Town and Country Planning Act 1971 — Listed building — Works required for preservation — Repairs notice — Compulsory purchase order when reasonable steps were not being taken to preserve building — Appellant and wife were owners and occupiers of a windmill, constructed in 1868, and adjoining mill house, and had adapted the windmill and mill house as their home — The windmill was a listed building — A repairs notice under section 115 of the 1971 Act was served on the appellant by the borough council stating that in the council’s opinion reasonable steps for preserving the building were not being taken and setting out in a schedule some 20 items of work which were considered to be necessary — This was followed by a compulsory purchase order, a public local inquiry, a recommendation from the inspector and confirmation of the order by the Secretary of State — In his decision letter the Secretary of State by inference identified six out of the 20 items as not reasonably necessary for preservation as distinct from restoration — The appellant applied under section 23 of the Acquisition of Land Act 1981 to quash the compulsory purchase order, but his application was dismissed by Mr Malcolm Pill QC (as he then was), sitting as a deputy High Court judge
issue before the Court of Appeal was whether the inclusion of the six
‘unnecessary’ items on the repairs notice rendered the latter invalid — As the
repairs notice was a condition precedent under section 115 of the 1971 Act to
the compulsory purchase order, the invalidity of the former would lead to the
quashing of the latter — It was accepted that the repairs notice could only be
held to be invalid by the application of Wednesbury principles, ie if the
council were completely mistaken as to the nature of their powers, or acted
irrationally, or took into account an irrelevant consideration — After
considering some authorities at length, the court came to the same conclusion
as the Secretary of State, namely, that the question whether works were
considered to be reasonably necessary for proper preservation was bound to be
one of fact and degree — If the council were in error in including the six
items in the repairs notice the error was one of fact and degree and did not
invalidate the notice — There was nothing to show that the council
misunderstood their functions or made an error of law or acted irrationally —
Appeal dismissed
The following
cases are referred to in this report.
Associated
Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223; [1947] 2 All ER 680, (1947) 45 LGR 635, CA
Dunkley v Evans [1981] 1 WLR 1522; [1981] 3 All ER 285
R v Hillingdon Borough Council ex parte Puhlhofer [1986] AC
484; [1986] 2 WLR 259; [1985] 3 All ER 734; [1986] 1 All ER 467; 84 LGR 385, CA
and HL
Secretary
of State for Education and Science v Tameside
Metropolitan Borough Council [1977] AC 1014; [1976] 3 WLR 641; [1976] 3 All
ER 665; (1976) 75 LGR 190, CA and HL
Thames
Water Authority v Elmbridge Borough Council
[1983] QB 570; [1983] 2 WLR 744; [1983] 1 All ER 836; (1983) 81 LGR 678; [1983]
JPL 470, CA
Wandsworth
London Borough Council v Winder [1985] AC
461; [1984] 3 WLR 1254; [1984] 3 All ER 976; (1984) 83 LGR 143, HL
This was an
appeal by Mr Tom Robbins from the refusal of Mr Malcolm Pill QC (as he then
was), sitting as a deputy judge of the Queen’s Bench Division, to quash a
compulsory purchase order made by Ashford Borough Council in respect of the
property of Mr Robbins and his wife, known as Willesborough Windmill, Mill
Lane, Ashford, Kent.
Michael Barnes
QC and Richard Hayward (instructed by Edwin Coe & Calder Woods, agents for
Roderick O’Driscoll & Partners, of Maidstone) appeared on behalf of the
appellant; Jeremy Sullivan QC and Nigel Pleming (instructed by the Treasury
Solicitor) represented the first respondent (the Secretary of State); Anthony
Porten QC and Mark Lowe (instructed by Sharpe Pritchard & Co, agents for A
E Drew, solicitor to Ashford Borough Council) represented the second respondent
(the borough council).
Giving the
first judgment at the invitation of Slade LJ, GLIDEWELL LJ said: The appellant,
Mr Robbins, and his wife are the owners and occupiers of a windmill and an
adjoining mill house together with some 920m2 of land, known as
Willesborough Windmill, Mill Lane, Ashford, Kent. Mr and Mrs Robbins purchased
the windmill in 1969, with planning permission to convert it to use as a
dwelling-house. They have since adapted the mill for that purpose and occupy it
and the mill house as their home.
The mill,
which was constructed in 1868, is of the kind known as a smock mill. It
consists of a two-storeyed square brick base, above which is an octagonal mill
constructed of timber framing covered with weather boarding. The mill itself —
that is to say, above the brick base — contains four further storeys, the whole
being surmounted by a cap which, at least in the past, could be turned so as to
cause the sweeps, or sails, to face the wind. Around the base of the wooden
mill, above the second storey of the brick structure, there was formerly a
platform, or catwalk, with a railing, much of which has now been removed.
Before saying
anything more about the facts I think it would be helpful to consider the
legislation relevant to the problem which arises in this appeal. By section
54(1) of the Town and Country Planning Act 1971, the Secretary of State is
required to compile lists of buildings of special architectural or historic
interest. By subsection (9) of that section a building for the time being
included in such a list is called a ‘listed building’. The list describes
buildings in three categories which, for reasons that I for one have never
understood, are not called I, II and III but are called I, II* and II. By
section 114 of the 1971 Act, quoting subsection (1):
Where it
appears to the Secretary of State, in the case of a building to which this
section applies, that reasonable steps are not being taken for properly
preserving it, the Secretary of State may authorise the council of the . . .
county district in which the building is situated . . . to acquire compulsorily
under this section the building and any land comprising or contiguous or
adjacent to it which appears to the Secretary of State to be required for
preserving the building or its amenities, or for affording access to it, or for
its proper control or management.
By subsection
(3):
This section
applies to any listed building, not being an excepted building as defined in
section 58(2) of this Act.
And this
building is not an excepted building.
By subsection
(4):
The Secretary
of State shall not make or confirm a compulsory purchase order for the
acquisition of any building by virtue of this section unless he is satisfied
that it is expedient to make provision for the preservation of the building and
to authorise its compulsory acquisition for that purpose.
By subsection
(5), the Acquisition of Land Act 1981 shall apply to the compulsory acquisition
of land under this section.
Subsection (6)
reads:
Any person
having an interest in a building which it is proposed to acquire compulsorily
under this section may, within twenty-eight days after the service of the
notice required by section 12 of the Acquisition of Land Act 1981, apply to a
magistrates’ court acting for the petty sessions area within which the building
is situated for an order staying further proceedings on the compulsory purchase
order; and, if the court is satisfied that reasonable steps have been taken for
properly preserving the building, the court shall make an order accordingly.
