers means that this appeal must be dismissed.
Agreeing that
the appeal must be dismissed, STEPHENSON LJ said: I think that there was no
error in law by the member of the tribunal in deciding that the relevant date
for considering the matters set out in the notice and the counternotice was the
date of the counternotice. For the reasons given by my lord, Purchas LJ, I,
too, would answer the first question in the negative, and so would I also
answer the third question; I do not think there was any error in law in the
tribunal’s following previous decisions made prior to the passing of the 1971
Act. It seems to me that although, as my lord has said, those decisions were
not binding, the views expressed by the learned member of the tribunal, Mr
Wellings QC in the Louisville v Basingstoke case and the Cedar
Holdings case, the report of which is to be found in (1979) 38 P&CR
715, were correct.
As to the
second and fourth questions, I think that the tribunal was misled by
observations made in the Duke of Wellington case and in Rawson’s
case with regard to hardship. I regard hardship, and the alleviation of
hardship, as quite irrelevant to the question of the validity of the objections
in the objection notice. The duty of the tribunal is, as the House of Lords
laid down in the Essex case, to consider the counternotice and the validity of
its objections, and if those objections are valid, whatever the hardship to the
applicant, the tribunal must say so and invalidate the blight notice. No
question of the reasonableness of a respondent council’s decision, or of any
discretion in it, arises; either the objection is good or it is not, and if it
is good, the tribunal must say so.
Therefore, I
think that the tribunal did fall into error in considering hardship and
alleviation of hardship at all.
I agree that,
in spite of the hardship to the applicant in this case, and in spite of the
care and courtesy with which he has presented his appeal, it must be dismissed.
GRIFFITHS LJ
agreed that for the reasons given by Stephenson LJ the appeal must be
dismissed.
The appeal
was dismissed with costs.
