Agricultural holding–Validity of notices to quit served for development purposes–A landlord does not ‘obtain’ planning permission if he already has it–A landlord at law does not ‘obtain’ planning permission when the owner in equity, for whom he is a bare trustee, obtains it, and this is so even though the permission enures for his benefit–‘Specified purpose’ in section 23 (1) (b) of the Act of 1948 does not mean that the landlord has to declare a particular purpose in his notice–County court case of Dow Agro-chemicals Ltd v E A Lane (North Lynn) Ltd (1965) 192 EG 737 considered and approved–Further points discussed, notably the construction of section 31 of the 1948 Act (notices to quit parts of holdings)–Tenant’s appeal succeeds
This was an
appeal by Paddock Investments Ltd from a judgment of Goulding J in the Chancery
Division on January 28 1975 refusing to declare valid three out of five notices
to quit served on the respondent, Mr Paul Lory, on December 7 1972 requiring
him to vacate certain parcels of agricultural land at Chalfont St Peter,
Buckinghamshire. By cross-notice, the respondent appealed against Goulding J’s
finding in favour of the validity of the remaining two notices to quit.
Mr M Nourse QC
and Mr M Barnes (instructed by Ashurst, Morris, Crisp & Co) appeared for
the appellants, and Mr J T Plume (instructed by Robbins, Olivey & Lake,
agents for Burges, Salmon & Co, of Bristol) represented the respondent.
Giving the
first judgment, GOFF LJ said: This is a dispute between the landlords and the
tenant, a Mr Lory, under a lease of about 256 acres of agricultural property at
Chalfont St Peter in the counties of Buckingham and Hertford. The question,
shortly stated, is whether the landlords have served an effective notice or
notices to quit three separate parcels of land forming part of the demised
premises, and it has given rise to many different problems. The three pieces
have been conveniently described as the ‘red land,’ the ‘blue land’ and the
‘green land.’ The red land is approximately
two acres in area and situated adjacent to Warren Farm. The blue land is rather
smaller, approximately 1.5 acres, and is adjacent to Warren Farm Cottages. The
green land is some 52 acres to the east of the other two plots.
The lease,
which is dated May 30 1962, was made between the plaintiffs and the defendant
and was for a term of seven years from September 29 1961. It therefore expired
on September 28 1968, but it was continued by virtue of section 3 (1) of the
Agricultural Holdings Act 1948 as a yearly tenancy on the same terms and
conditions so far as applicable. It contained a power, on which most of the
questions turn, for the landlords to resume possession of any portion of the
farm in the circumstances mentioned in the relevant clause, which is clause 1
(c), and which I now read so far as material:
Power to the
landlord if he obtains the necessary planning permission at any time or times
upon giving the tenant at least two months’ notice to resume possession of and
to determine the tenancy of any portion of the farm for the purpose of
development only under the Agricultural Holdings Act 1948 on allowing a
proportionate reduction in rent and also making full compensation for any
damage caused and for any crop destroyed; provided that such notice shall not
terminate the tenancy hereby created except in regard to the land so taken.
The tenant’s
covenants include the following, in clause 2 (d):
Not at any
time to oppose the landlord’s application for planning permission to develop
any part of the premises in accordance with the provisions of the Agricultural
Holdings Act 1948.
There was at
the time an outstanding planning permission for the green land for the purpose
of quarrying and extension of pit area. That had been obtained as long
previously as June 20 1945. At some stage (I am not certain when, save that it
was before the planning permissions which I am about to mention), the
plaintiffs contracted to sell their estate to Shonleigh Nominees Ltd, who paid
the whole of the price but did not take a conveyance. At all material times,
therefore, the plaintiffs were bare trustees for Shonleigh. Warren Farm was
disused, and the plaintiffs, or Shonleigh, wished to restore and renovate the
buildings and turn them into a large private dwelling-house, with a
swimming-pool, changing-room, games-room and well-laid-out gardens, and for
this purpose they wished to recover the red land, which includes two of the
buildings, so as to incorporate, at all events, the land as a kitchen garden.
They were also engaged in renovating Warren Farm Cottages, for which purpose
they required the blue land for garden or domestic use. Planning permission
with respect to Warren Farm was obtained by Shonleigh on June 15 1972, and with
respect to Warren Farm Cottages on June 3 1971, both, of course, after the date
of the lease. I have expressed that in those rather general terms because a
number of the questions turn on the ambit and extent of those two
last-mentioned planning permissions. The plaintiffs also wished to recover possession
of the green land in order to implement the 1945 quarrying permission.