Subsection (7)
provides for an appeal from the magistrates’ court to the Crown Court.
By section
115(1) the compulsory purchase of a building under section 114 of the Act shall
not be started by a council
unless at
least two months previously they have served on the owner of the building, and
not withdrawn, a notice under this section (in this section referred to as a
‘repairs notice’) —
(a) specifying the works which they consider
reasonably necessary for the proper preservation of the building; and
(b) explaining the effect of sections 114 to 117
of this Act.
By subsection
(4):
For the
purposes of this section a compulsory acquisition is started when the council .
. . serve the notice required by section 12 of the Acquisition of Land Act
1981.
Turning to the
1981 Act, section 12(1) requires the acquiring authority to:
serve on every
owner, lessee and occupier (except tenants for a month or any period less than
a month) of any land comprised in the order a notice in the prescribed form —
(a) stating the effect of the order,
(b) stating that it is about to be submitted for
confirmation, and
(c) specifying the time (not being less than
twenty-one days from service of the notice) within which, and the manner in
which, objections to the order can be made.
By section
23(1) of the 1981 Act:
If any person
aggrieved by a compulsory purchase order desires to question the validity
thereof, or of any provision contained therein, on the ground that the
authorisation of a compulsory purchase thereby granted is not empowered to be
granted under this Act or any such enactment as is mentioned in section 1(1) of
this Act, he may make an application to the High Court.
By section
24(2):
If on the
application the court is satisfied that —
(a) the authorisation granted by the compulsory
purchase order is not empowered to be granted under this Act or any such
enactment as is mentioned in section 1(1) of this Act . . .
the court may quash the compulsory
purchase order or any provision contained therein . . . either generally or in
so far as it affects any property of the applicant.
Section 114 of
the 1971 Act is an enactment mentioned in section 1(1) of the Act.
So the
procedure for making a compulsory purchase order under section 114 has to start
with a repairs notice under section 115 (1); then, at least two months later,
the acquiring authority, if it be a district council, serves notice under
section 12 of the 1981 Act of the making of the compulsory purchase order, and
the person upon whom it is served, the owner or occupier, has two ways of
challenging the compulsory purchase order, by way of application to the
magistrates’ court under section 114 or by objecting to the confirmation to the
Secretary of State for the Environment. Indeed, those remedies are not
alternatives; they can, at least theoretically, be cumulative. If there is an
objection to the Secretary of State, he will hold an inquiry into the objection
or objections and give consideration to the report of his inspector before he
decides whether or not to confirm the compulsory purchase order.
I turn back to
the facts. Willesborough Windmill was included in a list of buildings of
special architectural or historic interest which was published by the then
Minister of Local Government and Planning on September 24 1951. It is described
in the schedule accompanying the notice of that listing as follows:
Willesborough
Windmill. Built in 1868 by John Hill of Ashford, Mill-wright. Rectangular brick
base of 2 storeys. Above this an octagonal smock mill of white weather-boarding
with a platform and railing round above the base. Sash windows with glazing
bars intact. Hooded cap. Fantail and sweeps partly missing. The Windmill is
still worked as a mill but not by wind. Unusually good condition.
As a matter of
history, though it is not relevant to the matters arising on this appeal, about
a year later, on October 4 1952, a preservation order was made, the
Willesborough Windmill, Ashford Preservation Order 1952, made under section 29
of the Town and Country Planning Act 1947; that was confirmed by the minister.
The inspector
who held the inquiry into objections by Mr Robbins to the compulsory purchase
order which, as I shall say in a moment, was made in respect of this windmill,
made the following relevant findings of fact in para 136 of his report to the
Secretary of State:
The windmill
the subject of the order was built in 1868; it was last worked in 1938; it was
included in grade II in a provisional list of buildings of architectural or
historic interest in December 1949 and on the statutory list of buildings of
special architectural or historic interest on 24 September 1951; a building preservation
order was made at some time between 1951 and 1969; the building was upgraded to
grade II* in February 1981.
Then he
records accurately that a repairs notice under section 115 of the Act was
served on October 7 1983. That notice, which was served upon Mr Robbins by the
Ashford Borough Council, records that he is the owner of the windmill and that
it is a listed building, and it reads as follows:
NOW THEREFORE
the Ashford Borough Council (hereinafter called ‘the Council’) HEREBY GIVE YOU
NOTICE pursuant to the provisions of Section 115 of the Act that:
(1) The Council consider that reasonable steps
are not being taken for properly preserving the said building and that the
works specified in the Schedule hereto (hereinafter called ‘the said works’)
are reasonably necessary for the proper preservation of the said building.
(2) If the said works are not carried out within
two months from the service of this notice the Council may exercise their
powers under Section 114 of the Act to begin proceedings for the compulsory
purchase of the said building . . .
I do not need
to read any more of the body of the notice; it was accompanied by an
identification plan and a schedule listing some 20 different items of repair,
which are described as being ‘works considered to be reasonably necessary for
the proper preservation of the building’.
A year later —
substantially more than two months, of course — on October 15 1984 the borough
council made a compulsory purchase order under section 114 of the 1971 Act and
on that date served notice of the making of the order upon Mr and Mrs Robbins.
They did not take the opportunity of making an application to the magistrates’
court under section 114(6) of the Act, but they did object to the Secretary of
State under the Acquisition of Land Act 1981; he duly held an inquiry in
December 1985 and the inspector reported on January 10 1986. I have already
read a few passages from his report. At the conclusion of the report, as is
commonplace in such reports, the inspector sets out his findings of fact which,
apart from the matters I have read, include the following:
As compared
with the statutory list description the platform and railing or catwalk of the
windmill are missing, one of the sash windows is boarded over, the fantail has been
largely removed and all of the sweeps are missing apart from the inner stock,
the straps for the outer stock and the patent sail gear; parts of the former
balustrading and of the former front stock are lying on the north-west side of
the building.
Then he
describes the requirements of the repairs notice as follows:
The
requirements of the repairs notice include the general repair and or renewal of
the principal structural members, including at least 3 cant posts, a horizontal
beam at first floor level and the breast beam under the windshaft, the
stripping and renewal of the weatherboarding, the renewal of the fantail,
stocks and catwalk and the treatment of the timbers against wood-boring
insects.
