Access to highway–Purchase of property without rights of access to highway over intervening land–Assumption that access would be obtained as a result of an agreement between the owner of the intervening land and the highway authority under section 40 of the Highways Act 1959–Condition in planning permission requiring construction of estate road–Access road in fact only completed by surfacing up to a terminal point short of boundary–No duty on planning or highway authority to compel or secure extension of road to boundary or to acquire intervening strip compulsorily–Matter for private bargaining between adjoining owners
In this action
the plaintiffs, Geoffrey Perry and Mrs Rosalie Richardson, adjoining landowners
at Rowlands Hill, Wimborne, Dorset, sought declarations against the second
defendants, Wimborne District Council as planning authority, and the third
defendants, Dorset County Council as the highway authority, to the general
effect that they were bound to exercise their statutory powers to provide
access to and from the plaintiffs’ land over the strip of land belonging to the
first defendants, Stanborough (Developments) Ltd, between the terminal point of
the estate road and the northern boundary of the first defendants’ land.
Dennis Rice
(instructed by Hancock & Willis, agents for Rutter & Rutter, of
Shaftesbury) appeared on behalf of the plaintiffs; Dirik Jackson (instructed by
Allan Jay & Co, agents for Phillip Evans & Co, of Bournemouth)
represented the first defendants; and Miss Elizabeth Appleby (instructed by the
County Solicitor, Dorset County Council) represented the second and third
defendants.
Giving
judgment, Fox J said: The plaintiff, Mr Perry, is the owner of land at Rowlands
Hill, Wimborne, Dorset. The plaintiff, Mrs Richardson, is the owner of
adjoining land. Mr Perry contracted to buy his land, together with other land,
in January 1973 and completion took place on March 30 1973. Mrs Richardson has
owned her land for some time prior to 1973. The purchase price of the land
bought by Mr Perry was £45,000 which included a house, a cottage and adjacent
land. He subsequently sold the house and cottage for £20,000 and retained the
adjacent land. That is the land which Mr Perry now owns and I will call it
"the Perry land."
Mr Perry
admits that, at the time when he made the purchase in 1973 his solicitors
warned him that he was taking a risk in purchasing the property because he had
no rights of access to any highway over land to the south of the Perry land.
Such land to the south of the Perry land consisted of Mrs Richardson’s land and
land owned by the defendants, Stanborough Developments Ltd. Mr Perry deposes
that so far as Mrs Richardson was concerned he did not anticipate any
difficulty, since he and his wife were on good terms with her and it was, in
fact, Mrs Richardson who suggested that he should buy the land in the first
place. As regards Stanborough, Mr Perry, after discussions with his advisers,
concluded that no difficulty would arise because Stanborough had planning
permission to develop its land and the planning permission contained a
condition that Stanborough must construct an estate road right up to Mrs
Richardson’s boundary. Thus Mr Perry’s evidence is as follows: "I presumed
that access would be obtained through Mrs Richardson’s land (with her agreement)
and through that of Stanborough, by virtue of its obligation to bring the
estate road up to the boundary of Mrs Richardson’s land and the automatic
adoption thereof by the local authority pursuant to a section 40
agreement" (ie an agreement under section 40 of the Highways Act 1959). In
these circumstances, says Mr Perry, he completed the purchase. His evidence,
and it is not disputed, is that the price which he paid for the land was a
reasonable price at the beginning of 1973 provided that the land could be
developed.
Stanborough
has developed its land and has built and fully made up an estate road to a
point within about 3 ft or 4 ft of Mrs Richardson’s boundary (which point I
will call "the terminal point"); in fact the road continues a little
way over the boundary but it is only fully surfaced up to the terminal point.
By an agreement between Stanborough and the Wimborne Urban District Council
(the predecessor of the third defendant as the highway authority) under section
40 of the Highways Act 1959, the urban district council took over the estate
road up to the terminal point and Stanborough dedicated the road to the use of
the public as a highway up to the terminal point.