In these
circumstances, they served five notices. No 1 related to the red land and no 2
to the blue. They were both dated December 7 1972, and served under clause 1
(c) of the lease. They complied in point of time with that clause, but they
were not year’s notices. As an alternative, in case those notices might be
invalid, the plaintiffs served at the same time notices 3 and 4 under section
31 of the Act, these being sufficient in point of time on any showing; and they
also served on that same December 7 1972 notice no 5, being short notice under
clause 1 (c) in respect of the green land. The defendant served a counternotice
under section 24 of the Act, so that none of the notices could take effect
without the consent of the agricultural land tribunal (see section 24 (1))
unless the case fell within section 24 (2), which again involves showing a
valid and sufficient planning permission, which is disputed. The question under
section 24 has been withdrawn from the jurisdiction of the High Court and can
only be determined by the agricultural land tribunal, but this court can and
must determine the question for the purposes of seeing whether notices 1, 2 and
5 do or do not fall within clause 1 (c).
That being the
position, the plaintiffs were faced with the problem whether they should go
first to the agricultural land tribunal or seek declaratory relief in the High
Court. They decided it would be better to apply first to the court, feeling no
doubt that the tribunal, though not bound, would probably follow any decision
of the High Court on a relevant question of law. The case came before Goulding
J, who decided to entertain it, though nothing but declaratory relief could be
sought. The counternotice raised 11 separate objections, each applying to all,
some or one of the notices. The learned judge gave his judgment on November 5
1974, in which he dealt with each objection separately and in order, and then
summarised the overall result, which upheld some of the objections and rejected
others. By notice of appeal the landlords seek to reverse the judgment so far
as the objections were upheld, and by cross-notice of appeal the tenant, Mr
Lory, seeks to do likewise in all cases where his objections were disallowed.
It will, I think, be convenient to deal with this appeal in the same order as
that adopted by the learned judge.
Objection
no 1. It is submitted that clause 1 (c) of the
lease applies only if planning permission be obtained after
was executed. This applies only to the green land. The learned judge upheld
this objection, and I agree with his decision. As it seems to me, the tenant
would not be likely to search, either in accordance with any general practice
or, as was suggested, to get an idea of the planning authority’s views. In any
case, planning permission so old as 1945 would not tell him very much in that
respect. If, therefore, one construes the words of the clause strictly as words
of futurity the tenant must have notice, whereas otherwise he would not, or
very well might not, know anything about the planning permission, and I do not
regard that as minimal, despite the covenant not to oppose any application by
the landlords. Moreover, if the tenant is only liable to be attacked by virtue
of a future planning permission, then it might not be granted at all, or only
after long delay, if there were a public inquiry, and particularly if there
were an appeal. In any case, there would be some delay of which he would have
the benefit, particularly if the application was not already prepared by the
date of the lease. If, on the other hand, one includes planning permission
already obtained, then the landlords could serve notice to quit the day after
the lease was executed and, apart from any other objection, oust the tenant in
two months.
Objection
no 2. It is argued that the landlords must apply
for and obtain the planning permission themselves. This applies to all three
parcels of land, but only notices nos 1 and 2 so far as the red and blue land
is concerned. The learned judge upheld this objection, and again I agree with
his decision. As to the red and blue land, the application was made, as I have
said, by Shonleigh. The definition of ‘landlord’ in the lease includes ‘the
persons for the time being entitled in reversion immediately expectant on the
tenancy hereby created,’ but I am satisfied that that does not comprehend a
person entitled (even absolutely) in equity only. Much stress was laid by the
plaintiffs upon the relationship of trustee and cestui que trust between
the plaintiffs and Shonleigh, but in my judgment the plaintiffs as trustees
could not claim the benefit of something obtained by their beneficiary. It
would be easier if it were the other way round. The learned judge described the
point as ‘technical,’ and so it is, but in my judgment none the less sound.