The building
was acquired by the present owner in August 1969; at that time the damage in
the principals (cant posts) and weatherboarding were pointed out; restoration
was strongly recommended; the building was acquired with outline planning
permission for conversion into a dwellinghouse; works of adaptation and
improvement to form a dwelling have been carried out.
He then
describes the way in which the building is occupied as a house, and then says:
Work carried
out by the owner to the mill structure includes replacement of 5 weatherboards
at the top of the cap, removal of the catwalk, repair of floorboarding, removal
of fantail, renewal of 3 window frames, shoring up of second floor horizontal
beam, removal of front stock, scraping and painting of about 1/5 of the
weatherboarding, repair of one other window, replacement of some
weatherboarding, stopping of some leaks with zinc patching and wood-boring
treatment.
There is one
other finding:
The council’s
long term aim is the restoration of the mill as a working museum with the mill
remaining in a related residential use; detailed arrangements for future
control and management have not yet been considered; another mill at Woodchurch
was acquired by the council in 1977-8.
And he goes on
to say how that mill had been dealt with.
After the
findings of fact the inspector set out his conclusions in numbered paragraphs;
I think it necessary to read some of them.
Para 138 says:
As to the
meaning of ‘proper preservation of the building’ I would say that in the
absence of a statutory definition the phrase should be construed in its
ordinary sense as meaning keeping the building safe from injury or destruction.
In the case of a listed building it is in my view important that its character
is preserved since that is the matter with which control of works for the
demolition, alteration or extension of listed buildings is concerned under
section 55 of the Act. To my mind it is not helpful to look at the state of a
building at any particular time — for example the date of original listing, the
confirmation of a building preservation order, the date of acquisition by a
particular purchaser or the date of service of a repairs notice. It might well
be that at any of those dates a building might have accretions which detract
from its character or be lacking in certain features that may be essential to
its character and which ought to be removed or restored (as the case may be) if
the building is to be properly preserved.
In the
present case the windmill fortunately retains a great deal of its internal mill
machinery. In my view the interior spaces of the mill body, although adapted
for domestic use and cluttered to a certain extent by workshop equipment and
storage, retain to an impressive degree the character which the working
windmill must have once had. Externally however I consider that the essential
character of the building has been seriously compromised by the loss of the
front stock and the removal of the catwalk and fantail. I believe that it was
quite appropriate for the council to include the restoration of those items, as
well as the repair and/or renewal of important structural members, in the
repairs notice. In my opinion the matters for inclusion in the notice are
largely for the council to consider and it is not invalidated by the inclusion
within it of works considered by others not to be reasonably necessary for the
proper preservation of the building.
Then, at the
end of para 140, he says:
The matters
that I believe should be considered by the Secretary of State in deciding
whether or not to confirm the order in this case are firstly whether reasonable
steps are being taken for properly preserving the building, secondly whether it
is expedient to make provision for the preservation of the building and thirdly
whether it is expedient to authorise compulsory acquisition for that purpose.
In paras 141
and 142 he says:
On the first
matter it seems to me that the owner’s attitude to the conservation of the
existing fabric and to the importance of keeping the building wind and
weatherproof must command respect, particularly during a period when he appears
to have had limited means available. It is in my view understandable that the
priority seems to have been to make the building a comfortable home and
workplace. Nevertheless there is little evidence to show that any significant
repair work has been undertaken to the mill body during that time. The only
major tasks have apparently been the removal of features that have deteriorated
and become dangerous, without any firm proposals for their replacement. Even
during the 2 years since the service of the repairs notice the steps taken can
in my opinion only be described as preliminaries for the eventual preservation
of the building rather than as substantial works for its proper preservation.
It may well
be that the owner’s distaste for officialdom and reluctance to become indebted
to others have prevented him from taking advantage of financial assistance that
could have been made available. For whatever reasons he appears to be unable to
commit himself to a firm programme of works for properly preserving the
building without assurance of outside aid. In the present circumstances I do
not consider that any reasonable steps are being taken towards achieving that
aim.
I miss out
para 143; in para 144 he says:
On the final
matter I find it difficult to believe that any positive steps towards the
proper preservation of the building will be taken while it remains in its
present ownership unless there is a substantial injection of public funds. Over
the last 10 years or so the owner has shown himself unwilling to accept the
terms on which grant aid might be made available. It is to my mind extremely
unlikely that he would now be prepared to enter into any agreement with the
council or any other body whereby the necessary work could be carried out and
no such indication was given at the inquiry. In the circumstances I see no
alternative to compulsory acquisition so as to ensure that preservation does
take place.
Then, in para
147, he says:
My conclusion
is that no reasonable steps are being taken for properly preserving the
building and that it is expedient to make provision for its preservation and to
authorise compulsory acquisition for that purpose.
In para 148 he
recommends that the Ashford Borough Council (Willesborough Windmill) Compulsory
Purchase Order 1984 be confirmed.
The Secretary
of State duly considered that report. In a decision letter dated December 16
1986 he set out the whole of the inspector’s conclusions, large parts of which
I have just read, and in para 5 he records the following:
Representations
were made to the effect that:-
(i) Some of the works included in the repairs
notice were appropriate to the restoration of the building rather than to its
preservation. The Secretary of State takes the view that the question whether
works are properly considered to be reasonably necessary for the proper
preservation of a building is bound, to a certain extent, to be one of fact and
degree. He agrees with the inspector’s view that in certain instances works
which might normally be considered more appropriate to restoration can, in
other circumstances, be regarded as necessary for the proper preservation of a
building. In the Secretary of State’s view, the repairs required to preserve the
building contained in the council’s repairs notice do not include such items as
would invalidate the notice although the Secretary of State accepts that had
all, or most, or even a substantial amount of the works required by items 1-12,
14 and 18 of the schedule to the notice been carried out, he would have been
satisfied that reasonable steps were being taken for properly preserving the
building;
Then, in para
7:
The
inspector’s findings of fact and conclusions have been carefully considered.
The inspector’s conclusion that the building is a particularly important one
which warrants every effort being made to preserve it is accepted, as is also
his conclusion that no reasonable steps are being taken for properly preserving
it.
In para 9, he
says:
The Secretary
of State accepts the inspector’s findings of fact and his recommendation and he
is satisfied that it is expedient to make provision for the preservation of the
building and to authorise its compulsory purchase for that purpose. He has
accordingly decided to confirm the order without modification.
