Town and Country Planning Act 1971, section 164 as applied by section 165 — Compensation for abortive expenditure when planning permission granted by development order is withdrawn by direction — Persons entitled to compensation — Agreement between owner of airfield and company formed to promote motor-car and motor-cycle racing for the latter to equip airfield with pits, competitors’ car park, safety fencing, bank for spectators etc — After two trial races local planning authority gave direction under article 4 of Town and Country Planning General Development Order 1973 withdrawing permission for this use of airfield — Whether company entitled to compensation for abortive expenditure under section 164 of 1971 Act as ‘a person interested in the land’ — Planning authority argued that this expression meant some person or body with a proprietary interest in the land, not merely a licence to use it temporarily for a particular purpose — Lands Tribunal accepted this submission — Held by Court of Appeal that the company came within the description of ‘a person interested in the land’ as it had an enforceable right against the owner to use the land in the way now prohibited — Eveleigh and Kerr LJJ accepted the distinction between ‘a person with an interest’ and ‘a person interested,’ while holding that a right to claim under section 164 was not restricted to the former category — Stephenson LJ could not see any difference between a person who has an interest in the land, a person entitled to an interest in it and ‘a person interested in the land’ and regarded the last expression as synonymous with the others — Appeal from Lands Tribunal allowed
This was an
appeal from a decision of the Lands Tribunal (V G Wellings QC) (1981) 258 EG
174, [1981] 1 EGLR 172 that the claimants (the present appellants), Pennine
Raceway Ltd, were not entitled to compensation under section 164 of the Town
and Country Planning Act, as applied by section 165 of the Act, in respect of
abortive expenditure in equipping Crosland Moor Airfield, Huddersfield, for
motor-car and motor-cycle racing. The respondents, Kirklees Metropolitan
Council, as planning authority, had given a direction under article 4 of the
Town and Country Planning General Development Order 1973 which stopped the use
of the airfield for the above use. The appellants incurred a substantial amount
of abortive expenditure. The appellants had no proprietary interest in the
airfield, their rights being derived from an agreement with the owner, a Mr
Witham, which is set out in the judgment of Eveleigh LJ.
John Colyer QC
and Michael Brooke (instructed by Ward Bowie, agents for Booth & Co, of
Leeds) appeared on behalf of the appellants; Alan Fletcher (instructed by the
director of administration, Kirklees Metropolitan Council, Huddersfield)
represented the respondent council.
Giving the
first judgment at the invitation of Stephenson LJ EVELEIGH LJ said: On October
2 1974 a Mr Witham, the owner of Crosland Moor Airfield, Huddersfield, West
Yorkshire, and the appellant company, executed a deed which read as follows:
Whereas it is
agreed as follows:
1. The Owner
hereby grants to the Company sole rights to promote motor and motor cycle
events on the Airfield at Crosland Moor.
2. The Company
shall carry out all works fixtures and fittings necessary for the safeguard of
the public at the Airfield at the Company’s own expense and shall be fully
responsible for all payments as to future maintenance of such fixtures and
fittings or the removal reinstatement or addition to the same.
3. The Company
covenants with the Owner to insure with an Insurance Company to be approved by
the Owner against any claim against the Owner in any way relating to public
liability or otherwise in connection with the events.
4. The
consideration to be paid to the Owner shall be the sum of Five hundred pounds
per meeting except for the first full year which shall be treated as a trial
year and during this year the Owner shall be entitled to receive Thirty per
cent of the net profits of each event from the Company.
5. Upon
ceasing to hold Meetings as detailed above, the Company hereby covenants to
return the Airfield to its previous condition and remove all fixtures and
fittings barriers or otherwise at the Company’s expense. This work shall be
carried out to the satisfaction of the Owner and if dispute shall arise shall
be referred to a single arbitrator to be appointed by the Surveyor for the
Owner whose decision shall be final and binding to all parties.
6. The said
sum of Five hundred pounds per meeting shall be reviewed every five years but
shall never be less than the said sum of Five hundred pounds.
The appellants
thereafter erected about 400 yds of substantial safety barriers which were set
in the ground. They cleared an area of
these places. They moved 3,000 cubic metres of soil and created a bank for
spectators. They attached nylon cable to existing posts in order to provide
fencing.