The position
now is that Mr Perry and Mrs Richardson wish to develop their land and have
planning permission to do so but have no rights of way over Stanborough’s land
beyond the terminal point. In these circumstances Mr Perry and Mrs Richardson
say, in effect, (a) that it is the duty of the defendant, the Wimborne District
Council (as the present planning authority) to compel Stanborough to build the
road up to Mrs Richardson’s boundary in accordance with the planning
permission, and (b) that it is the duty of the defendant, the Dorset County
Council (as the highway authority) to use its best endeavours to obtain the
extension of the section 40 agreement to embrace the whole of the road to the
boundary with Mrs Richardson’s land or, alternatively, to acquire by compulsory
purchase that part of the estate road beyond the terminal point.
There are a
number of matters to which I should now refer in more detail.
On November 19
1971 outline planning permission in respect of Stanborough’s land was granted
by the Wimborne and Cranborne RDC acting as agents for the third defendant. The
plan annexed to the permission shows the proposed estate road stopping short of
the red line which indicates the northern boundary of the development. The
conditions subject to which the permission was granted, however, included the
following: "5. The estate road shall be constructed up
The reason given in the permission for this was: "To allow for the
future comprehensive development of the area."
The outline
planning permission granted to Mrs Richardson (and a Mrs Cant) on May 26 1972
contained a condition 6 as follows: "Before any foundation of any
individual dwelling is dug on land forming the subject of this application the
new estate road shall be constructed from the carriageway of the existing
highway to the site of that building. . . ." The reason given was: "To ensure that
the individual dwellings are accurately set out in accordance with the improved
layout and adequate means of access is available when the dwelling is
occupied." The planning permission
granted to Mrs Richardson on March 29 1974 contained a condition (no 9)
requiring houses to be connected by footpaths to the highway.
The agreement
under section 40 of the Highways Act 1959 to which I have referred (which I
will call "the section 40 agreement") is dated September 20 1972 and
made between the Wimborne Minster Urban District Council of the one part and
Stanborough of the other part. The purpose of the agreement was, inter alia,
to secure the construction by Stanborough of a road which could be adopted as a
highway and maintained at the public expense. It is clear that the road which
Stanborough contracted to make and dedicate to the public by the agreement
extended only as far as the terminal point. The third defendant accepts that
Stanborough’s obligation under the section 40 agreement has been complied with.
I should
mention here that Mr Stevens, a chartered architect, in paragraph 16 of his
affidavit sworn on behalf of the plaintiffs, after referring to the grant of
planning permission in respect of Mrs Richardson’s land in May 1972 says:
"It became known that Stanborough Developments Ltd was about to enter into
a ‘section 40’ agreement with the Wimborne District Council, but that this
company was seeking to retain a strip of land next to its northern boundary by
excluding some 3 or 4 ft of the road from the agreement." As I have mentioned, the agreement was
entered into on September 20 1972. Mr Perry contracted to buy his land in
January 1973.
Mr Press, the
chief executive to the Wimborne District Council and formerly clerk to the
Wimborne and Cranborne Rural District Council, deposes that the purpose of
inserting condition 5 in the outline planning permission of November 1971, read
in conjunction with the reasons for imposing that condition, was merely to
indicate the intention of the authority to preclude the erection of any form of
dwelling at the northern end of Poplar Close (the estate road) which would have
effectively sterilised the future comprehensive development of the land to the
north of the boundary. Mr Press deposes further that the intention of both the
former and the present councils was that there was never any suggestion that
the plaintiffs’ extension of the access road should be available free of charge
against the interests of Stanborough. The councils have allowed Stanborough to
retain the strip of land between the terminal point and the northern boundary
for the express purpose of entering into a normal commercial transaction with
any prospective developer of the land to the north (that is to say the
plaintiffs’ land) in order to offset the costs incurred in the construction of
the access road up to the terminal point.
Essentially
what the plaintiffs are seeking is free access to their land over Stanborough’s
land. If Stanborough will not provide free access (and Stanborough will not)
the plaintiffs assert that the second and third defendants must exercise
statutory powers and, if necessary, expend public money in providing such
access. To this end the first relief sought by the originating summons is a
declaration that the second defendant (the Wimborne District Council) as the
planning authority is entitled and required to enforce fully condition 5 of the
planning permission of November 19 1971. That condition, as I have indicated, requires
the estate road to be built up to the northern boundary of Stanborough’s land.