In para 5(i)
is the passage in which the Secretary of State says that if certain of the
works in the repairs notice had been carried out he would have been satisfied
that reasonable steps were being taken for properly preserving the building.
The works to which he there referred were 14 of the 20 items contained in the
schedule to the repairs notice. Those not so described — in other words, the
other six, were: no 13, which related to the windshaft and the breast beam and
the replacement of the windshaft; no 15, which related to renewing the fantail
stage; no 16, which referred to the rebuilding of the fantail gear and the
renewal of the fantail blades; no 17, which referred to the refurbishing of the
brake mechanism and other mechanism within the cap of the mill; no 19, which
referred to the renewing of the stocks and whips of the sweeps, without fitting
framework or shutters; and no 20, referring to the renewal of the catwalk
around the body of the mill where the original is defective or missing,
together with decking and handrails.
Mr Robbins, as
he was entitled to under section 23 of the Acquisition of Land Act 1981,
applied to the High Court to quash the compulsory purchase order on the ground
that the authorisation of the order was not required to be granted by the 1971
Act. The application was heard on November 13 1987 by Mr Malcolm Pill (as he
then was) sitting as an additional judge of the Queen’s Bench Division. On p 4
of the transcript of his judgment, having dealt with one ground which does not
arise in this appeal, he said at B:
I turn to the
other ground of challenge. The council are required in their repairs notice
under section 115 of the Act to specify the works which they consider
reasonably necessary for the proper preservation of the building. Section 114
also refers to the preservation of the building and to reasonable steps for
‘properly preserving’ it. Mr Hayward submits that a repairs notice is defective
and invalid if it specifies works of restoration in addition to works of
preservation. Only the latter are covered by sections 114 and 115. He accepts
that works of repair may properly be included to maintain the existing state of
the building and to prevent further damage or deterioration. Indeed, the
expression ‘repairs notice’ is used for the documents specifying ‘the works’.
Mr Hayward
submits that it is plain on the evidence before the Secretary of State that
substantial works of restoration were included in the notice.Section
115 was not strictly complied with and the compulsory acquisition based upon
the notice should be quashed. He submits that the expressions ‘preservation’
and ‘proper preservation’ used in the Act do not include works of restoration
designed to restore the building to some previous state or condition.
At p 7,
between F and G, he said:
In his
findings of fact, the inspector described the council’s long-term aim as ‘the
restoration of the mill as a working museum with the mill house remaining in
residential use’. The Secretary of State, in his decision letter, expressed the
view ‘that the question whether works are properly considered to be reasonably
necessary for the proper preservation of a building is bound, to a certain
extent, to be one of fact and degree’. With that, I agree. He added that
‘repairs required to preserve the building contained in the council’s repairs
notice do not include such items as would invalidate the notice’. (He added a
rider, to which I shall refer later.)
I make
considerable allowance for the discretion which the council properly have in
deciding what works are appropriate as works of preservation and I make further
allowances for the fact that the court, exercising its present jurisdiction,
should be slow to put items in the repairs notice into categories in the
absence of specific findings by the inspector as to categories. Having made
those allowances, I am unable to agree with the Secretary of State’s statement.
I have come to the conclusion that section 114 does not empower the Secretary of
State to require an owner in all circumstances to restore a listed building to
its condition at the time it was listed or to its condition in its heyday. Had
that been the intention of the section, the power would have been stated in
different terms. The words ‘properly preserved’ are not, in my judgment,
capable of an interpretation so broad as to impose an obligation in all
circumstances to restore a building, with all its features of architectural and
historic interest, to a condition in which it may not have been for very many
years, and by whatever manner, and to whatever extent, damage or destruction
have occurred. I accept of course, the importance attached to preserving listed
buildings and I acknowledge the difficulty which arises if I am right in defining
the limits of the power. Regard must be had to what works reasonably come
within the description ‘proper preservation’ in particular circumstances and
notices which set out to require restoration to the listed or some earlier
condition of the building, without regard to the circumstances, may be beyond
the powers of the Act. I would add that if prompt action is taken by local
authorities when deterioration occurs, that will obviously make it easier for
them to claim that works required are works of preservation. I consider that
had Parliament intended to make all such notices lawful and thereby to impose
the potentially most onerous obligation upon owners or purchasers of listed
buildings always to restore them to that extent or face compulsory purchase,
the language used would have been different and more comprehensive. The fact
that the Secretary of State has a discretion at a later stage in the procedure
does not alter that, in my view. On the facts of the present case, I have
concluded that not only did the council apply too broad a test in deciding what
to put in the repairs notice, but that several of the items in fact included,
as a result of applying that test, cannot in law be regarded as works for the
proper preservation of the building in the circumstances. In reaching that
conclusion, I have had regard to the material before the Secretary of State
already mentioned.
I cannot,
however, agree with Mr Hayward that on the evidence, it is appropriate to
conclude at this stage that all items 9 to 20 in the notice are beyond the
powers of the Act. I have already referred to the council’s submissions to the
inspector in para 64 of his report. Items 13, 15, 16, 17 and 19 were necessary,
they submitted ‘to enable the mill to become a complete potentially working
mill.’ The attempt demonstrated in this
and other parts of the report to restore the mill in effect to that condition,
bearing in mind that it had not been worked since 1938, was, in my judgment,
beyond the powers of the Act.
In the result,
although not in his approach to the law, I take the same view of the
categorisation of items as did the Secretary of State. He accepts at para 5(i)
of the decision letter ‘that had all, or most, or even a substantial amount of
the works required by items 1-12, 14 and 18 of the schedule to the notice been
carried out, he would have been satisfied that reasonable steps were being
taken for properly preserving the building’.
Having found
that the repairs notice was defective, I have to consider whether the compulsory
purchase order should be quashed.
The judge’s
conclusion in relation to that matter is to be found on p 15 of the transcript,
where he says:
The
inspector’s findings were accepted by the Secretary of State and I have to
accept them for present purposes. The lack of repair described appears to have
related not only to those items under challenge by Mr Robbins, but to those
which were accepted as lawful. On the concrete state of the facts, it does not
appear to me to be reasonable to fail to comply over a substantial period, on
the inspector’s finding, with items admitted to be lawful. It would not be
reasonable in this context to do nothing, or only very little, on the ground
that some items need not be done at all. Further, when a repairs notice is served,
subsequent proceedings such as those which have reached this court may well be
protracted. There is an obvious public interest, where listed buildings are
concerned, in expecting owners to make reasonable efforts to comply with those
parts of repairs notices which they know to require work which can lawfully be
required.