At that time article
3 of the Town and Country Planning General Development Order 1973 and Class IV,
paragraph 2, of the First Schedule thereto permitted use for:
any purpose
or purposes except as a caravan site on not more than 28 days in total in any
calendar year (of which not more than 14 days in total may be devoted to use
for the purpose of motor car or motor-cycle racing or for the purpose of the
holding of markets), and the erection or placing of moveable structures on the
land for the purposes of that use: Provided that for the purpose of the
limitation imposed on the number of days on which land may be used for motor
car or motor cycle racing, account shall be taken only of those days on which
races are held or practising takes place.
Although two
trial races had taken place before the execution of the deed, no further events
had been held before November 8 1974 when the respondents made a direction
under article 4 of the development order that the use of the airfield for
motor-car or motor-cycle racing should no longer be permitted.
Section 165 of
the Town and Country Planning Act 1971 provides that in such circumstances the
provisions of section 164 of the Act shall apply.
Section 164,
so far as is material, reads:
(1) Where planning permission is revoked or
modified by an order under section 45 of this Act (other than an order which
takes effect by virtue of section 46 of this Act and without being confirmed by
the Secretary of State), then if, on a claim made to the local planning
authority within the time and in the manner prescribed by regulations under
this Act, it is shown that a person interested in the land —
(a) has incurred expenditure in carrying out work
which is rendered abortive by the revocation or modification. . .
The local
planning authority shall pay to that person compensation in respect of that
expenditure, loss or damage.
The
respondents, the local planning authority, denied liability to pay
compensation, on the grounds that the appellants were not ‘a person interested
in the land’. The appellants applied to the Lands Tribunal for determination of
a preliminary point of law, namely whether they were entitled to make a claim
for compensation. The Lands Tribunal held that they were not ‘a person interested
in the land’ and the sole question raised in the stated case is whether that
decision was correct.
For the
respondents it is argued as follows. The phrase ‘a person interested in the
land’ is shorthand for ‘a person having an interest in the land’. The
appellants had only a licence. A licence is not an interest in land. Wood
v Leadbitter (1845) 13 M & W 838 and Hill v Tupper
(1863) 2 H & C 121 were relied upon.
We were
referred to section 18 of the Lands Clauses Consolidation Act 1845 and section
39(1) of the Land Compensation Act 1961 and sections 5 and 10 of the Compulsory
Purchase Act 1965 in support of the submission that for a person to be
interested in land it is necessary to show that that person has a proprietary
interest in the land. Counsel submitted that such an interest must be one of
the interests in land referred to in the Law of Property Act 1925, or at least
it must have the character of a proprietary interest. The appellants’ interest
was only a contractual one. In other words, counsel submits that the phrase has
a technical meaning.
In Maxwell
on Interpretation of Statutes, 12th ed p 28, we read:
The first and
most elementary rule of construction is that it is to be assumed that the words
and phrases of technical legislation are used in their technical meaning if
they have acquired one, and otherwise in their ordinary meaning. . .
It has,
however, not been possible to refer us to a line of authority to show that the
phrase ‘a person interested in the land’ has acquired a technical meaning. The
phrase ‘a person interested in’ is employed quite frequently in legislation in
a wide variety of contexts. For example, the Public Health Act 1875, Section
64, Schedule 5; The Metalliferous Mines Regulations Act 1872, section 313; the
Administration and Probate Act (1958) (Vic), section 15; the Marine Insurance
Act 1906, section 5, and the Law of Property Act 1925, section 84.
As Devlin LJ
said in Bearmans Ltd v Metropolitan Police District Receiver
[1961] 1 WLR 634, at p 655:
The word
‘interested’ is not a word which has any well defined meaning, and anybody who
was asked what it meant would at once want to know the context in which it was
used before he could venture an opinion . . . Just as in ordinary speech one
would require to know the context, so in construing the word in an Act of
Parliament it is essential . . . to look at the scope and purpose of the Act. .
. .