In fact is has been built up to and beyond the boundary though it is not
surfaced beyond the terminal point.
Let us assume
that (contrary to the defendants’ contention that the condition ought on the
facts to be regarded as having been complied with) the plaintiffs are correct
in their argument that condition 5 has not been fully satisfied. No doubt then
the second defendant is entitled to enforce the condition. But that avails the
plaintiffs not at all unless the second defendant is bound to enforce the
condition. Enforcement is dealt with by section 87 of the Town and Country
Planning Act 1971. Subsection (1) of that section is in the following terms:
"Where it appears to the local planning authority that there has been a
breach of planning control after the end of 1963, then, subject to any
directions given by the Secretary of State and to the following provisions of
this section, the authority, if they consider it expedient to do so having
regard to the provisions of the development plan and to any other material
considerations, may serve a notice under this section . . . requiring the
breach to be remedied." It seems to
me that in terms the express intention of this enactment is that the matter is
left to the decision of the planning authority.
In Swindon
Corporation v Pearce and Pugh [1948] 2 KB 301 the matter concerned a
notice given under section 5 of the Town and Country Planning (Interim
Development) Act 1943. That section provided that where any development is
carried out within a specified area otherwise than in accordance with the terms
of the interim development order or permission granted thereunder "the
development authorities may if they are satisfied that it is necessary or
expedient so to do . . . (b) where the development consists of any use of the
land or building thereon by order prohibit that use." Lord Goddard CJ giving the judgment of the
Divisional Court said this (at p 310): "It is, we think, evident that
Parliament meant these matters to be left to the decision of the elected local
authority. It is for them to consider, and not for a court, what it is
desirable should be done or not done in relation to these schemes; and provided
they are acting intra vires, their action cannot be controlled by the
courts." These observations seem to
me to be equally applicable here. It is in my view essentially a matter for the
discretion of the council whether they take any enforcement action. And I see
no reason for concluding that the council is any way acting improperly in
saying that it sees no need for enforcement action. In effect it is contended
on behalf of the plaintiffs that the council’s measures are improper in that it
is a wrong exercise of a discretion in a planning matter to say that the
council will simply leave the question of access to the ordinary forces of
bargaining. I do not accept that argument. So far as Stanborough’s land is
concerned (and it is in respect of that land that condition 5 was imposed in
the first place) there is no evidence that surfacing the last 3 or 4 ft of the
road beyond the terminal point is of any vital importance from the planning
point of view; and certainly no occupier of that land is asserting that it is.
As regards the plaintiffs’ land, the surfacing of the last 3 or 4 ft will not,
by itself, be of any consequence. The plaintiffs will still not have any rights
of way over it in the absence of either consent by Stanborough or a compulsory
acquisition by the highway authority and dedication as a highway.
In the
circumstances I see no reason why the authority are not perfectly entitled in
the exercise of the very wide discretion conferred upon them (and them alone)
by the statute, to say simply that they do not propose to take enforcement
action. As to leaving matters to private bargaining, it is in my view entirely
within the discretion of the planning authority in such circumstances as these
to decide at what point planning considerations do not justify enforcement action
so that the ordinary rights of landowners can be left to take effect. It seems
to me that it is exactly the sort of matter that must be squarely within the
discretion
whether enforcement is desirable or not. The fact that the authority has
imposed a condition in relation to the development of one piece of land cannot
mean that the authority necessarily has an obligation to enforce it for the
benefit of the owner of another piece of land. It is said, however, that
condition 5 was expressly imposed with a view to comprehensive development. As
to that I would only observe that refusal to take enforcement action does not
necessarily preclude comprehensive development. It merely means that Mr Perry
may not be able to develop his land as he wishes without buying rights of way
from Stanborough. Mr Perry says that Stanborough might demand a wholly
unreasonable sum. That no doubt, if it happens, is a matter which the planning
authority would take into consideration. But enforcement is still a matter for
the planning authority.
The second
defendant has in the exercise of its discretion decided against enforcement
action, and in my view that concludes the matter on this point. Accordingly,
the plaintiffs are not entitled to any declaration to the contrary. And I see
no point in the court making a declaration that the second defendant is
entitled (if it is entitled) to take enforcement action. As I have mentioned,
merely to extend (which in effect means to surface) the estate road as far as
the northern boundary does not assist the plaintiffs. They need rights of way
over the extension or they are no better off.