In all the
circumstances, I have come to the conclusion that I should not exercise my
discretion to quash the compulsory purchase order. The application is
dismissed.
Against that
decision Mr Robbins now appeals and the Secretary of State has filed a notice
of cross-appeal.
Mr Barnes, for
Mr Robbins, argues essentially four points. I express them as follows:
(i) That works for the
preservation of a building are works necessary to prevent the building
deteriorating further or falling into further disrepair, but do not include
works of restoration.
(ii) That the works specified
in the repairs notice in this case included works of restoration, not necessary
for the preservation of the building.
(iii) That the repairs notice
was therefore invalid; and
(iv) That the necessary
precondition for the compulsory purchase order was therefore not fulfilled, and
the order was thus not empowered to be granted by the 1971 Act.
I shall consider
those submissions in that order.
The first
question is thus: what is the meaning of the phrase ‘works reasonably necessary
for the proper preservation of the building’?
Mr Barnes accepts that such works may include works of repair; for
example, to mend a hole in a roof, which, if not repaired, would result in yet
further deterioration of the building. But they may not include, he submits,
any works which are not necessary to preserve the building in its condition at
the date of the service of the repairs notice. If I turn back to para 5(i) of
the Secretary of State’s decision letter, one sees that his view was as
follows:
The Secretary
of State takes the view that the question whether works are properly considered
to be reasonably necessary for the proper preservation of a building is bound,
to a certain extent, to be one of fact and degree. He agrees with the
inspector’s view that in certain instances works which might normally be
considered more appropriate to restoration can, in other circumstances, be
regarded as necessary for the proper preservation of a building.
Mr Sullivan,
appearing for the Secretary of State, argues that this is a correct
interpretation, and for myself I agree with that. In my view, it is appropriate
to remember that the building being listed is one which is said to be of
special architectural or historic importance, and what is significant is that
it should be preserved and proper steps taken for its preservation as a
building of those types and importance. I do not accept that the question
should be looked at only as at the date of the service of the repairs notice.
The works required are those reasonably necessary for the proper preservation
of a building of special architectural or historic importance. Whether such
works include the replacement of parts of the building which have been removed
at the date of the repairs notice — for example, in this case the catwalk — is
a matter of fact and degree, first for the council when they draw up and serve
the repairs notice, and then again for the Secretary of State when he has to
decide whether to confirm the compulsory purchase order. It is, in my view,
unnecessary and inappropriate to say that what is required is to restore the
building to the condition in which it was at some particular earlier date. It
may, however, well be that if a council sought to include in a repairs notice
works which require the restoration of some feature which had already
disappeared, say, at the date of listing, then the Secretary of State might
well conclude — indeed, I believe probably would conclude — that that was not
reasonably required and was not a reasonable step, and thus the failure to
carry out that particular work would not be a proper basis for the making of a
compulsory purchase order.
That brings me
to the second of Mr Barnes’ submissions, that the works specified in the
repairs notice included works of restoration. It is apparent that the Secretary
of State took the view, with which the learned judge agreed, that if 14 of the
items on the council’s list had been carried out he would have been satisfied
that reasonable steps were being taken for properly preserving the building. It
follows that he was not satisfied that the other six works in the schedule to
the repairs notice were reasonably necessary for that purpose. All, or most, of
the 14 which he inferentially held were necessary are works which I believe Mr
Barnes, or his client, would accept as being within their restricted definition
of preservation. As I have said, I believe that restricted definition to be too
narrow. Be that as it may, the decision that six of the works were not
reasonably necessary for the proper preservation of the building was, as I see
it, a decision as a matter of fact and degree by the Secretary of State in relation
to the compulsory purchase order.
That brings me
to Mr Barnes’ third point, which raises what I
as: what effect, if any, does the inclusion of the six unnecessary items have
on the repairs notice?
Before I come
to say something about that, what I suppose can properly be described as a
preliminary point arises in relation to it, though if indeed it is a
preliminary point it raised its head only at the very end of the hearing this
morning. That point is this. Can an objection to the validity of the repairs
notice properly form a ground of objection to the confirmation of a compulsory
purchase order or the basis for an application to this court to quash a
compulsory purchase order? Mr Pleming
and Mr Porten, respectively for the Secretary of State and the council, argue
that it cannot. They submit that the proper remedy for someone who wishes to
challenge the validity of a repairs notice, or of some of the items contained
in such a notice, is that he should properly do so by way of an application for
judicial review under Ord 53 of the Rules of the Supreme Court.
Mr Barnes in
reply relies on the decision of the House of Lords in Wandsworth London
Borough Council v Winder [1985] AC 461 for the proposition that this
point may properly be taken in opposition to the compulsory purchase order. On
this aspect of the matter I agree with Mr Barnes. In support of his desire to
retain ownership of his own property Mr Robbins is, in my view, perfectly
entitled to raise a point as to the validity of the repairs notice by way of
objection. I also note that although this point appears to have played
relatively little part in the argument before the learned judge, it was
extensively canvassed at the inquiry and is to be found recorded in the
inspector’s report.
So that brings
me to the third important question: Was the repairs notice rendered invalid by
the inclusion of the six items which the Secretary of State has inferentially
rejected? The decision as to what items
were to be included in the repairs notice was clearly one of discretion for the
council. It is trite law that, even if the council erred in some respect in
exercising that discretion, that would not of itself affect the validity of the
notice. A notice can only be held invalid, so that it can be said that no valid
notice has ever been served, on what are familiarly called Wednesbury
grounds; that is to say, if the council were completely mistaken as to the
nature of their powers, or acted irrationally, or took into account an
irrelevant consideration. Mr Barnes accepts that this is correct; indeed, it is
the basis of an amendment to his notice of appeal, upon which he has
essentially based his submission to us.
That amendment
adds the ground 2A to the notice of appeal, which reads as follows:
That the
purported repairs notice was void in that:
(i) the Second Respondents had misdirected
themselves in law, or asked themselves the wrong question, when deciding what
the notice was to contain since they considered that preservation included
restoration;
(ii) the Second Respondents in deciding what the
notice was to contain had taken into account an immaterial consideration,
namely that the works required by six of the twenty items in the Schedule to
the notice were works of preservation whereas they were in truth works of
restoration;
(iii) the Second Respondents acted irrationally in
concluding that six of the said twenty items were works of preservation.
