Purchase notice–Secretary of State may apparently obtain unlimited time for consideration of his decision by notifying owner that he does not propose to confirm–On facts, Secretary of State had no power to refuse to confirm a notice demanding acquisition of a paddock adjoining Hangleton Manor, Hove–Reference to Noble v Armitage [1962] EGD 534
This was an
application by Mrs Freda Sheppard to quash a decision of the first respondent,
the Secretary of State for the Environment, dated January 30 1973 refusing to
confirm a purchase notice served by the applicant on the second respondents,
the Borough of Hove, demanding the acquisition of land adjoining Hangleton
Manor, Hove, Sussex.
Mr C S Fay
(instructed by Boxall & Boxall, agents for Edwin Boxall & Kempe, of Brighton)
appeared for the applicant, and Mr K H T Schiemann (instructed by the Treasury
Solicitor) represented the first respondent. The second respondents were not
represented.
Giving
judgment, WILLIS J said: This is an application under section 245 of the Town
and Country Planning Act 1971 (hereinafter referred to as ‘the 1971 Act’) to
quash a decision of the Secretary of State for the Environment dated January 13
1973 refusing to confirm a purchase notice relating to land adjoining Hangleton
Manor, Hove, Sussex. The circumstances in which the purchase notice came to be
served by the applicant, Mrs Sheppard, are as follows. On February 10 1967
planning permission was granted to the trustees of the Knole Estate for
conversion into flats of Hangleton Manor, a house of architectural distinction
which was graded II on the statutory list and had been used for some years
previously as an hotel, and for the erection of 17 houses on land adjoining.
This included permission for the erection of four houses and garages on the
land the subject of the purchase notice (hereinafter called ‘the paddock’). On
the same day application was made by a firm called SCB Contractors Ltd, of
which both the applicant and her husband were directors, for permission to
recondition Hangleton Manor as a single-dwelling unit and for the erection of
13 dwelling-houses on land adjoining. This application did not include the
paddock as a site for four houses and garages, and the paddock was shown
uncoloured on the plan attached to the application. In the meantime Hangleton
Manor house, with certain adjoining land including the paddock, was transferred
by the trustees to the applicant on March 17. The application of SCB
Contractors was granted, subject to conditions, on March 28 1967. Later events
can be summarised as follows. The company built four houses under the
permission granted to them, and the remaining 9 houses under revising
permissions. The house was not converted into a private house, but was sold by
the applicant and reconditioned in order to revert to its earlier use as an
hotel. The paddock remained undeveloped in the ownership of the applicant. In
1970 the applicant sought permission to build four houses on the paddock, as
had been allowed to the trustees, but planning permission was refused, and the
refusal was upheld on appeal on April 14 1971. She therefore served on the
local authority on August 5 1971 a notice under section 129 of the 1962 Act
(now section 180 of the 1971 Act) requiring them to purchase the paddock as
being land which had become incapable of reasonably beneficial use in its
existing state or of being rendered capable. The local authority declined to
buy the land, and on October
with section 181 (1)(c) and (3) of the 1971 Act.
It is
necessary now to refer to some of the sections of the 1971 Act which are
relevant to this application. Section 182 sets out what might be called the
‘procedure before action.’ On receipt of
a purchase notice from the local authority the Secretary of State is required
by subsection (1) to consider whether he will confirm the notice or
‘take other action under section 183 of this Act,’ but whatever action he proposes
to take, he is required by subsection (2) to notify the server of the notice
and the appropriate authorities. Any notification under subsection (2) must
give the recipients the opportunity of being heard by a person appointed by the
Secretary of State before he confirms the notice or takes any other action
under section 183. Subsection (4) in fact allows the Secretary of State to
change his mind after a hearing and take action different from that which he
had at first proposed. Section 183 provides in subsections (1) to (4) for the
various courses of action which the Secretary of State can take. These are: (1)
confirm the notice, if he thinks that the conditions of section 180 are
complied with; (2) grant planning permission or revoke or amend conditions, in
lieu of confirmation, in order that the land can be used beneficially; (3)
secure the beneficial use of the land by directing the grant of permission if
application is made, again in lieu of confirmation; and (4) confirm the notice,
but substitute another acquiring authority from that appearing in the notice.