Therefore, in my view, even in the case of the red and the blue land, and, of
course, in the case of the green, the person who actually applied and got
planning permission was not the landlord. However, under the Town and Country
Planning Act 1971, section 33, the permission enured in all three cases for the
benefit of the landlords. The question then becomes, what does ‘obtains’ mean
in clause 1 (c)? It seems to me that
there are two possible constructions: either ‘go out and get it for yourself,
acting if need be by agents,’ or ‘receive the benefit of something which
another has got.’ As Stephenson LJ put
it in argument, ‘applies for and obtains planning permission,’ or ‘acquires and
obtains the benefit of a planning permission.’
My view is
that the narrower construction, namely, that the landlord must obtain it for
himself, is the correct one. My first reason for that is one of general
impression. That is how it struck me on reading the lease, and how it continues
to strike me having heard all the arguments one way and the other. My second
reason is that in my judgment clause 2 (d), which the plaintiffs relied upon as
a context supporting their construction, is not really in their favour, but
rather against them. The point taken is, of course, that in clause 1 (c) it
refers to ‘obtains,’ whereas in clause 2 (d) it refers to ‘the landlord’s
application.’ But as it seems to me, the
fact that the tenant was required to covenant not to oppose the landlord’s
application, which is the correlative of the power in clause 1 (c), shows that
what the parties were contemplating was an application made by the landlord and
not a benefit accruing to the landlord from an application made by somebody
else. The third reason is this, that in any case, as I see it, the highest at
which the plaintiffs can put this part of the case is that there is an
ambiguity. Now this is not a reservation strictly so called, to which different
considerations would apply. It is a power or privilege granted to the landlord,
and in my judgment, in the event of ambiguity it must be construed against the
landlord on the principle of contra proferentes.
Objection
no 3. The submission on this objection is that the
power reserved to the landlords is void for uncertainty, because one cannot
determine what is the meaning of ‘for the purposes of development only under
the Agricultural Holdings Act 1948.’
That again applies to the red and the blue land (notices nos 1 and 2
only) and to the green land. The learned judge overruled that objection, and
for my part I would agree with him. Mr Plume points out that in a sense the
Agricultural Holdings Act does not provide for ‘development’ or define
‘development.’ There are references,
notably in section 23 (1) (b), section 24 (2) (b), section 25 (1) (e) and
section 31, to user which is development, but which he says is not ‘development
under the Act.’ There is, of course,
force in that argument, but ‘void for uncertainty’ is rather a counsel of
despair, and I think one can give a meaning to this not very felicitous
language. I think it means ‘for the purpose of any non-agricultural user.’ That is a paraphrase, but I prefer it to
invalidity.
Objection
no 4. That being so, I then pass to the fourth
objection which is that even if the clause be valid, still, short notice is bad
unless the case falls within section 23 (1) (b) of the Act [ie the notice is
‘given in pursuance of a provision in the contract of tenancy authorising the
resumption of possession . . . for some specified purpose other than the use of
the land for agriculture’–Ed]. The learned judge held that this was a bad
objection, and I would agree with him, though not perhaps for precisely the
same reason. He said that at p 7 of the judgment:
Mr Plume
relies on the word ‘specified.’ By
virtue of the Interpretation Act 1889 the words ‘specified purpose’ must in my
judgment be read as specified purpose or purposes. If I am to specify a member
or members of a genus, I can do so by naming one or some or all of the species
included in the genus. In the limiting case of all species, the enumeration of
them nominatim, or on the other hand the use of the word ‘all,’ have
exactly the same significance. A power to resume possession for all
non-agricultural purposes is therefore in my judgment a power to resume
possession for specified non-agricultural purposes within the saving provision
of section 23 of the Act of 1948. The word ‘specified’ in the section is not
otiose, for it requires the landlord to define exactly the purposes within the
reserved power.
Quite apart
from the Interpretation Act, and certainly with its aid, I think ‘some
specified purpose’ must mean ‘one or more specified purposes.’ Then the plaintiffs argue that one can
specify all possible classes, no matter how many, provided they can be
sufficiently identified; and they say the classes are sufficiently identified
by the Town and Country Planning (Use Classes) Order. The lease does not, of
course, refer to that order in terms, but that, the plaintiffs submit, is in
effect what it says once one construes it as ‘any purpose other than
agricultural user.’ In support of their
argument the plaintiffs relied upon certain passages in the judgment of Asquith
J in the case of McMorran v A E Marrison (Contractors) Ltd [1944]
2 All ER 448, and particularly at p 450, just above the letter H:
What is
argued is that before a person can be said to be ‘specified,’ the order
requires the Minister to specify either the person or a class or description of
persons; that specifying persons, as distinct from a class or description,
necessarily imports giving their names; that specifying a class or description
necessarily involves specifying a type of worker, such as ‘all bricklayers’ or
‘all carpenters,’ and as the list in this notice does neither of those things
precisely, there has been no valid specification and the order does not apply.