In support of
his submission, Mr Barnes refers us to the decision of the House of Lords in Secretary
of State for Education and Science v Tameside Metropolitan Borough
Council [1977] AC 1014. Lord Wilberforce, in his speech on p 1047(C), said
in a paragraph numbered (2):
The section
is framed in a ‘subjective’ form — if the Secretary of State ‘is satisfied’.
This form of section is quite well known, and at first sight might seem to
exclude judicial review. Sections in this form may, no doubt, exclude judicial
review on what is or has become a matter of pure judgment. But I do not think
that they go further than that. If a judgment requires, before it can be made,
the existence of some facts, then, although the evaluation of those facts is
for the Secretary of State alone, the court must inquire whether those facts
exist, and have been taken into account, whether the judgment has been made
upon a proper self-direction as to those facts, whether the judgment has not
been made upon other facts which ought not to have been taken into account. If
these requirements are not met, then the exercise of judgment, however bona
fide it may be, becomes capable of challenge.
Lord Diplock,
at p 1064E, said:
My Lords, in
public law ‘unreasonable’ as descriptive of the way in which a public authority
has purported to exercise a discretion vested in it by statute has become a
term of legal art. To fall within this expression it must be conduct which no
sensible authority acting with due appreciation of its responsibilities would
have decided to adopt.
The very
concept of administrative discretion involves a right to choose between more
than one possible course of action upon which there is room for reasonable
people to hold differing opinions as to which is to be preferred. It has from
beginning to end of these proceedings been properly conceded by counsel for the
Secretary of State that his own strong preference and that of the government of
which he is a member for non-selective entry to all secondary schools is not of
itself a ground upon which he could be satisfied that the Tameside council
would be acting unreasonably if they gave effect to their contrary preference
for the retention of selective entry to the five grammar schools in their area.
What he had to consider was whether the way in which they proposed to give
effect to that preference would, in the light of the circumstances as they
existed on June 11 1976 involve such interference with the provision of
efficient instruction and training in secondary schools in their area that no
sensible authority acting with due appreciation of its responsibilities under
the Act could have decided to adopt the course which the Tameside council were
then proposing.
It was for
the Secretary of State to decide that. It is not for any court of law to
substitute its own opinion for his; but it is for a court of law to determine
whether it has been established that in reaching his decision unfavourable to
the council he had directed himself properly in law and had in consequence
taken into consideration the matters which upon the true construction of the
Act he ought to have considered and excluded from his consideration matters
that were irrelevant to what he had to consider: see Associated Provincial
Picture Houses Ltd v Wednesbury Corporation. Or, put more
compendiously, the question for the court is, did the Secretary of State ask
himself the right question and take reasonable steps to acquaint himself with
the relevant information to enable him to answer it correctly?
Lord Salmon
echoed the last passage on p 1072B, when he said:
I find it
impossible, however, to accept that any reasonable man could have been
satisfied that no reasonable authority on the evidence could take the view that
a satisfactory selection of candidates for the 240 places in the grammar
schools could have been made between June 11 and September 1 1976. Therefore
either the Secretary of State must have erred in law by misconstruing section
68 and failing to ask himself the right question or he asked himself that
question and answered it ‘no’ without any valid ground for doing so.
Mr Barnes also
referred us to R v Hillingdon London Borough Council, ex parte
Puhlhofer [1986] AC 484. He refers to a very short dictum in this case from
the speech of Lord Brightman, with whose speech all the others of their
lordships agreed; this passage, at p 518D, reads as follows:
The ground
upon which the courts will review the exercise of an administrative discretion
is abuse of power — eg bad faith, a mistake in construing the limits of the
power, a procedural irregularity, or unreasonableness in the Wednesbury
sense — unreasonableness verging on an absurdity: see the speech of Lord
Scarman in R v Secretary of State for the Environment, ex parte
Nottinghamshire County Council. Where the existence or non-existence of a
fact is left to the judgment and discretion of a public body and that fact
involves a broad spectrum ranging from the obvious to the debatable to the just
conceivable, it is the duty of the court to leave the decision of that fact to
the public body to whom Parliament has entrusted the decision-making power save
in a case where it is obvious that the public body, consciously or
unconsciously, are acting perversely.
Mr Sullivan,
for the Secretary of State, and Mr Porten for the borough council, submit that
there is no evidence that the borough council asked themselves the wrong
question; at worst, they argue, the council placed too wide an interpretation
on what could properly constitute preservation. They also submit to us that the
parts of the schedule to the repairs notice which required works which the
Secretary of State has found not to be reasonably necessary can be severed from
the remainder, leaving the remainder a valid notice. In this respect we were
referred to the passages in the decision of this court in Thames Water
Authority v Elmbridge Borough Council [1983] QB 570. In that case
the council appropriated land formerly occupied as a sewage disposal works for
planning purposes. The resolution to appropriate the land wrongly included a
small area of land still occupied by a pumping station. The question was: was
the resolution wholly invalid or did it remain valid in relation to the
remainder of the land? At p 576 Dunn LJ
said:
That, however,
is not the end of the matter. Mr Mottershead, for the water authority,
submitted that the court can only sever when the authors of the document have
themselves so framed the document that the part to be discarded is already
segregated on the face of the document. The question of severance only arises
if there is something which, on a perusal of the document itself, is capable of
severance; and the court is not entitled to look at the factual situation on
the ground, but is confined to the four corners of the document. He submitted
that there was no case, whether concerned with contracts in restraint of trade,
statutory orders, byelaws or planning permission subject to conditions, in
which the court has severed the bad provisions from the good unless the bad
provisions appear in the documents themselves. He said that the court would not
consider severance until the
known as the ‘blue pencil test’.
In my view
this is a very narrow point. Mr Mottershead conceded that if the green land
had, on July 17 1973, not been in the ownership of the urban district council,
then an appropriation of the blue land, excluding the green land, would have
been valid, notwithstanding that the green land was not mentioned in the
resolution. But he submitted that as the green land was in the ownership of the
urban district council, and they had the power to appropriate it by closing
down the pumping station, the whole appropriation of the blue land was invalid.
This, he said, is because the green land was not identified in the resolution
and therefore, applying the blue pencil test, there was nothing to sever.
It is true
that in restraint of trade cases covenants have apparently been severed only
when they contain a narrower as well as a wider limitation. But this is in the
context that prima facie all covenants in restraint of trade are unlawful and
void, and the doctrine of severance has been kept within strict limits. I agree
with the judge that the planning cases are of little help to us in our problem.