Finally by subsection (5) it is provided:
‘In section
182 of this Act, any reference to the taking of action by the Secretary of
State under this section is a reference to the taking by him of any such action
as is mentioned in subsections (1) to (4) of this section, or to the taking by
him of a decision not to confirm the purchase notice either on the grounds that
any of the conditions referred to in subsection (1) of this section are not
fulfilled or by virtue of section 184 of this Act.’
Section 184
provides as follows:
‘(1) This section shall have effect where, on an
application for planning permission to develop any land which has a restricted
use by virtue of a previous planning permission, permission is refused or
granted subject to conditions and an owner of the land serves a purchase notice
under section 180 of this Act. (2) For the purposes of this section, land is to
be treated as having a restricted use by virtue of a previous planning
permission if it is part of a larger area in respect of which planning
permission was previously granted (and has not been revoked) and either’–(a),
which is the material paragraph here–‘it remains a condition of the planning
permission (however expressed) that that part shall remain undeveloped or be
preserved or laid out in a particular way as amenity land in relation to the
remainder. . . . (3) If a copy of the purchase notice is transmitted to the
Secretary of State under section 181 (3) of this Act the Secretary of State,
although satisfied that the land has become incapable of reasonably beneficial
use in its existing state, shall nevertheless not be required under section 183
(1) of this Act to confirm the notice if it appears to him that the land ought,
in accordance with the previous planning permission, to remain undeveloped or,
as the case may be, remain or be preserved or laid out as amenity land in
relation to the remainder of the large area for which that planning permission
was granted.’
Section 186,
so far as material, provides:
‘(2) If, before the end of the relevant period,
the Secretary of State has neither confirmed the purchase notice nor taken any
such action in respect thereof as is mentioned in section 183 (2) or (3) of
this Act, and has not notified the owner by whom the notice was served that he
does not propose to confirm the notice, the notice shall be deemed to be
confirmed at the end of that period.’
Subsection (3)
prescribes the relevant period, and subsection (4) provides:
‘Where the
Secretary of State has notified the owner by whom a purchase notice has been
served of a decision on his part to confirm, or not to confirm, the notice
(including any decision not to confirm the notice in respect of part of the
land to which it relates, and including any decision to grant any permission,
or give any direction, in lieu of confirming the notice, either wholly or in
part) and that decision of the Secretary of State is quashed under the
provisions of Part XII of this Act, the purchase notice shall be treated as
cancelled, but the owner may serve a further purchase notice in its place.’
The Secretary
of State took a provisional view that the purchase notice should not be
confirmed, and he wrote (inter alios) to the applicant a letter dated
January 24 1972 which he intended to be a notification of his proposed action.
The relevant paragraphs read as follows:
‘5 From the evidence at present before him the
Secretary of State takes the view that the land has become incapable of
reasonably beneficial use in its existing state, but in view of the provisions
of section 32 of the 1968 Act he does not consider that he would be justified
in confirming the notice as he feels that the site ought, in accordance with
the planning permission granted on March 28 1967, reference BP
30996/M/12791/67, to be laid out as amenity land in relation to the remainder
of the larger area for which that permission was granted.
‘6 He therefore proposes, unless notified by
February 25 1972 that the county council, the borough council or the server of
the notice desires an opportunity of being heard by a person appointed by him
for that purpose, not to confirm the purchase notice.’
The applicant
required an opportunity to be heard, and a hearing took place at which the
applicant, the local authority and others made representations. The inspector
recommended, and the Secretary of State accepted, that although the land was
incapable of reasonably beneficial use in its existing state and that the
conditions in section 183 (1) were met, confirmation should be refused because
the land had a restricted use in accordance with section 184 by reason of a
condition imposed on the paddock under the planning permission of March 28 1967
and ought to be land laid out as amenity land in connection with the larger
area for which the permission was granted on March 28 1967. This condition read
as follows:
’10 Additional trees shall be planted as shown on
the deposited plan and the remainder of the land within the curtilage of the
site shall be laid out and planted with trees, shrubs and/or grass within one
year from the completion of the works and shall be so maintained to the
satisfaction of the borough council.’