In my opinion,
before turning to other statutes and other cases we should look at the words of
the section itself. We should construe them, if their meaning is not plain, in
accordance with the policy and objects of the statute with which we are
concerned and only then if we are uncertain whether they apply to the facts of
our particular case should we seek help elsewhere. In Barrell v Fordree
[1932] AC 676 Lord Warrington said at p 682:
The safer and
more correct course of dealing with a question of construction is take the
words themselves and arrive if possible at their meaning without, in the first
instance, a reference to cases.
He might have
added ‘without reference to other statutes’.
I appreciate
that light may be thrown on the meaning of a phrase in a statute by reference
to a specific phrase in an earlier statute dealing with the same
subject-matter, and such an aid to construction is permissible where there is
an ambiguity.
Even so we are
unlikely to find much help unless the statute is in pari materia.
In Grieves
v Tofield (1880) 14 Ch D 563 at p 571 James LJ said:
If an Act of
Parliament uses the same language which was used in a former Act of Parliament
referring to the same subject, and passed with the same purpose, and for the
same object, the safe and well known rule of construction is to assume that the
legislature when using well known words upon which there have been well known
decisions use those words in the sense which the decisions have attached to
them.
The
circumstances there referred to do not exist in our case. We are dealing with a
phrase which has not acquired a technical meaning and moreover is one of widely
different capabilities, so that previous legislation or judicial decisions are
of little help when the statutes, although dealing with compensation, are not
dealing with compensation for loss arising in parallel circumstances.
We are
concerned with that part of the statute whose subject-matter is planning
control in relation to the use of land or activities (ie operations) in, on,
over or under it: see section 22. Section 164 is one of several sections
contained in Part VIII of the Act which provide for compensation for planning
restrictions where, broadly speaking, existing permission is revoked. Part VII
of the Act provides for compensation in respect of planning decisions whereby
permission for the carrying out of new development is refused, or granted subject
to conditions. It is only in Part VI that we see a link with the Lands Clauses
Consolidation Act, for Part VI deals with compulsory acquisition of land itself
or buildings (not with restrictions on use), although this of course is
acquisition in pursuance of planning control.
Therefore I
approach section 164 on the basis that it is a section designed to compensate
those who have incurred expenditure in reliance upon a permitted use only to
find that they now face loss because the planning authority has revoked
permission. The subject-matter of the compensation is not the compulsory
acquisition of land, but the restriction upon use. Clearly some limit has to be
placed upon the right to claim compensation because many a person may be
affected by a change in the permitted use of land while not themselves being
directly concerned to make any use of it. In the present case, for example, an
omnibus company might have planned to lay on transport facilities to and from
the airfield. In my opinion this section envisages as deserving of compensation
a person who had a right in relation to the land, which right is adversely
affected by the restriction on use.
I now consider
the appellants’ position under the deed of October 24 1974. Under it the owner
for a pecuniary consideration gives to the appellants the right to use the land
for a specific purpose for at least a year. This in my opinion is the effect of
clause 4, which speaks of the ‘first full year’. Clause 6, which provides for
revision of the fee after five years, shows that this arrangement was regarded
as one of
yearly tenancy. It is not necessary for me to decide all of the incidents of
the agreement, but in my opinion, while of course it is determinable, it must
be subject to reasonable notice, and by analogy with a yearly tenancy I would
think that six months is probably the correct length of notice.
I therefore
think that the appellants have a substantial right in relation to the land.
In support of
his argument that the phrase ‘a person interested in the land’ is shorthand for
‘a person having an interest in land’, counsel for the respondents referred to
section 52 of the Act.
Subsection (1)
of that section reads as follows:
A local
planning authority may enter into an agreement with any person interested in
land in their area for the purpose of restricting or regulating the development
or use of the land, either permanently or during such period as may be
prescribed by the agreement; and any such agreement may contain such incidental
and consequential provisions (including provisions of a financial character) as
appear to the local planning authority to be necessary or expedient for the
purposes of the agreement.
Subsection (2)
reads:
An agreement
made under this section with any person interested in land may be enforced by
the local planning authority against persons deriving title under that person
in respect of that land, as if the local planning authority were possessed of
adjacent land and as if the agreement had been expressed to be made for the
benefit of such land.