Kingsway Investments (Kent) Ltd v Kent County Council, in this
court [1969] 2 QB 332, and in the House of Lords [1971] AC 72, is a good
example of a case in which the question was whether an ultra vires condition
vitiated the whole planning permission, or whether it could be severed so as to
preserve the planning permission itself, shorn of the ultra vires condition. I
am, however, helped by a passage in the speech of Lord Reid where he said, at p
90:
‘There is a surprising dearth of authority on this matter, for it
may affect many classes of case besides those relating to town and country
planning — cases where an authority has granted a licence or permission coupled
with an ultra vires condition or limitation. The question of severance has
often arisen with regard to contracts. But there the position is quite
different. It is a general rule that the court will not remake a contract and
to strike out one term and leave the rest in operation is remaking the
contract. So it is not surprising that there can only be severance of a
contract in exceptional circumstances. But that is not so with regard to a
unilateral licence or permission.’
It is
important to remember that we are here concerned not with private law but with
public law. Public law is not concerned with rights and obligations so much as
powers, and the cases show that the courts have adopted a wider approach to the
question of severance in public law than they have in private law. Potato
Marketing Board v Merricks [1958] 2 QB 316 was a public law case.
Devlin J said, at p 333:
‘There does not appear to be any authority on the point whether a
demand is in such circumstances invalidated. I must, therefore, find the right
answer as a matter of principle, and I think that the principle to be applied
is that which is applied to all classes of documents which are partly good and
partly bad because, for example, they are in part illegal or ultra vires. In
all these cases, the question to be asked is whether the bad part can be
effectively severed from the good.’
It was said by
Mr Mottershead that in that case the bad part appeared in the document itself,
but that was not the ratio of the decision, and the statement of Devlin J is
quite general in its terms and was approved expressly by Lord Reid in Kingsway
Investments (Kent) Ltd v Kent County Council [1971] AC 72, 91. I
adopt it as an accurate statement, certainly so far as public law is concerned.
Dunkley v Evans [1981] 1 WLR 1522 is an important decision of the
Divisional Court which was not cited to the judge because at the time of his
judgment it had not been decided. The case arose out of a prosecution in
relation to herring fishing in a prohibited area within British fishing limits,
contrary to a statutory order. The defendants admitted that they had fished in
an area over which the Minister had power to make an order under the relevant
Act, but contended that the order itself was invalid because the prohibited area
included certain waters off Northern Ireland over which the ministerial power
to make orders was excluded by a section of the principal Act. The justices
accepted this submission and dismissed the informations, and on appeal to the
Divisional Court the appeal was allowed. In the course of his judgment Ormrod
LJ said, at pp 1524-1525:
‘The general principle is stated in Halsbury’s Laws of England,
4th ed, vol 1 (1973), para 26: ‘Unless the invalid part is inextricably
interconnected with the valid, a court is entitled to set aside or disregard
the invalid part, leaving the rest intact.’
The principle is more fully formulated in the judgment of Cussen J
sitting in the Supreme Court of Victoria in Olsen v City of
Camberwell [1926] VLR 58, 68, where he said: ‘If the enactment, with the
invalid portion omitted, is so radically or substantially different a law as to
the subject matter dealt with by what remains from what it would be with the
omitted portions forming part of it as to warrant a belief that the legislative
body intended it as a whole only, or, in other words, to warrant a belief that
if all could not be carried into effect the legislative body would not have
enacted the remainder independently, then the whole must fail.’ We respectfully agree with and adopt this
statement of the law. It would be difficult to imagine a clearer example than
the present case of a law which the legislative body would have enacted
independently of the offending portion and which is so little affected by
eliminating the invalid portion. This is clearly, therefore, an order which the
court should not strive officiously to kill to any greater extent than it is
compelled to do.’
Then, having
summarised one of the points of counsel for the defendants, Ormrod LJ
continued:
‘His main point, however, was that the court could not sever the
invalid portion of this order from the remainder because it was not possible to
excise from the text of the Order the words which rendered part of it invalid.
This is the so-called ‘blue pencil test’. This test has been elaborated mainly
in connection with the covenants in restraint of trade. No doubt the court will
not and cannot rewrite contracts, and so confines itself to deleting part of
the text when it is able to do so. The same policy has been followed in
relation to bye-laws where the text permitted (Strickland v Hayes
[1896] 1 QB 290), and to a demand for a return, part of which could be struck
out from a form (Potato Marketing Board v Merricks [1958] 2 QB
316).
‘We can see no reason why the powers of the court to sever the
invalid portion of a piece of subordinate legislation from the valid should be
restricted to cases where the text of the legislation lends itself to judicial
surgery, or textual emendation by excision.’
At p 580E Dunn
LJ said:
The question
in the instant case is not as to the true construction of the resolution but
whether, and to what extent, the urban district council had power to give
effect to it. For that purpose the court is entitled, and indeed bound, to look
outside the document itself to see whether the urban district council, in fact
and in law, had power to do what the resolution on the face of it purports to
authorise. In this case it finds an easily identifiable part, namely the green
land, which the urban district council had no power to appropriate. There is no
more difficulty in deciding whether the resolution was invalid in respect of
that part and valid in respect of the remainder than if the green land had been
identified in the resolution itself, and no difficulty in the court declaring
that the resolution is invalid in respect of the green land and valid in
respect of the remainder.
It does not
seem to me to matter whether one calls that process severance or whether one
calls it modification of the resolution, or whether one uses some other word,
or expression, to describe it. In the realm of judicial review it could be
dealt with by declarations that the purported appropriation of the green land
was ultra vires and of the remainder intra vires.
Much of the
difficulty in the case seems to me to have been caused by the very use of the
word ‘severance’ which, in relation to the construction of documents and in
particular of covenants in restraint of trade, has acquired a special and
technical meaning. Its use in this case demonstrates the danger of using such
words in their general or ordinary meaning to describe a process in which the
court is in fact considering the validity of the purported exercise of power by
a local authority. The label given to the process tends to confuse the reality
of the process itself by imposing rules of law designed to deal with quite
different situations. I would echo the words of Ormrod LJ in Dunkley v Evans
[1981] 1 WLR 1522, 1524, 1525, that the court should not strive officiously to
kill to any extent greater than it is compelled to do. If, as here, it is
perfectly plain that the urban district council had no power to do what it
purported to do in respect of an easily identifiable parcel of land, it would
not be conducive to good public administration for the court officiously to
hold that the whole document, including that part which was within the power of
the council, was invalid.