The reason was
stated to be ‘to safeguard the visual amenities of the locality.’ It is the imprecision of the language used in
this condition which has given rise to the principal difficulties in the case
and has involved much argument whether it was effective to impose on the
paddock a restricted use under section 184. If it was not, it is common ground
that the Secretary of State had no power to refuse to confirm the purchase
notice on the grounds which he gave.
Before
considering condition 10 and counsel’s submissions upon it, it is convenient to
deal with a preliminary point taken by Mr Fay. By section 186 (2) and (3) of
the Act, a time-limit for action under section 183 is imposed on the Secretary
of State which requires him to take the relevant action within six months of
receiving the purchase notice from the local authority, or nine months from its
receipt by the local authority, whichever expires first. If that action is not
taken within the limitation period, the notice is deemed to be confirmed. The
decision of the Secretary of State refusing to confirm the purchase notice in
reliance upon section 184 was dated January 30 1973 and was outside the
limitation period. Mr Fay’s submission is that on a true construction of
section 186 (2) the purchase notice must be deemed to have been confirmed
before January 30 1973, namely on April 29 1972 and that the purported decision
in January was ultra vires and should be quashed. Submissions on this
difficult point were made to the inspector at the hearing on behalf of the
applicant and the local authority, and the convenient course was taken of
reducing them to writing so that they were before the Secretary of State when
he reached
that within the relevant period the Secretary of State had ‘neither confirmed
the purchase notice nor taken any such action in respect thereof as is
mentioned in section 183 (2) or (3),’ and had not ‘notified the owner by whom
the notice was served that he does not propose to confirm the notice.’ Counsel submits that there is no question but
that the Secretary of State had neither confirmed nor taken either course
referred to in section 183 (2) and (3), and that, despite the use of the word
‘propose’ in the fourth contingency, the refusal contemplated in that event is
just as much a final decision as the courses of action contemplated earlier in
the subsection. In particular it is not a reference to the notification of
tentative or provisional action contemplated by section 182 (2). He (Mr Fay)
further submits that if, contrary to his main submission, the notification of
the proposal is referrable to section 182 (2), then the letter of the Secretary
of State dated January 25 1972 has not, by reason of its conditional phrasing,
achieved its intended purpose of notifying the applicant that the Secretary of
State had reached a provisional conclusion not to confirm the notice.
Mr Fay submits
that the scheme of the Act and of earlier legislation makes it clear that the
Secretary of State has been placed under a strict time-limit for the taking of
any of the courses open to him under section 183, including by subsection (5) a
decision not to confirm, and that it would be wrong to construe section 186 (2)
in such a way as to enable the Secretary of State to evade the limitation
merely by giving a notification under section 182 of his proposal not to
confirm, whether or not there follows a hearing and whatever may be his final
decision. Section 186 (2) has provided, says Mr Fay, for a final decision,
whatever it is, to be given during the limitation period, and section 186 (2)
does not provide via section 182 (2) what would seem to be wholly arbitrary,
and in many ways a capricious escape-route, because the word ‘propose’ is used
in both subsections. Mr Schiemann submits that there is only one course of
action which is caught by the limitation period, and that is confirmation. Any
other course, whether refusal to confirm simpliciter, or action in lieu
of confirmation, is properly labelled a ‘refusal to confirm,’ even if there is
what counsel calls a ‘consolation prize’ in the form of (for example) planning
permission. In other words, if the Secretary of State proposes to take any
course other than to confirm, he only has to give notification that he does not
propose to confirm in order to have unlimited time thereafter to come to his
final decision. If this was Parliament’s intention, I confess I find it
difficult to understand why it chose such an elaborate and obscure way of
expressing it. It only needed to provide that if the Secretary of State
proposed initially to confirm he must come to a final decision, whatever it
might be, within, say, nine months. Although it may be that during the years
since the original Act of 1947, with its amending Acts and Acts of
consolidation following at regular intervals, the expression of a simple idea
in simple language has become increasingly elusive, I cannot think that if that
had been the intention the subsection would not have said so. I think that if
the Secretary of State proposes to confirm or take action in lieu of
confirmation, he must notify the owner of his intention under section 182 and
give a final decision, including a decision not to confirm, within the
limitation period. Why then should there be an apparent exception to this
procedure deriving from the words ‘and has not notified . . . that he does not
propose to confirm?’
