Town and country planning — Conservation area designation — Whether agenda provided three clear days before committee meeting — Whether decision of full planning committee effective designation of conservation status — Whether chalets buildings
The appellant
owned the freehold of an area of land upon which were sited 27 wooden
self-built chalet-type dwellings, which were upon the land by licence and which
remained in the ownership of the licensees. In early 1990 the appellant
approached the respondent local planning authority concerning the possible
development of the land. That provoked a report by the planning officer
recommending that the land be designated a conservation area. On May 1 1990 a
‘three-man subcommittee’, the agenda for which had been available on April 26,
accepted the officer’s recommendation. On July 20 1990 the planning committee,
which had been asked to confirm the decision of the May 1 meeting, endorsed
that decision. The appellant, in appealing from the decision of the judge below
who had dismissed the application for judicial review of the council meetings,
contended, inter alia, that: (1) there had been a procedural
irregularity concerning the first meeting because section 100B of the Local
Government Act 1972, which requires three clear days notice of agendas before a
meeting, had not been complied with; (2) the decision of July 20 1990 was not
an effective declaration of conservation area status; and (3) the chalets were
not buildings and could not be protected by conservation area status.
because April 28 and 29 were not working days, and the decision of May 1 1990
was therefore procedurally irregular and had no effect in law. The acceptance
by the planning committee on July 20 1990 was, in terms, an acceptance which
took effect as the declaration of the conservation area and achieved what the
meeting on May 1 failed in law to achieve. The chalets were, as a matter of
objective judgment, structures or erections and therefore buildings within the
meaning of the planning legislation.
The following
cases are referred to in this report.
Barvis
Ltd v Secretary of State for the Environment
(1971) 22 P&CR 710, DC
Cardiff Rating
Authority v Guest Keen Baldwin’s Iron &
Steel Co Ltd [1949] 1 KB 385; [1949] 1 All ER 27; 65 TLR 159; 47 LGR 159,
CA
Cheshire
County Council v Woodward [1962] 2 QB 126;
[1962] 2 WLR 636; [1962] 1 All ER 517; (1962) 60 LGR 180; 13 P&CR 157, DC
James v Brecon County Council (1963) 15 P&CR 20, DC
R v The Justices of Hertfordshire (1820) 3 B & Ald 581
This was an
appeal by the applicant, Elitestone Ltd, from a decision of Macpherson J, who
on May 12 1992 had dismissed the applicant’s application for judicial review of
decisions of the respondents, Swansea City Council.
James Thom
(instructed by Holt Jones) appeared for the appellant; Clive Newberry QC
(instructed by the solicitor to the Swansea City Council) represented the
respondents.
Giving the
first judgment at the invitation of the Master of the Rolls, MANN LJ
said: This is an appeal against a decision of MacPherson J given on May 12
1992. By his decision the judge dismissed the appellant’s application for
judicial review for which leave to move had been given on August 12 1990.
The appellant
is Elitestone Ltd, which is the freehold owner of an area of land of some 5.6
acres known as Holt’s Field, Murton, Swansea. Upon the land are 27 wooden
self-built chalet-type dwellings, which are upon the land by licence and which
remains in the ownership of the licensees. The appellant wishes to secure the
demolition of these units and to develop the site with conventional housing.
The development control authority is Swansea City Council, who are the
respondents to the judicial review application and to this appeal.
The background
is as follows: in the early spring of 1990 the appellant’s agents formally
approached the district planning authority and explained what the company had
in mind with regard to Holt’s Field. This approach provoked a report by the
respondent’s director of development, which was expressed as having this
purpose:
The purpose
of this report is to protect and secure the character of the area known as
Holt’s Field, Murton through its declaration as a Conservation Area.
The report
contained this passage:
The site
provides a fascinating insight into an era which is rapidly disappearing.
Whilst at one time there were many examples of this type of ‘plotland’
development throughout the country most have now disappeared or have been
redeveloped. Consequently a unique part of the nation’s built legacy has been
virtually lost. Holt’s Field is a rare example of the very few areas which
remain in their integrity.
Locally the
site is significant in that it provides an example of how ordinary city
dwellers in Swansea sought their escape to the fresh air and tranquillity of
the countryside and the coast. It is also an example of the ordinary man’s
pursuit of ‘utopia’ as the alternative to Ebenezer Howard’s ‘Garden City’
movement.
The
redevelopment of the site would have a significant impact on the landscape of
the area. The very nature of redevelopment to present day standards would
result in an hitherto inconspicuous site becoming an intrusive element into the
open countryside to the serious detriment of the landscape quality of the area.