I dissent from this argument. Persons
unambiguously identified, but in any case there was here, as I hold, a valid
specification of a class of persons employed on the site.
Mr Plume seeks
to distinguish that case. He says that it was dealing with specifying a class.
It certainly was a different context and not precisely the same point, but I
think that considerable assistance is derived from the observation, ‘persons can,
in my view, be specified without being nominated, provided they are
unambiguously identified.’ So, too, it
seems to me, may ‘purposes.’
Then we were
referred to a decision of His Honour Judge Carey Evans in the county court in Dow
Agrochemicals Ltd v E A Lane (North Lynn) Ltd [(1965) 192 EG 737],
in which the learned judge said ‘that on the first question he had come to the
conclusion that a provision authorising resumption for any non-agricultural
purpose came within proviso (b) to section 23 (1) of the 1948 Act, the purpose
being ‘specified’.’ That case is exactly
in point and indistinguishable, and all we have to consider is whether it be
right or wrong. In arriving at that conclusion the learned judge drew guidance
from the case to which I have already referred, and for the reasons which I
have given, I do not think that he erred in drawing guidance from that source
or in the way in which he followed the guidance offered to him. In my judgment,
that case was rightly decided and should be applied to this case. Mr Plume was
constrained to concede that one could specify the classes of user enumerated in
the use classes order and that that would be a specification, provided there
were not too many. Once one gets that far, however, it is impossible to say
where to draw the line. One has got to bring in ‘a reasonable number,’ and I
see no justification for doing that. In my judgment, therefore, this wide
provision embracing all non-agricultural purposes is capable of being
identified by reference to the use classes order and so falls within the ambit
of section 23 (1) (b). The learned judge said on p 7 of the judgment, between
letters D and E: ‘The word ‘specified’ in the section is not otiose, for it
requires the landlord to define exactly the purposes within the reserved
power.’ If that means that that is
something he must do in his notice, I could not adopt that line of reasoning,
but if it means that he must specify in the contract of tenancy the purpose to
which his power will apply, then, in my judgment, it is right, and for the
reasons which I have given, that is what he did.
Objection
no 5. The next objection is that the landlord must
have a sufficient intention to carry out the purpose in respect of which his
notice is given. That originally applied to the red and the blue land (notices
nos 1 and 2 only), but that was abandoned. It remained a live issue as to the
green land, as to which the learned judge upheld the objection, but, in my
respectful view, that was incorrect. The learned judge himself admitted that
his mind had fluctuated, although in the end he did come down against the
landlords. He said at p 8:
As to notice
no 5, my mind has fluctuated during the argument. On the whole, reading the
somewhat jejune evidence which has been filed, and bearing in mind the large
area of land of which it is sought to resume possession as a single unit, I am
of opinion that the plaintiff company has in that case failed to demonstrate
the necessary intention.
That mentions
only notice no 5, but the learned judge was there dealing in relation to that
notice with objection no 5. In my judgment, the test is, has the landlord a
bona fide intention, and has he a reasonable prospect of carrying it out? (See Jones v Gates [1954] 1 WLR
222.) The evidence was certainly meagre.
It is to be found in the affidavit of Mr Pelham, in which he says he is a
director of Henry Pelham & Partners, and goes on to say in paragraph 2:
I have long
been aware that a part of the farm has the benefit of a planning permission for
the working of gravel dated June 20 1945. The plaintiffs have been anxious for
some time to proceed with the extraction of gravel in accordance with that
permission and to obtain possession of the relevant part of the farm to enable
the extraction works to be carried out. In 1972 I carried out negotiations with
Redland Inns Ltd, a firm of gravel operators, who were interested in working
the gravel on the farm and paying a royalty to the owners on all minerals
extracted. At the same time I instructed J R Eve & Son, surveyors, of
Bedford, to negotiate with the defendant to secure possession of the area
subject to the permission of 1945. That firm also negotiated with the defendant
to try to obtain possession of the area of the farm needed for garden land in
accordance with the planning permissions of June 3 1971 and June 15 1972. These
negotiations with the defendant were not successful, and consequently no
agreement was then concluded with Redland Inns Ltd. Accordingly no 5 notice to
quit was served on the defendant on December 7 1972 in order to obtain
possession of the land the subject of the planning permission in 1945 for the
purpose of proceeding with the gravel extraction.