Counsel says
that the reference in section 52(2) to ‘persons deriving title under that
person’ indicates that the person interested is a person with an interest in
land, so that it is possible for someone to derive title under him. I cannot
read subsection (2) as saying that a person can only be interested in land
under subsection (1) if it is possible for someone to derive title under him. I
read it as saying that if in a particular case the person interested had such
an interest which was transferable and had transferred it, then the agreement
may be enforced against the transferee. I cannot read subsection (2) as
limiting the meaning of subsection (1) so as to make subsection (1) apply only
to persons who have an interest in land in a strict conveyancing sense. We are
dealing with a statute which controls use and operations on land and provides
compensation. It is not a conveyancing statute.
The Act refers
to an ‘interest in land’ in other sections and to my mind the change to the
less technical language of ‘interested in the land’ in section 164 is
deliberate. I cannot see that it was dictated by the desire to achieve economy
of language, for the saving between ‘a person interested in the land’ and ‘a
person with an interest in the land’ is minimal.
I therefore
feel free to interpret the phrase without regard to technical terms. In the
context of the Act, and section 164 in particular, a person who, like the
appellants, has an enforceable right as against the owner to use the land in
the way which has now been prohibited is ‘a person interested in the land’
within section 164.
Although I
have reached my conclusion upon the basis that I do not have to regard section
164 as requiring the claimant to establish that he is a person with an interest
in the land, I would none the less have come to the conclusion that the
appellants were entitled to compensation even if the words in section 164 had
been ‘a person with an interest in the land’. I find little difference in
principle between the present case and that of Plimmer v Mayor etc of
Wellington (1884) 9 App Cas 699. In that case an occupier of land had incurred
expense in doing work at the request of the Government, the owners of the land.
Subsequently the land became vested by statute in the respondents. The question
arose whether the occupiers would have been entitled to compensation under a
statute which enacted:
Every person
who immediately before the passing of the said Act had any estate or interest
in, to or out of the lands by the said Act vested in the Corporation . . .
shall be entitled to receive full compensation from the Corporation.
At p 712 Sir Arthur
Hobhouse said:
Their
Lordships will not be the first to hold, and no authority has been cited to
them to show, that after such a landowner has requested such a tenant to incur
expense on his land for his benefit, he can without more and at his own will
take away the property so improved.
He went on to
say:
The question
still remains as to the extent of the interest which Plimmer acquired by his
expenditure in 1856. Referring again to the passage quoted from Lord
Kingsdown’s judgment, there is good authority for saying what appears to their
Lordships to be quite sound in principle, that the equity arising from
expenditure on land need not fail merely on the ground that the interest to be
secured has not been expressly indicated.
In that case
Plimmer’s right did not rest upon a specific agreement, because there was none.
It rested upon the equity resulting from the fact that he had expended money at
the owner’s request. In our case the owner has specifically contracted to grant
the right to use the land and in addition the appellants have also incurred
expense under the agreement. In each case one sees an enforceable right to use
the land.
In Plimmer’s
case at p 714 we read:
In this case
their Lordships feel no great difficulty. In their view, the licence given by
the Government to John Plimmer, which was indefinite in point of duration but
was revocable at will, became irrevocable by the transactions of 1856, because
those transactions were sufficient to create in his mind a reasonable
expectation that his occupation would not be disturbed; and because they and
the subsequent dealings of the parties cannot be reasonably explained on any
other supposition. Nothing was done to limit the use of the jetty in point of
duration. The consequence is that Plimmer acquired an indefinite, that is
practically a perpetual, right to the jetty for the purposes of the original
licence, and if the ground was afterwards wanted for public purposes, it could
only be taken from him by the legislature.
The licence in
the present case is irrevocable. It is true that it is not perpetual but the
emphasis in Plimmer’s case is upon irrevocability. In that case the
licence was to occupy, but it was for a particular use, namely for the purpose
of a jetty or wharf. In the present case there is a licence to occupy and use
for the purposes of motor racing. It seems to me that the appellants’ right is
just as much an interest in land as was Plimmer’s right. I do not have to say
that the appellants’ interest is an interest in land in a strict conveyancing
sense. In Plimmer’s case at p 714 Sir Arthur Hobhouse said:
There are
perhaps purposes for which such a licence would not be held to be an interest
in land. But their Lordships are construing a statute which takes away private
property for compensation, and in such statutes the expression ‘estate or
interest in, to or out of land’ should receive a wide meaning.