The
declaration of a conservation area is made under section 277 of the Town and
Country Planning Act 1971 as amended. Designation has the effect of ensuring
that no building within the designated area can be demolished without express
consent. Designation also provides control over new development to ensure that
it is in keeping with, or enhances, the character of the area. The officer’s
recommendation was that Holt’s Field be declared a conservation area.
The decision
upon the matter seems to have been regarded as one of urgency for the matter
came before what is described as the ‘three-man subcommittee’ rather than the
full planning committee. There is no suggestion that in so coming there was any
irregularity.
The matter so
came on Tuesday May 1 1990. Only two of the three were present. That is to say,
Mr R J Lloyd and Mr F T Hughes. Those gentlemen accepted the officer’s
recommendation and it was decided that Holt’s Field be declared a conservation
area.
It is
important to note that the agenda for the meeting, with the officer’s report,
were published on Thursday April 26. The reason for that importance will
subsequently appear. Suffice it for the moment to say that it founds an
argument as to a procedural irregularity.
The decision
of May 1 is the first of the decisions which was impugned in the judicial
review proceedings. The appellant complained about the decision to declare the
conservation area. The company regarded it as a device to inhibit development
and subsequently it took the point that there had been a procedural
irregularity.
There was an
exchange of correspondence upon which I need not pause, but as a result of the
complaint and correspondence there was a meeting of the planning committee on
July 20 1990. The committee had before it another report from the director of
development. The purpose of this report was expressed as being:
To obtain
Committee’s confirmation of the action taken by the 3 Man Sub-Committee to
declare Holt’s Field a Conservation Area on 1st May 1990
authorise relevant steps to be taken to de-designate the area. Committee will
also be appraised of representations made on behalf of the owner of Holt’s
Field.
I need not
pause upon the substance of the report. Much of it is similar in tenor to the
report which was before the three-man subcommittee, but I observe that there
was an additional factor introduced in para 3.8:
An
interesting reference work entitled ‘Arcadia for All’ published in 1984,
provided useful information on the social and historical background to the
development countrywide of what become known as ‘plotlands’. Many particularly
in the south and east coast of England were developed in the inter-war years
and in the post 1945 period. A telephone survey of local authorities where it
was known that some of these sites were located revealed that virtually all had
either disappeared completely or had been redeveloped beyond recognition. One
such site however still survived at Dungeness in Kent. The Shepway District
Council had afforded it due protection by declaring it a Conservation Area in
1985. Whilst the settlement pattern is different to Holt’s Field in that its
character reflects an open form of development the principles and reasons for
its designation are nonetheless similar.
I shall return
to the significance of that passage in a moment.
The
recommendation made by the director to the full committee was that the decision
of the three-man subcommittee be confirmed. The committee also had before it a
five-page and detailed skeletal argument prepared by the appellant’s solicitor,
who was allowed to address the committee and did so for a period of 10 minutes.
The minutes of the meeting show that Mr Lloyd and Mr Hughes were among the 23
members present and that the director of development changed his recommendation
from one of confirmation to endorsement. The amended recommendation was
accepted. The acceptance of the recommendation was the second decision impugned
in the judicial review proceedings. In regard to this occasion it is not
asserted that there was any procedural irregularity.
The learned
judge held that there was no procedural irregularity in regard to the
subcommittee meeting, but that if there had been then conservation area status
had been achieved on July 20. He also held that the chalets were buildings so
as to make relevant the provision for the protection of buildings which
operates in conservation areas.
Mr James Thom,
on behalf of the appellant, advances four grounds of appeal. First, that the
judge was wrong in holding that the decision of May 1 was not vitiated by
reason of a failure to comply with section 100B of the Local Government Act
1972. Second, the judge was wrong in holding that, if it was vitiated, then the
decision of July 20 was an effective declaration of conservation area status.
Third, the judge was wrong in holding that the chalets were buildings. Fourth —
what he concedes to be a minor point — the planning committee had regard to an
irrelevant consideration in that the Dungeness Conservation Area was not a
comparable.
I shall deal
separately with each of those grounds, but before doing so I observe that it is
not now suggested that either of the critical decisions can be impugned as
being irrational. I so observe because some people might find the decisions to
be upon their merits somewhat surprising.
Ground one.
Section 100B of the Local Government Act 1972 deals with access to agenda and
connected reports. Subsection (1):
Copies of the
agenda for a meeting of a principal council and, subject to subsection (2)
below, copies of any report for the meeting shall be open to inspection by members
of the public at the offices of the council in accordance with subsection (3)
below.