That brings me
to the second declaration sought by the plaintiffs. It is a declaration that
the third defendant (the Dorset County Council, the highway authority) is
entitled and bound to use its best endeavours to procure the extension of the
section 40 agreement so as to embrace that part of the estate road between the
terminal point and the northern boundary of Stanborough’s land or,
alternatively, to acquire compulsorily such part pursuant to section 44 of the
Highways Act 1971. It would in my judgment be pointless for the court to make a
declaration in the terms of the first alternative, even assuming the existence
of any such obligation in the third defendant as that alternative assumes (and,
as I mention later in my view, wrongly assumes). It would be pointless because
Stanborough has no intention of accommodating any endeavours to extend the
section 40 agreement to that part of the road beyond the terminal point. And without
Stanborough’s co-operation such agreement would be impossible. Thus section
40(2) of the Highways Act 1959 provides that: "Subject to the following
provisions of this section, a local highway authority may agree with any person
to undertake the maintenance of: (a) any private carriage or occupation road
which that person, being a person having the necessary power in that behalf, is
willing to dedicate as a highway."
This provision is entirely permissive as regards both parties to the
agreement and thus cannot be operated here without Stanborough’s consent.
That leaves
only the alternative of a declaration that the third defendant is bound to
acquire the road beyond the terminal point by compulsory purchase under section
44 of the Highways Act 1971. Now, it does not seem to me that the fact that
condition 5 requires that the estate road should be constructed up to the
boundary can imply any obligation whatever upon the planning or highway
authority to take it over as a public highway or to endeavour to enter into a
section 40 agreement for that purpose. It is simply a condition which takes
effect according to its terms (as properly construed) and no further. Much less
does it in my view imply any obligation upon any such authority to acquire the
road or any part of it compulsorily for the financial benefit of adjoining
landowners. It is said that there is such an obligation and that the basis of
that obligation is good planning. But in my view it is essentially a matter for
the planning authority to decide what is good planning. This is not a case
where it is sought to restrain the authority from abusing its powers by doing
some act with an improper motive. What is sought is that the court should
intervene and decide positively that the local authority must acquire land
compulsorily for the benefit of adjoining landowners in circumstances where the
authority does not wish to do so. That seems to me to be a quite unwarranted
interference with the discretion conferred by section 44 of the Highways Act
1971. Under that section the powers of the highway authority are clearly wholly
permissive. The grant of planning permission in respect of the plaintiffs’ land
merely makes the permitted development lawful. To what extent that development
serves the public interest I do not know. But it must I think be entirely a
matter for the appropriate authority to decide whether compulsory powers are to
be exercised, at the public expense, to provide highway access to that land.
The grant of planning permission either to the plaintiffs or to the defendants
does not fetter that discretion.
I do not think
that the court is entitled to conduct an inquiry into what is or is not good
planning with a view to displacing the decision of the planning authority if
the court thinks fit. The second and third defendants are not acting ultra
vires and they are not acting in bad faith. The court, in my judgment, is
not entitled to substitute its own view of planning needs for that of the
second and third defendants.
It is implicit
in Mr Perry’s case that he was misled into purchasing the Perry Land in
reliance on condition 5 in the planning permission of November 19 1971 and that
accordingly the second and third defendants are under some obligation to ensure
access to Mr Perry’s land. I do not agree with that. Mr Perry made a
speculative purchase of land at a time of sharply-rising land values. He was
warned that he was taking a risk in relation to access. It is plain that he
neither sought nor obtained any undertaking about access from the planning
authorities. It is equally plain in my view that condition 5 did not bind the
planning authority to any course of action so far as he was concerned. In my
view the second and third defendants have incurred no obligations to him.
My conclusion
on the whole matter therefore is that the plaintiffs are not entitled to the
relief they seek.
I should add
that I have heard argument on the issue whet er either of the plaintiffs had
any locus standi at all to bring these proceedings, but on the view of
the matter which I have taken it is not necessary for me to investigate that.
The
plaintiffs’ summons was dismissed with costs.