3. I am
currently negotiating on behalf of the plaintiffs with Richard Biffa Ltd, a
firm of gravel merchants operating in the area of Warren Farm. As soon as
possession of the requisite area of the land is obtained the plaintiffs intend
to commence the extraction of gravel on a royalty basis under contract with
Richard Biffa Ltd or some other firm. If satisfactory terms as to royalties
cannot be achieved (and I do not foresee any difficulty) the plaintiffs would
in the last resort sell the land for gravel-working. The plaintiffs have been
advised that by virtue of the Acts and regulations dealing with town and
country planning the said permission of 1945 may be operated at any time until
April 1 1979.
The plaintiffs
might certainly have obtained evidence from an officer or employee of the
company, Richard Biffa Ltd, saying that they saw no difficulty at all; or they
could have adduced some evidence about the state of progress of the
negotiations, and in particular what, if anything, had so far been suggested as
to a scale of royalties. It must be remembered, however, that this evidence was
not challenged–there was no cross-examination upon it–and it shows that the
landlords tried to get possession by agreement, and negotiations they then had
in hand proved abortive because they could not secure possession. Then after
some unexplained delay we find them again in current negotiations. There is
certainly nothing to suggest that they will not succeed. On this evidence, in
my judgment, the bona fides of the landlords are not open to question. The only
question is, have they a reasonable prospect of success? On such meagre evidence, and in the absence
of cross-examination, I think one is entitled to accept that evidence at its
face value, that the deponent saw no difficulties. The instant case is
different on its facts from Jones v Gates, where the position was
altogether nebulous. The point was also made that the area is large, and
perhaps larger than might reasonably be required, but in the absence of any
evidence as to how that was regarded by Richard Biffa Ltd, I do not think that
helps one way or the other. They might, of course, say, ‘We do not want 52
acres: that is much too large an initial commitment,’ but they might equally
well say, ‘We must be sure of a large area before we start; we cannot have to
keep giving notices to the tenant and possibly meeting difficulties.’ As I have said, I think the learned judge was
wrong in regarding that evidence as insufficient. I take it at its face value,
and so taken I think it is just enough.
Objection
no 6. The point made here on behalf of the tenant
is that the planning permission relied upon to authorise notice to be given in
respect of the red land and the blue land was not sufficient in that it dealt
only with the buildings and did not authorise change of user for agricultural
use to domestic use. The learned judge drew a distinction between the red and
the blue land. He decided that the planning permission was sufficient to
support the notice no 1, and expressed a corresponding view as to the
alternative notice no 3, but he held that the objection as to the blue land was
a valid objection, and again expressed a corresponding view
application for planning permission for the red land was accompanied by
drawings showing extensively what was proposed, whereas the application in
respect of the blue land had only a site plan. But I have come to the
conclusion that this objection fails as to both. I will deal with the weaker
case, the blue land, because the red is really a fortiori. During the
course of the argument I confess that my mind has fluctuated upon this point,
but I find it quite impossible to distinguish the case of Pilkington v Secretary
of State for the Environment and Others [1974] 1 All ER 283. Further, I see
no grounds for saying that it was wrong and ought to be overruled. It is true
that there the question was not whether the second permission authorised a
change of user but whether it was inconsistent with the first, but that it did
authorise a change of user was, as it seems to me, inherent. Whether at the
date of the second permission the user was as a smallholding is not entirely
clear (though I think it was), but it is certain that bringing it into the
curtilage of the new house and using it as a garden or for other domestic
purposes involved some change of use for which planning permission would be
required. The learned Lord Chief Justice said at p 285, just above letter F,
referring to the second permission:
It describes
the nature of the development as being the erection of a bungalow, and it says
the development is to be carried out in accordance with the application and
plans. When one looks at the appropriate plan in respect of this development
permission, one finds that it was for the erection of a bungalow not on the
part of the land which I will call site A, but in the middle of the land, on
the part which has been referred to as site B. Again it shows the whole
curtilage as being associated with the permission. It therefore shows that the
bungalow permitted to be built will be in the middle of the whole site, and
have the whole site as part of its curtilage.