Subsection
(3):
Any document
which is required by subsection (1) above to be open to inspection shall be so
open at least three clear days before the meeting.
There are then
immaterial exceptions. Subsection (4):
An item of
business may not be considered at a meeting of a principal council unless
either —
(a) a copy of the agenda including the item (or a
copy of the item) is open to inspection by members of the public in pursuance
of subsection (1) above for at least three clear days before the meeting or,
where the meeting is convened at shorter notice, from the time the meeting is
convened.
I need read no
more.
It is agreed
that the meeting of the three-man subcommittee was, by a statutory route, a
meeting of a principal council.
Mr Thom
submits that subsection (4) on the facts was not satisfied. He does not suggest
that his client thereby suffered any specific prejudice, but he says that is
immaterial. The requirement of subsection (4) is a requirement in the public
interest which must be observed regardless of lack of prejudice to any specific
individual. I agree with that submission. Parliament has enacted an inhibition
and that inhibition must be observed. The question is, whether on the facts
subsection (4), when properly construed, was contravened. The requirement of
the subsection is that the agenda should be open for at least three clear days
before the meeting. ‘Clear days’ is a term of art. Thus, in Halsbury’s Laws
of England (4th ed vol 45, para 1132) it is stated:
When a period
is fixed before the expiration of which an act may not be done, the person for
whose benefit the delay is prescribed has the benefit of the entire period, and
accordingly in computing it the day from which it runs as well as the day on
which it expires must be excluded, and the act may not be done before midnight
of that day.
Next, para
1133 states:
In many
statutes, statutory rules and byelaws the intention to exclude both days and to
give the person affected a clear interval of time between the two is put beyond
all doubt by the insertion of words such as ‘clear days’ or so many days ‘at
least’.
An early
example of that proposition is to be found in R v The Justices of
Hertfordshire (1820) 3 B & Ald 581, where the court spoke of ‘perfect
intervening days’. The reason for the rule is obvious: it avoids disputes as to
the precise times of the first and subsequent acts.
Mr Clive
Newberry QC, on behalf of the respondents, if he will forgive me, found it
difficult to avoid the application of the well-known rule. Accordingly, in my
judgment, a reference to clear days in subsection (4) must be taken to be
referring to days other than the day of publication and the day of the meeting.
It is agreed that the only material days are working weekdays, that is to say,
a Saturday and Sunday are excluded. On that basis the only perfect intervening
days were Friday April 27 and Monday April 30. Section 100B(4) was accordingly
not satisfied with the consequence that the decision of May 1 was procedurally
irregular and had no effect in law.
I turn to
ground two. Mr Thom’s submission was that the decision on July 20 was not the
result of a consideration de novo, but was the result of a consideration
which started with a disposition to confirm or endorse a decision in fact made
on May 1. Mr Thom drew our attention to the presence of two members of the
subcommittee among the 23 members of the full planning committee and to a
letter from the city solicitor written on June 22 1990, which could be taken as
suggesting that there was an onus on the appellant company to displace the
decision of May 1. However, I accept the submission of Mr Newberry that the
consideration of July 20 was a consideration afresh. I take that view for four
reasons. First, the purpose of the officers’ report (which I have read) makes
it plain that there were options open to the committee. Second, the affidavit
sworn by the lord mayor of the city, who was present at the meeting on July 20,
makes plain that to which the committee was addressing itself. He has deposed
and I quote:
I wanted to
ensure that I fully understood the issues relating to the designation of the
Conservation Area so during the public debate I asked the representative of the
City Solicitor’s Section, Mr Roderick Owen Jones, to identify the issues
involved. In response to my question Mr Jones read out a Section of the Town
and Country Planning Act 1971 to the effect that the Committee had to decide
whether the area was one of special architectural interest or special historic
interest, the character or appearance of which it was desirable to preserve or
enhance. Mr Jones advised me and Committee that those were the issues which
Committee had to decide.
The third
consideration is that this was an examination by 23 people and not by two: 21
came to the matter afresh. Fourth, there was new material before the committee,
that is to say, the detailed skeletal argument by the appellant and the
submission by the appellant’s solicitor. In my judgment, it was obviously open
to the committee to refuse to endorse this previous decision by reference to
the new material or under the influence of the new minds brought to bear upon
the problem. As it is, the committee accepted the officers’ recommendation. In
my judgment, that acceptance takes effect as the declaration of a conservation
area and achieves what the subcommittee, as we now know, on May 1 failed to
achieve in law. Accordingly, I would hold that the decision of July 20 was
effective for the purpose.