Of course it
is a wide meaning which has its limits. As Lord Reid said in Gartside v Inland
Revenue Commissioners [1968] AC 553 at p 602:
But that does
not mean that everything which the man in the street might call an interest is
covered by the word ‘interest’ in these sections. A man may say that a son and
heir has an interest in his father’s property to which he might reasonably
expect to succeed. But one can discard that meaning: the son not only has no
right in or over his father’s property but he has no right to prevent his
father from dissipating it. The respondents admit that, to be an interest under
these provisions, it must give to the holder of it some right.
As I have
said, the possession by the appellants of an enforceable right to use the land
is sufficient in my opinion to make them ‘a person interested in the land’ for
the purposes of section 164 of the Town and Country Planning Act 1971.
I think I
should add a few words out of respect for the careful argument of counsel for
the respondents. I have said that I do not think it appropriate in the present
case to turn to other decided cases as an aid to construction. However, as
counsel has relied upon a number of other cases, I think it right that I should
mention four of them. The first is Wilson v Tavener [1901] 1 Ch
578. There was an agreement permitting the plaintiff to erect a hoarding for a
billposting station upon the defendant’s land at the rent of £10 per year
payable quarterly. The defendant gave the plaintiff three months’ notice to
quit. The sole question was whether the plaintiff was entitled to six months’
notice on the basis that the agreement created a tenancy from year to year and
not a licence. It was held that there was no tenancy from year to year and that
three months’ notice was a reasonable notice to terminate the licence. It is
true that Joyce J, at p 581, said that the document did not confer on the plaintiff
any right to the exclusive possession of any property, but this cannot be taken
to indicate that exclusive possession is necessary for the
lease. I do not regard that case as an authority on the meaning of ‘interest in
land’.
In Frank
Warr & Co Ltd v LCC [1904] 1 KB 713 it had been agreed that the
plaintiff should have the exclusive right for a term of years to supply
refreshments in a theatre, and for that purpose should have the necessary use
of the refreshment rooms and other accommodation. It was held that the contract
did not confer on the plaintiff an interest in land which could form the
subject of compensation under the Lands Clauses Consolidation Act 1845, section
68. The Master of the Rolls took the view that the agreement was drafted so as
to exclude the idea that any interest in land was to be given. At p 718 he
said:
It seems to
me that the agreement in this case is carefully framed so as to exclude the
notion that there was to be anything like a demise of any part of the premises.
Romer LJ said
at p 721:
There was no
such right created either at law or in equity as constitutes any known estate
or interest in land.
Mathew LJ said
at p 724, referring to section 68 of the Lands Clauses Consolidation Act 1845:
That section
speaks of ‘compensation in respect of any lands, or of any interest therein,
which shall have been taken for or injuriously affected by the execution of the
works.’
The word
‘taken’ involves that the person to be compensated has had, and has been
deprived of, the land or some interest therein; and it seems to me impossible
to doubt that the section contemplates as the subject-matter of compensation
land or some estate or interest in it and not a mere licence or contractual
privilege such as was conferred by the agreement in the present case. He went
on to say that the use of the accommodation was only ancillary to the general
purpose of the agreement. In my opinion the decision in that case was arrived
at upon the basis that ‘an estate or interest in land’ such as was already
known to the law had to be shown. Furthermore, it seems to me that the decision
was influenced by the fact that the right to claim compensation arose out of
the compulsory taking of the land. They were not considering a case of
compensation in the context of legislation prohibiting a particular use. I do
not think that a decision under a differently worded Act of 1845 compels me to
take the same approach to the phrase ‘interested in land’ in section 164.
In Edinburgh
Street Tramways Co v Torbain (1878) 3 App Cas 58 at p 68 Lord
Blackburn said:
I quite agree
that in construing an Act of Parliament we are to see what is the intention
which the legislature has expressed by the words, but then the words again are
to be understood by looking at the subject matter they are speaking of and the
object of the legislature, and the words used with reference to that may convey
an intention quite different from what the self-same set of words used in
reference to another set of circumstances and another object would or might
have produced.