If after the
second permission had been implemented the local authority had served an
enforcement notice saying that they had given no permission to use the garden,
it must, in my judgment, have failed. In the instant case, even dealing with
the blue land application, the curtilage is shown, and the planning permission
in respect of the blue land, which will be found in exhibit RGAR 3, contained
condition (6): ‘Any existing access within the site frontage shall be closed in
a permanent manner to the county council’s reasonable approval.’ That affected the frontage of the blue land.
Mr Plume sought to distinguish the Pilkington case on the ground that
that was a planning permission to build a new house, whereas the instant case
was an application for permission to restore or alter existing buildings, but
for my part I cannot see that that makes any difference. Counsel also argued
that there were misleading statements in the actual application, and so there
were, but if that has any effect at all, it could only be a ground for revoking
or otherwise attacking the permission, not for what would, in my view, be
misconstruing it.
Objection
no 7. The seventh objection was that there were
irregularities in the way the planning permission was obtained–procedural
irregularities, I would think. However, that was abandoned, and it is not
necessary for me to pursue it any further.
Objection
no 8. The eighth objection is an important one,
because it affects notices nos 3 and 4 with regard to the red and blue land.
The alternative notices, being as to part only of the holding, are bad unless
they fall within the permission given by section 31 of the Act. The plaintiffs
say that they do, and they rely on section 31 (2) (b) of the Act, which refers
to ‘the provision of gardens for farm labourers’ cottages or other
houses.’ I should also read paragraphs
(a) and (c), (a) being, ‘the erection of farm labourers’ cottages or other
houses with or without gardens,’ and (c), ‘the provision of allotments.’ In his judgment, at p 10, dealing with this
matter the learned judge said:
The language
of the section is certainly puzzling. ‘Farm labourers’ cottages or other
houses’ is an unusual and ambiguous expression to use if you mean cottages or
other houses for farm labourers. On the other hand, if the draftsman meant to
provide land for houses generally, why should he refer to farm labourers at
all?
Then he
commented that the origin of the section had been traced back to section 52 of
the Agricultural Holdings (England) Act 1875, and finally he said:
In my view it
was not unnatural in 1875 for a Parliamentary draftsman, instructed to
facilitate the provision of rural housing generally, to refer first to farm
labourers’ cottages as the thing chiefly in mind and then to add words
including all other types of house. I do not find the problem an easy one, but
on the whole I must give section 31 the wider construction. Objection no 8
accordingly also fails.
The question
raised by this objection is a short but not entirely easy one, but I have come
to a clear conclusion that the learned judge was wrong and that this objection
ought to be upheld. First, I think on a balance of probabilities it is the more
likely construction in an Act of this kind, particularly seeing that it had its
origin in 1875. Secondly, as Cairns LJ pointed out in the course of the
argument, it is a fair reading that the possessive ‘farm labourers” governs
all that follows in paragraph (a), ‘cottages or other houses with or without
gardens,’ and in paragraph (b), ‘cottages or other houses.’ Further, I think the context of the 1875 Act
affords considerable assistance. There the provision in section 52 is as
follows:
Where on a
tenancy from year to year a notice to quit is given by the landlord with a view
to the use of land for any of the following purposes: the erection of farm
labourers’ cottages or other houses, with or without gardens; the providing of
gardens to existing farm labourers’ cottages or other houses; the allotment for
labourers of land for gardens or other purposes . . . .
‘Allotment for
labourers’ is clearly limited to a provision to be made for labourers, and I
think that assists one in coming to the conclusion that the two previous
provisions are also being made for farm labourers and not at large. I do not
think the change in the wording of that subsection, so far as allotments is
concerned, by saying in section 31 simply the provision of allotments, which
was a change made no doubt owing to the passing of the Smallholdings Act, ought
to be regarded as showing any change of intention.
Objection
no 9. The learned judge held the ninth objection
valid, and in that conclusion, in my judgment, he was right, though I do not
entirely subscribe to his reasoning. This affects the green land only. The
point is that all that is before the court is the planning consent itself,
which reads, ‘Hereby permit the land situate at Old Shire Land, Chalfont St
Peter, to be used for the purpose of quarrying and extension of pit area.’ On the face of it, there is nothing in that
to identify what is meant by ‘the land.’