I turn to the
third ground. That is the ground concerning buildings. The significance of the
point which lies behind this ground is: in a conservation area buildings cannot
be demolished without consent: see now section 74, Planning (Listed Buildings
and Conservation Areas) Act 1990. One of the objects of achieving conservation
area status in this case as advanced before the subcommittee was that it would
prevent demolition of the chalets without consent. If the chalets were not
buildings then the object is not achievable. Mr Thom submitted that the
subcommittee and the committee failed specifically to address themselves as to
whether the chalets were buildings. They have of course no need so to do if it
was obvious that they were. The word ‘building’ in the planning legislation has
always had the meaning of including ‘any structure or erection’: see now
section 336 (1) Town and Country Planning Act 1990. That meaning has been
considered by a divisional court on three occasions: Cheshire County Council
v Woodwood [1962] 2 QB 126; James v Brecon County Council
(1963) 15 P&CR 20; Barvis Ltd v Secretary of State for the
Environment (1971) 22 P&CR 710.
The Cheshire
case concerned a mobile conveyor and a hopper which were held not to be
buildings. Lord Parker CJ said at p134:
Mr Glover has
said here that, owing to the very wide definition of ‘building’ in section
119(1) of the Act, each of these pieces of equipment constitutes a building,
and, if that is right, for my part I should have thought that it would be
abundantly clear that their erection would be a building operation. But
approaching the matter as I do, it seems to me when a building is defined to
include any structure or erection and any part of a building so defined, the
Act is referring to any structure or erection which can be said to form part of
the realty, and to change the physical character of the land. In other words,
that argument carries this matter no further.
Barvis concerned a mobile tower crane with a height of 89 ft, which when
erected at the appellant’s depot ran on steel lines fixed in concrete. The
appellants contended by reference to the Cheshire case that as it was
not part of the realty its erection was not the erection of a building. The
contention was rejected by a court presided over by Lord Parker CJ. The leading
judgment was given by Bridge J, as he then was. He said at p714:
For my part,
while not wishing in the very slightest degree to question the validity or
usefulness of the tests of what amounts to development propounded in Woodward’s
case, which would be an impertinence, I think that it is important to bear in
mind that the words of the judgment have not the force of statute and also to
bear in mind the circumstances in which that appeal came before the court. The
planning authority’s complaint, as appears from the reported argument of
counsel, was that the inspector, and in due course the Minister, had
misdirected themselves in founding their conclusion that the conveyer and
hopper had not involved development of the land solely on the consideration
that they were mobile, and it was submitted, that that was the wrong test. The
judgment of my Lord, Lord Parker CJ, as I understand it, accepted that, if that
was indeed what the inspector and the Minister had done, that would have been
wrong; that the right approach was to look at the circumstances of the
particular case, and the court concluded, indeed, that that was precisely what
the Minister had done.
Tests of this
kind there suggested may be tests which it is necessary to apply to a
borderline case. There again, for my part, I think that one should avoid the
danger of finding oneself, in trying to solve one problem, involved in the
solution of another different problem which is really more difficult. We have
been referred in the course of argument in this case to some of the decided
cases in the field of the property law on what do and what do not amount to
fixtures. It would be quite wrong, in my judgment, to substitute that question,
a statutory question, to be asked under the Town and County Planning Act 1962.
. . . I am
far from convinced that if each and every one of the tests compounded in Woodward’s
case was applied to the facts of the present case, it was not open to the
Secretary of State to conclude as he did that the erection of the tower crane
on the appellants’ site had changed the physical character of the land. In my
judgment, however it is not really necessary to go so far.
I go back to
the definition of the Act itself and ask, first: was the crane, when erected a
‘building’ within the definition in section 221, and if it was, I should want a
great deal of persuasion that the erection did not amount to a building or
other operation. ‘Building’ includes any structure or erection. If, as a matter
of impression, one looks objectively at this enormous crane, it seems to me
impossible to say that it did not amount to a structure or erection.
In the light
of those observations Mr Thom accepts that incorporation in the realty is but
one factor and is not determinant either way. I think that he is right in so
accepting. I also think that he is right in accepting that the degree of permanence
is a highly material factor. Other significant factors are, size and
composition by components: see by way of analogy the discussion in Cardiff
Rating Authority v Guest Keen Baldwin’s Iron & Steel Co Ltd
[1949] 1 KB 385 at pp 402 to 403.