I would accept
that the phrase ‘a person interested’ involves having an interest of some kind,
but it does not follow that it is limited to the same class of interests as is
required by other legislation. There has been a considerable development in the
law in relation to equitable interests and I do not think that it is right to
regard the category as closed.
We were
referred to King v David Allen & Sons, Billposting Ltd [1916]
2 AC 54. In that case the defendant had given the plaintiffs permission to
affix posters to the flank walls of a picture house proposed to be erected on
his property by a company about to be formed. The permission was ‘for a period
of four years as from November 1 1913 or the first day the picture house should
be open for business . . .’. It was held that the agreement did not create an
interest in land but merely a personal obligation. The issue in the case was
whether the obligation under the agreement was such that it could be enforced
against a purchaser of the land with notice of it. Consequently the words
‘interest in land’ were used in a restricted sense.
Finally, the
case of Walton Harvey Ltd v Walker and Homfrays Ltd [1931] 1 Ch
274 was another case concerned with a claim for compensation under the Lands
Clauses Acts following the compulsory acquisition of land. And my comments on
the case of Frank Warr & Co Ltd v London County Council apply
here.
For these
reasons I would allow this appeal.
Agreeing that
the appeal should be allowed, KERR LJ said: My mind has wavered during the
argument, but I have ultimately reached the clear conclusion, in agreement with
my Lords, that this appeal should be allowed.
It seems to me
that one starts with the following considerations in construing the words ‘a
person interested in the land’ in section 164(1) of the Town and Country
Planning Act 1971. The section provides for compensation for the revocation or
modification of planning permission in circumstances in which any person
interested in the land has incurred expenditure in carrying out works which are
thereby rendered abortive, or has otherwise sustained loss or damage which is
directly attributable to the revocation or modification. The words ‘interested
in’ are wide and are generally capable of a wide application in whatever
context they may appear. But, whatever may be their limits, as a matter of
ordinary language subsection (1) would appear to be directly applicable to
persons in the position of the appellants in this case. Thus, it is conceded
that if the abortive expenditure had been incurred by the landowner, Mr Witham,
he would have an undeniable right to compensation under this provision, because
— as the owner of the land — he was clearly a person interested in the land. So
be it. However, for the purposes of subsection (1) his interest would not be as
owner of the land, but as the person who would have done work on the land and
incurred expenditure in so doing, both of which would have been rendered
abortive by the revocation of the permission to use the land for the purpose
for which the work was done and the expenditure incurred. It is that
interest for which the subsection provides compensation. In these
circumstances, should it make any difference that the work has been done, and
the expenditure incurred, not by Mr Witham, but by the appellants in
consideration of the contract made with him?
In the context of a statute which recognises the just need for
compensation when planning permission has been revoked or modified, I should be
reluctant so to conclude unless compelled by authority or by other provisions
of the Act which compel a restricted construction of subsection (1). For the
purposes of this subsection, and as a matter of ordinary language, it seems to
me that the appellants would clearly be properly describable as persons
interested in the land in the same way as Mr Witham, if he had done the work
and incurred the expenditure.
Is there then
anything which compels a narrower construction of the words ‘a person
interested in the land’ in subsection (1) so as to exclude the appellants?