It was argued in the court below that this necessarily made the planning
permission void and that the defect could not be cured by extrinsic evidence.
The learned judge did not have to decide that question, because he held that
the actual extrinsic evidence tendered was by its nature inadmissible. We
likewise rejected the evidence, and heard no argument on the question, which
therefore remains entirely open, whether proper extrinsic evidence of identity
would be admissible or whether on the contrary a planning permission which
fails to identify the relevant land is necessarily void. The learned judge
excluded the extrinsic evidence on the ground that the evidence tendered was
direct evidence of intention. He said, referring to a passage in the speech of
Lord Reid in Slough Estates v Slough Borough Council (No 2)
[1971] AC 958 at 962:
I do not
think for one moment that [Lord Reid] meant to admit direct evidence of the
planning authority’s intention as to the subject-matter of the permission. Nor
can I accept Mr Nourse’s suggestion that Lord Reid’s observations do not apply
to a case where the subject-matter is left undefined on the face of the
planning permission.
In my
judgment, assuming but without deciding that evidence to identify the land was
admissible, the plaintiffs failed, first, because the evidence they tendered,
though not direct evidence of intention, was not evidence of identification;
and secondly, because, even if it were, it was altogether insufficient. The
evidence, such as it was, was contained in the affidavit of Mr Massey, at p 44
of bundle B, paragraph 3:
I have
further examined carefully the records of the local planning authority relating
to the said planning permission. I am satisfied subject to any minor boundary
discrepancies owing to the fact that the plan accompanying the application
submitted to the council was not drawn to any stated scale that the whole of
the land edged green on the plan attached to the said notice to quit numbered 5
is within the area covered by the said planning permission of June 20 1945. A
small part of the land edged green is within ordnance survey parcel no 219 and
the said planning permission in addition included the whole of the remainder of
this parcel.
It will be
seen that he did not produce the relevant records from the council or any
extracts from them. He did not produce any correspondence or other documents
from which the court could, if it were satisfied, draw the conclusion that the
land was sufficiently identified. What he did was to give his opinion on the
very question which the court had to decide without bringing the materials for
that decision before the court. In my judgment, that is not evidence of
identification at all, but, as I have said, even if I be wrong on that, it
seems to me to be wholly inadequate to discharge the burden of identifying the
land. I therefore, as I have said, agree with the learned judge on this
objection, but for different reasons.
Objections
nos 10 and 11. In view of the decisions on other
objections, Mr Plume did not press objection no 10, that the terms ‘quarrying
and extension of pit area’ did not authorise obtaining gravel, or no 11, that
because the 1945 planning permission included, in condition no 5 ‘maximum area
of unregulated quarrying area to be not more than five acres,’ the inference
was that there was no present intention to use the 52 acres for the purposes
indicated in the notice. As he did not pursue those, I need not say anything
more about them. I think the result of that is that the learned judge’s summary
at the end of his judgment falls to be amended by deleting no 6 as an objection
to notices nos 2 and 4, but holding notices nos 3 and 4 bad on objection no 8,
and by deleting objection no 5 as an objection to notice no 5.
STEPHENSON LJ:
I am in complete agreement with the judgment of my brother Goff and add only
brief comments on the three objections which troubled me most, objections 3, 4
and 6. Objections 3 and 4 seem to me to have force, but I have concluded,
first, that the phrase in clause 1 (c), ‘for the purpose of development only
under the Agricultural Holdings Act 1948,’ which the learned judge described as
bucolic, but I would call obscure and strained, is equivalent to the clearer
phrase used in the tenancy agreement which was considered in the case of Dow
Agrochemicals to which my Lord has referred, ‘for any purpose not being the
use of the land for agriculture’; and secondly, that the decision in Dow’s
case was right, and clause 1 (c) sufficiently identifies the purpose which
section 23 (1) (b) of the Act requires to be specified.
As to
objection 6, I feel great reluctance in extending by reference to the site plan
(for that, I think, is what is involved) applications which contain such
inconsistent and misleading statements as the applications of April 1971 and
April 1972 which were granted. Paragraph 7 of the printed form on which such
applications had then to be made says: ‘State the purpose for which the land
and/or building are now used, and if used for more than one purpose, give
details.’ In the 1971 application
relating to the blue land all the planning authority got against that was:
‘Pair of cottage [sic] and land.’