Similarly,
Dillon LJ at p 583G, said:
None the less,
Mr Mottershead submits that there is in public law, though not in private law,
an overriding requirement that an excessive exercise of a power will be wholly
void, and not merely void as to the excess, unless the document exercising the
power is so worded as to include words describing the permitted exercise of the
power as well as further words describing the excess in such a way that the
excess can be excised by the use of a blue pencil, leaving unaltered the
wording in the document expressly covering the permitted exercise of the power.
I fail to see the sense or logic of such a requirement.
Any excessive
exercise of a power, whether in public or private law, is likely to be the
result of a mistake on the part of the person exercising the power, ie an
erroneous belief that the power extends further than it in truth does. But it
is in the highest degree unlikely that that person will realise that he is
making such a mistake and yet will not correct it. Therefore it is unlikely to
happen, and if it does happen it will be purely fortuitous, that the wording of
the exercise of the power will describe in express terms the extent of the
permitted exercise of the power as part of the wording used to achieve a wider,
and in truth excessive, execution of it. Therefore if Mr Mottershead’s
overriding blue pencil requirement is in truth a requirement of public law, it
would depend on chance, and not on any actual or presumed intention of the
person exercising the power, or on any rational process of construction of the
relevant document, whether the purported exercise of the power is wholly void
or pro tanto valid.
In the next
place, the blue pencil test is sought to be introduced into public law from
that field of private law which is concerned with the enforcement of contracts,
in particular of contracts in restraint of trade. Rather special considerations
in the field of public policy apply, however, to the enforcement of contracts
in restraint of trade, and it is these considerations which are the
justification of the blue pencil test; they have no relevance to the exercise,
or excessive exercise, of powers by local authorities or other public
authorities. The only link between these two fields of law is that the word
‘severance’ may in practice be used, whether correctly or not, in both. But it
is not used to describe the same process. In the field of contract it is used
to describe the process of construction of the contract to determine whether
one provision of the contract can stand and be enforced despite the invalidity
for extrinsic reasons, of some other provision of the contract. But in the
context with which we are concerned the term ‘severance’ is used merely to
determine the extent to which the extrinsic reasons invalidate a provision of
the document. The two processes are by no means necessarily the same.
Quite apart
from the lack of logic or sense to support it, Mr Mottershead’s supposed
overriding requirement is inconsistent, in my judgment, with the approach
adopted by the Divisional Court in Dunkley v Evans [1981] 1 WLR
1522. That was a case of excessive exercise of a power. Ministers had by a
statutory instrument purported to impose fishery restrictions over a large area
of sea, described only by reference to its overall boundary lines which in
truth exceeded the area over which they were, by the relevant statute,
empowered to impose restrictions. There Ormrod LJ said, at p 1525:
‘We can see no reason why the powers of the court to sever the
invalid portion of a piece of subordinate legislation from the valid should be
restricted to cases where the text of the legislation lends itself to judicial
surgery, or textual emendation by excision.’
Mr
Mottershead has submitted that the approach of the court in Dunkley v Evans
was wrong, and indeed that the case was wrongly decided. In my judgment, Dunkley
v Evans was, if I may respectfully say so, a sensible and correct
decision, and it is indistinguishable from the present case.
We in this
case are not concerned with the validity of the instrument under challenge itself
— that is to say, the compulsory purchase order. We are concerned with the
validity of a notice the service of which is a condition precedent to the
making of the compulsory purchase order. The question which arose in Thames
Water Authority v Elmbridge Borough Council, and Dunkley v Evans,
which was referred to in Elmbridge, therefore does not directly arise
here. However, if a resolution or order which purports to cover an area of land
or sea to which it cannot properly relate can nevertheless be held valid in
relation to the remaining areas, there is a strong argument that a notice which
lists works some of which are held not to be reasonably necessary for the
proper preservation of the building is nevertheless an effective and valid
notice. I do not find it necessary to consider the question whether, if the
repairs notice were defective, it was void or voidable, or the authorities in
which that dichotomy has been discussed. Indeed, in relation to an antecedent
notice, as opposed to a resolution of, or an action by, a local authority, I
doubt whether those are appropriate concepts.
The scheme of
sections 114 and 115 of the 1971 Act is unusual. There is no statutory
provision for challenging a repairs notice. Moreover, such a notice of itself
imposes no obligation on anybody; it is at once the harbinger of a compulsory
purchase order and its contents are no doubt a useful checklist for the
Secretary of State when he has to decide under section 114 whether or not
reasonable steps have been taken for the proper preservation of the building
and thus whether he should confirm a compulsory purchase order.
By applying to
the magistrates’ court under section 114(6), or by opposing the making of a
compulsory purchase order, the landowner may obtain a decision on the merits as
to what works are reasonably necessary and thus as to whether the repairs
notice was excessive or not.
I find nothing
in the material before us which compels us to the conclusion that the council,
when drafting and serving the repairs notice, misunderstood their functions or
made an error of law. On the interpretation of preservation which he has
adopted and with which I have agreed, the Secretary of State has concluded as a
matter of fact and degree that the council has included in its repairs notice
some works which were not necessary for the preservation of the building.
Moreover, I do not see how the council’s decision to include those items in the
list, mistaken though it may have been if the Secretary of State is correct,
can be called irrational. Indeed, opinions can properly differ as to whether
some of the items were or were not reasonably required for preservation; for
instance, it seems that in this respect the Secretary of State disagrees with
his own inspector, who in a passage which I have already read in para 139 of
his report, expressed the view that it was:
Appropriate
for the council to include the restoration of the ‘catwalk and fantail’ as well
as works of structural repair.
It follows,
therefore, since I take the view that if the council were in error in including
the six items in the repairs notice that error was one of fact and degree, that
I conclude that the repairs notice was valid.
It is
therefore unnecessary to consider any question as to the exercise of
discretion, save to comment that the learned judge apparently decided not to
quash the compulsory purchase order on the basis that the repairs notice had
not been held to be invalid.
For my part,
therefore, I would dismiss the appeal.
RUSSELL LJ
agreed and did not add anything.
Agreeing also,
SLADE LJ said: I wish to add nothing of my own, save to pay tribute to Mr
Barnes’ most effective presentation of this appeal.
Accordingly,
the appeal will be dismissed.
The appeal
was dismissed with costs but no order as to costs in respect of Ashford Borough
Council; an application by appellant for leave to appeal to the House of Lords
was refused.