It is conceded
on behalf of the respondents that there is no authority where the meaning of
these words has been considered as such, either in relation to this statute or
any other statute. What is relied upon by Mr Fletcher in his lucid argument on
behalf of the respondents is the repeated reference by the draftsman in other
provisions of this Act to an ‘interest in land’, coupled with the hallowed
meaning of those words in the law of real property and the language of
conveyancing. However, on the authorities it seems clear that (i) even the
expression ‘interest in land’ is not necessarily to be interpreted in its
narrow technical sense in the context of statutes providing for compensation,
and (ii) an interest in land may in practice result from the application of
equity to situations analogous to that in the present case. Illustrations of
the former are Plimmer v Mayor etc of Wellington (supra) and DHN Food
Distributors Ltd v Tower Hamlets London Borough Council [1976] 1 WLR
852. Illustrations of the latter are Inwards v Baker [1965] 2 QB
29 and Ward v Kirkland [1966] 1 WLR 601 at pp 626 to 632, where
Ungoed-Thomas J reviewed the authorities on this aspect, and his decision was
approved by this court in E R Ives Investment Ltd v High [1967] 2
QB 379. On the other hand, in statutes such as the Lands Clauses Consolidation
Act 1845 and its related modern successor, the Compulsory Purchase Act 1965,
where the expression ‘interest in land’ generally appears in the context of
references to an estate in land, this expression may require to be interpreted
in its narrow technical sense, as illustrated by Frank Warr & Co Ltd
v London County Council (supra), on which Mr Fletcher strongly relied.
The questions
which then ultimately arise, on this analysis, are whether the words ‘a person
interested in the land’ in section 164(1) require to be construed as being
synonymous with ‘a person having an interest in land’, and, if so, whether the
references in this Act to ‘an interest in land’ (as for instance in section 164
itself in subsections (2) and (3)) are to be construed in the narrow technical
sense which is illustrated by Frank Warr & Co Ltd v London County
Council. As to this, I do not think that it is necessary for present
purposes to form any view on the latter question, since I am not persuaded that
the former question should be answered in the affirmative. It seems to me that,
in construing the words ‘a person interested in the land’ in a provision
dealing with compensation, one is entitled to say that if the draftsman
had intended that section 164(1) should only apply to persons who have an
interest in land, and if the draftsman had also intended that the latter
expression should bear its narrow technical meaning wherever it appears in the
Act, then he would have been most unlikely to use the more general words ‘a
person interested in the land’ in section 164(1). For ‘draftsman’ it would no
doubt be more correct — but less realistic — to substitute ‘Parliament’.
I am also not
persuaded that a contrary conclusion in relation to section 164(1) must be
drawn from the reference to a person’s ‘enjoyment of the land’ in section
170(2). Mr Fletcher strongly relied on this as showing that protection may be
given to persons who may be ‘interested in land’ without having ‘an interest in
land’ proprio sensu. However, the appellants in this case are only
concerned with the question whether they can bring themselves within section
164(1). They are not concerned with the question whether they could also bring
themselves within any other provisions of the Act which refer specifically to
interests in land. In my judgment, they are able to say that they fall within
section 164(1) because there is no sufficiently compelling reason to exclude
them from it as a matter of necessary construction.
I therefore
agree that this appeal should be allowed.
Also agreeing
that the appeal should be allowed, STEPHENSON LJ said: Who is a person
interested in the land, who has incurred expenditure in carrying out work
rendered abortive by the revocation or modification of planning permission, or
who has sustained loss or damage directly attributable to the revocation or
modification? Is the claimant company
such a person?
It is common
ground that the company has incurred such expenditure and sustained such
damage. But is it a person interested in the land to which the revoked or
modified planning permission relates? A
wide variety of persons might be said in common parlance to be interested in
that land; a prospective purchaser, for instance, interested in buying it, a
neighbour interested in seeing what use it is put to, a geologist or an
agricultural expert interested in the soil of it. Though some such would be
ruled out by not having incurred expenditure or sustained loss or damage, all
such could be said to be interested in the land in the ordinary meaning of
those words. In their context what more precise meaning must they have? What interest in the land must a person have
to be entitled to compensation from the local planning authority in respect of
that expenditure, loss or damage under section 164(1) of the Town and Country
Planning Act 1971?
It is natural
to test the meaning of ‘interested’ by asking ‘what interest?’ and to find
references in other provisions of the same part of the Act to an interest in
land and persons who have it or are entitled to it: sections 164(3) and (4),
166(1) and (6), 167(3), 169(2), 170(2), 171(2) and 177(1). The same change is
to be found from a person interested in a building to a person who has an
interest in a building, again a distinction without a difference: sections
172(1) and 173(3). Differing, I fear, from my Lords, in this respect, with due
diffidence, I cannot see any difference between a person who has an interest in
the land, a person entitled to an interest in it and ‘a person interested in
the land’, and I regard the last expression as shorthand for the others, or
synonymous with them.