Worse still, in the 1972 application relating to the red land all the
planning authority got was the one untrue word, ‘Disused.’ However, I have come to the conclusion that
such statements, whatever their consequences, cannot justify the court in
disregarding the site plans to which the applications refer and which are also
referred to in the permissions granted. For the reasons which have been given
in the judgment of Goff LJ, I reach the same conclusion as he does.
CAIRNS LJ: I,
too, reach the same conclusion as Goff LJ, and I, too, will refer separately
only to a few of the objections. On objection 4, with regard to the meaning of
the word ‘specify,’ I confess that I began with the impression that this
contract for tenancy could not be said to specify purposes; that some
greater particularity was needed than that. I have, however, been assisted in
arriving at a contrary conclusion by the decision of His Honour Judge Carey
Evans in Dow Agrochemicals Ltd v E A Lane (North Lynn) Ltd, a
decision which is, of course, in no way binding upon this court, but was given
by a very experienced county court judge to whose views I would pay respect.
The decision of Asquith J in McMorran v A E Marrison (Contractors)
Ltd, which is not directly in point, points in the same direction. But once
it is accepted, as Mr Plume does accept, that one could not limit this to a
single purpose, it would be a matter of great difficulty to say at what stage
the enumeration of a number of purposes comes out of the description of
‘specify’ into some other description. It appears to me, in the end, that the
purpose of the word ‘specify’ here is not to compel the parties to agree for
the purpose of such a clause in the contract as was envisaged, any single
purpose, or any small number of purposes, but simply to ensure that the lease
shall make it clear whether the power of the landlord to give short notice to
quit is to be based upon one single purpose, or a small number of purposes, or
a large number of purposes, defined either by individual listing or by
description as a class or classes. If that is the right view, then I consider
that the purposes were sufficiently specified in this contract for tenancy.
With regard to
objection no 5, despite the fact that we have reached a different decision from
that of the learned judge upon it, I have never at any time after seeing the
evidence felt any doubt that the right conclusion here was that there was a
bona fide intention to carry out the particular development, with a reasonable
prospect of its being carried out. A ‘reasonable prospect’ obviously would not
mean a certainty. The evidence was that negotiations had taken place in the
past which had broken down, not because of the difficulty of coming to terms,
but because the defendant was unwilling to give up possession of the portion of
land in question. The evidence was, further, that negotiations were at the time
of the hearing being pursued with apparently no expectation of difficulty in
coming to terms. That evidence was not contradicted, and the deponent to the
affidavit was not cross-examined upon it. I see no reason why it should not be
accepted, and the conclusion that I would reach upon it is that there was a
sufficient intention, with a sufficient prospect of success, to satisfy the
court.
With regard to
objection no 6, I cannot in the end find any good reason for drawing the distinction
that the learned judge did between the blue land and the red. In relation to
this matter, my mind has been very much influenced by the decision in the Pilkington
case, which the learned judge did not have the opportunity of considering. That
is a decision on a planning matter by a Divisional Court, whose decision is not
binding upon the Court of Appeal, but to which I would pay the highest respect
having regard to the constitution of the court that gave the decision. Also, it
seems to me to be a reasonable conclusion to reach, and indeed Mr Plume did
not, as I understood his argument, seek to say that the Pilkington
decision was wrong: he sought to distinguish it.
distinction between that case and the present one.
As to
objection no 8, I did not find it at all an easy matter to decide whether the
intention of the paragraph was to refer to ‘cottages or houses for labourers,’
or to refer to ‘cottages for labourers or houses for anybody.’ But, for the reasons which Goff LJ has given,
to which I could not usefully add, I am satisfied that it is intended to refer
only to ‘cottages or houses for labourers.’
I therefore agree that in the result the plaintiffs’ appeal as to
notices 1, 2 and 5 fails and must be dismissed, and the defendant’s
cross-appeal as to notices 3 and 4 must be allowed. The result, I think, will
be that in place of the order made by the learned judge making a declaration in
favour of the plaintiffs as to notices 3 and 4 there should simply be a refusal
of all the declarations that were asked for.
The appeal
was dismissed and the cross-appeal allowed as indicated, with costs for the
defendant in both courts. Leave to appeal to the House of Lords was refused.