The chalets in
this case were not incorporated in the realty because they specifically remain
the property of the licensees. They are of varying degrees of substance and it
was pointed out to us that some of them are little more than sheds. All, or
nearly all, of them are suspended on pillars. Importantly, it can be assumed
that all were erected with a prospect of permanence. That prospect has hitherto
been fulfilled over many years. Its fulfilment has inevitably affected the
physical quality of the land upon which the pillars are placed.
In those
circumstances I cannot, for my part, see any conclusion as a matter of
objective judgment other than that these chalets were and are structures or
erections. Such a conclusion seems to me to respond to common sense and means
that these chalets are buildings for the purposes of this planning legislation.
I turn finally
to ground four which is advanced as a minor ground. The director of
development’s second report drew attention, as will have appeared, to the
declaration of a conservation area at Dungeness by Shepway District Council.
The report suggested, as will have appeared, that the reasons for the
declaration were similar to those at Holt’s Field and which related, as will
have appeared, to matters of social history. Mr Thom had us examine the
officers’ report prepared at Shepway which resulted in the declaration and
pointed out, as is indeed the case, that the dominant consideration at
Dungeness was that of preserving a fine balance between the built environment
and the natural landscape. This, of course, has nothing whatever to do with
social history. The asserted comparable is accordingly quite irrelevant.
However, it is not, in my judgment, credible that the committee’s decision
would have been different if the Dungeness case had either not been put before
them or had been properly put before them in the sense of being fully
explained. In my view, Mr Thom was right to describe this as a minor point. I
regard it as without substance.
For the
reasons which I have endeavoured to express I would dismiss this appeal. I add
this, that if I had been in favour of the appellant then the question of
discretion to remit for a further consideration would have arisen. The judge
below would not have remitted in any event. I might — I emphasise ‘might’ —
have found it difficult to share that view because since July 20 1990 the
respondent’s environmental health officer has surveyed the chalets and found
all of them to be unfit for human habitation. However, it is unnecessary in the
circumstances for me to say more upon that matter.
Agreeing, STAUGHTON
LJ said: Indeed, the one matter which has caused me concern is the question
of whether the procedural defects which affected the decision of the
subcommittee also affected the subsequent decision of the planning committee.
The only people who know the answer to that question are the councillors who
attended the
decision was that which it ought to have been, namely that it is proper that
Holt’s Field be a conservation area, or whether they merely wished to uphold
the decision of the subcommittee.
One of them,
Mr Colin Hammacott, swore an affidavit. He at the time was the Lord Mayor of
the City of Swansea. In para 5 of that he said:
I wanted to
ensure that I fully understood the issues relating to the designation of a
Conservation Area so during the public debate I asked the representative of the
City Solicitor’s Section, Mr Roderick Owen Jones, to identify the issues involved.
In response to my question Mr Jones read out a section of the Town and Country
Planning Act 1971 to the effect that the Committee had to decide whether the
area was one of special architectural interest or special historic interest,
the character or appearance of which it was desirable to preserve or enhance.
Mr Jones advised me and Committee that those were the issues which Committee
had to decide.
I made my
decision based on the advice which Mr Jones gave.
There are no
circumstances which to my mind would justify the rejection of that evidence. It
is true that there is no evidence one way or the other from other members of
the committee. But I would not on that ground feel justified in inferring that
they had any different motive.
I, too, would
dismiss this appeal.
Also agreeing,
SIR THOMAS BINGHAM MR said: I am in full agreement with Mann LJ, on all
the points argued on this appeal.
I have to
acknowledge that, on first reading these papers. I entertained some doubt whether
this land could fairly be regarded as an area of special architectural or
historic interest. It has not, however, been argued before us that it was not
in law open to the local authority to designate this area as a conservation
area save in reliance on the argument that the chalets or bungalows, which have
at all material times existed on the site, were not buildings within the
meaning of section 336 of the Town and Country Planning Act 1990. I am, for my
part, satisfied that on any common-sense test the chalets or bungalows are to
be regarded as structures or erections within the meaning of section 336 and
none of the authorities to which we have been referred, in my judgment, compels
any other conclusion. I therefore express no opinion on the question which is
not before us, whether it was in law open to the council to regard this area as
one of special architectural or historic interest and one can of course see
that this development, if lacking special architectural interest, was none the
less an unusual and apparently increasingly rare example of an interesting
social phenomenon.
I accordingly
agree that this appeal must be dismissed.
Appeal
dismissed with costs.