Mr Fay says
the exception is apparent and not real, and that when the matter is closely
examined, the apparent proposal represents a final decision to refuse
confirmation, and so all courses of action are parcelled within the same
limitation period. This is a neat construction, and I would like to be able to
construe the subsection in this way. However, I find it difficult to accept,
particularly when there are found in the same section the phrases ‘not propose
to confirm’ and ‘decision not to confirm.’
Prima facie there is an element of futurity short of finality in
the one which is not present in the other. But when I ask myself why Parliament
provided for time not to run when the Secretary of State gives notice of one
proposed action, namely not to confirm simpliciter, rather than any of
the other possible courses of action open to him, particularly when a hearing
can follow from the notification of any one of them, I cannot find an answer
which seems to me convincing. The possible time-scale in the various
contingencies provides no clue. I cannot think Mr Schiemann’s suggestion that a
proposal to confirm is the only course which gives the owner what he calls the
‘green light,’ and therefore the Minister must hasten, is a likely explanation,
particularly since the notification may bring about a hearing after 28 days’
notice. In any event, many owners would think a proposal to grant planning
permission was an even greener light. In the end, despite the most helpful
arguments from counsel, I find myself unable to find a satisfactory rationale
for Parliament to have provided an exception to the limitation period in
section 186 (2). Equally I am not convinced by Mr Fay that to have done so
produces results so absurd and capricious that I feel impelled to accept his
construction of the section. I think that the relevant words in section 186 (2)
do look back to section 182 (2), and construing them as best I can from their
context, I have come to the conclusion that the limitation period does not run
after the Secretary of State has given notice under section 182 (2) that he
does not propose to confirm. Nonetheless, if those who may have to consider
this section share my difficulty, it may be thought right at some convenient
time to clarify the meaning.
Has the
Secretary of State given such a notice in this case? It is conceded in the decision letter of
January 30 1973 that the letter of January 24 1972 could have been better
expressed, and by Mr Schiemann that, although it is a letter in standard form,
it does not fall within the strict construction of section 182. On the face of
the letter, the Secretary of State said that he proposed not to confirm unless
a hearing was required. The hearing was required and held, and thus, so runs
the argument of Mr Fay, there never was a true section 182 notification in the
events which happened. I doubt whether such a notification should depend for
its validity on so stringent a construction. It is clear from paragraph 7 of
the letter that it was intended to be a notice under section 182, and although
that, of course, would not be enough to validate a true invalidity, and the use
of the word ‘unless’ was strictly inaccurate, the sense seems to me to be clear
that the server was notified of the proposed course of action and given an
opportunity of a hearing. I propose therefore to uphold the letter as a valid
notification under section 182, and Mr Fay’s submission on this point also must
accordingly be rejected. But it may be thought that in future the phrasing
should be changed.
I pass to the
main issue in the case, namely whether, by reason of condition 10 of the
planning permission of March 28 1967, the Secretary of State was entitled to
refuse to confirm the purchase notice in pursuance of section 184. Mr Fay has
taken a number of points in support of his submission that condition 10 cannot
be relied on by the Secretary of State. First he says that the condition, on
its true construction, does not apply to the paddock at all. It applies, he
says, to the curtilages or gardens of the 13 houses proposed to be built, that
is the remainder of the gardens of each individual site after the planting of
any additional trees. Although almost any construction is possible with a
condition so obscurely phrased, this is not one of which I should have thought
it was susceptible. Mr Fay, however, suggests that a clue to this construction
is to be found in the wording of conditions in the later revising permissions
for the plot
front gardens of the remaining houses. Unless his construction is accepted,
says Mr Fay, the four houses built under the first permission would escape the
layout restriction on their gardens. I doubt if it is permissible to try to
construe condition 10 by reference to later permissions, but even if it is I do
not think it is possible to give it the construction for which Mr Fay contends.