Any lawyer
asking what interest in the land a person must have to entitle him to
compensation must be conscious that ‘interests in land’ have a long legal
history and have been the subject of judicial and statutory reference and
exposition. And counsel have taken us to the first appearance in a statute of a
person interested in land authorised to be purchased by statute who qualifies
for compensation, in section 18 (and section 19) of the Lands Clauses
Consolidation Act 1845. It is clear from the language of section 18 that the
phrase has there a technical meaning; a person to be entitled to claim
compensation under that Act must have either an estate or an interest in the
land required of which he can give particulars on demand. And those interested
in the land are coupled and contrasted with those who have the power to sell
and convey or release the land.
Estates and
interests in land are now distinguished and defined in section 1 of the Law of
Property Act 1925. Section 5 of the Compulsory Purchase Act 1965 maintains the
distinction between persons interested in the land and those who have the power
to sell and convey or release it, and maintains also the requirement of particulars
of estate or interest in the land — of estate from freeholders and leaseholders
under section 1 of the Act of 1925 and of interest from all those others who
have equitable interests under that section.
Section 164 of
the Town and Country Planning Act 1971, which we have to interpret and apply,
makes no reference to estates or estate owners with power to sell and convey or
release, but they must, I think, now be included in this section (and in
sections 33(1) and 52), with those who have interests, in the comprehensive
‘person interested in the land’, as section 45(3) indicates. To my mind the
only open question on the interpretation of section 164(1) is whether the
context of a planning statute extends the meaning of the words to other
interests of a novel kind. Such an extension may be unnecessary if the interest
of the company in this case falls within those interests in land which the real
property lawyer now recognises, however reluctantly, as having been evolved or
extracted by legitimate development of the law and equity by judicial authority
binding on this court.
The company’s
connection with the land in question is close and special. Is it enough to give
the company an interest in it, either as an interest already identified by
binding authority, or as an interest required by the context to be recognised
as entitling the person who has it to compensation?
The
authorities cited by Mr Fletcher for the planning authority, especially Frank
Warr & Co Ltd v London County Council and Walton Harvey Ltd
v Walker and Homfrays Ltd persuaded me that the company’s interest could
not amount to an equitable interest in the land, but Mr Brooke’s reply has left
me in doubt. I am, however, satisfied that even if the company’s interest is
one not yet recognised by authority it is one which no authority forbids us to
recognise and one which should be recognised as qualifying the company for this
statutory compensation. With the permission of the owner the company had
erected about 400 yds of substantial safety barriers, had moved about 3,000m3
of top soil to erect a spectator bank, had put up fencing to a height of five
ft over a length of three-quarters of a mile by attaching two strands of barbed
wire and two strands of nylon cable to existing posts and had tarmacked a race
track. To reinstate the land before the expiry of the year for which the
company had a right to use it, irrevocable by the owner, in consequence of the
revocation of planning permission has put the company to expenditure which
cannot be less than £16,100 (which was the sum offered and accepted before it
was withdrawn) and may be nearer £40,000, which was approximately the amount of
the company’s claim at its highest. That permitted development of the land
would seem to give the company a substantial interest in the land requiring
compensation under section 164. If not, the planning authority has been given
and has exercised a statutory power to take away the company’s valuable right
to use the land in the manner permitted by the owner without compensation — a
consequence which should not lightly be attributed to Parliament.
In my opinion
we ought not to decide the question whether sections 45 and 164 have that
consequence by answering such questions as whether the company’s licence from
the owner was revocable or irrevocable or whether the fixtures and fittings
which the company had to remove at its own expense were annexed to the land.
So also I do
not think it necessary to decide whether the categories of equitable interests
in land are closed or whether every
the General Development Order or otherwise, is an interest in land entitling a
person who has it to statutory compensation under Part VIII of this Act. But I
am of opinion that this development of this land is of such a character and
extent as to make this company interested in this land for the purposes of this
section.
I would
accordingly allow the appeal.
The appeal
was allowed with costs in the Court of Appeal and Lands Tribunal. Leave to
appeal to House of Lords refused.