Assuming did not fairly and reasonably relate to the development he is wrong on
this point, Mr Fay says that condition 10 permitted, or if it did so relate at
the time it was imposed, it cannot be said so to relate to any development
which remained an effective subject of planning permission when the Secretary
of State made his decision. If the condition related to anything, says Mr Fay,
it related to that part of the permission which was concerned with the
development of the manor house by changing its use and not with the house
development, and that since the manor development did not, and now will not,
take place there is no effective development to which the condition can fairly
and reasonably relate. Finally Mr Fay submitted that for the purposes of
section 184 a condition does not remain restrictive of land in so far as it
relates only to land which at the date of the permission and at all times
thereafter was never in the ownership or under the control of the owner or
developer of the only land which remained the effective subject of planning
permission, that is to say in this case the dwelling-houses, in which the
applicant has never had an interest.
Mr Schiemann,
faced with what is on any view an ambiguous and badly-drafted condition,
invites me to approach its construction the broad way, having regard to the
commonsense of the transaction and the real intention of the parties: see Crisp
from the Fens v Rutland County Council (1950) 1 P & CR 48, per
Bucknill LJ at page 55, approved in the case of an ambiguous condition in Miller-Mead
v Minister of Housing and Local Government [1963] 2 QB 196. Adopting
this approach, counsel submits, the paddock was included in the land subjected
to condition 10 and so remained; the question of ownership of the land at the
time the condition was imposed was irrelevant, having regard to the appropriate
statutory provisions; and in the end, the real issue was whether in the circumstances
of this case, giving the words of section 184 their natural and ordinary
meaning, the Secretary of State was entitled to refuse to confirm. He (counsel)
conceded that in this particular case the section operated harshly, but he
asserted that it was one of the hard cases which Parliament must have had in
mind when enacting section 184 to deal with the particular situation, and, as
he put it, ‘to catch a variety of fish.’
I find the task of construing this condition extremely difficult. The
draftsman has created quite unnecessary difficulties for anyone in the position
of the Secretary of State or the court by using the word ‘curtilage,’ which has
a meaning for a lawyer, but which he could not have used in any context
recognisable by a lawyer in this case. What is ‘the site?’ When that has been identified, what is ‘the
remainder of the land within the curtilage of the site’ after additional tree
planting has been allowed for? Quot
homines, tot sententiae. The inspector’s view of the condition was this:
It appears to
me that the condition applies to the whole of the comprehensive application
site area edged red, being land which included the purchase notice site which
for very many years had quite clearly been an integral part of the curtilage of
the manor house, closely linked to the buildings, yard and grounds by the
several access ways through the surrounding flint walls.
In his
decision letter the Secretary of State says:
It is agreed
that this could have been better phrased, but it is considered that ‘curtilage’
may be taken as a reference to the curtilage of the manor house, which includes
all the land edged red on plan E and used for the comfortable enjoyment of the
house, and that ‘the remainder of the land’ clearly refers to that land other than
the curtilages of the 13 houses.
Mr Schiemann
submits that the condition covers land other than the curtilages of the houses,
the retained items such as the dove-cote, and the areas of existing trees and
additional tree-planting. I have already referred to Mr Fay’s construction,
which I regret that I am unable to accept, and I refrain from referring to the
construction put forward by the corporation. There is no doubt, from the
reasons given for condition 3 and from passages to which I was referred in the
inspector’s report, that the council were very anxious that Hangleton Manor
should be restored to a family home, and it seems that they persuaded the
company to combine an application to change the use of the manor with the
application for building 13 houses on part of the manor land, which was all
that the company was interested in. The majority of the conditions imposed by
the permission seem to me to be clearly designed to enable the new development
to be undertaken consistently with the restoration of the manor as a house.
Condition 10 does not seem to me to have any purpose, if it can be given a
meaning, other than to enhance the setting of the manor house. I do not think
it could be said to relate fairly and reasonably to the development of the 13 houses.
If the paddock can be said to be covered by condition 10, therefore, it could
only be related to permission for the development of the manor by its change of
use. My mind has wavered, but in the end, despite the ambiguous phraseology of
the condition, I think it was intended at the time it was imposed to provide
for the layingout of some land belonging to the house in order to create an
attractive setting for it, and that it would have been understood by both
parties at the time to have included the paddock.
I have reached
the conclusion that condition 10 covered the paddock with considerable
hesitation, but if I am right the question arises whether ‘it remains a
condition of the planning permission that [the paddock] shall be laid-out,’
etc. If I am right in taking the view that condition 10 related only to that
part of the permission affecting the change of use of the manor, the question
arises whether the permission can be considered as divisible and looked at in
parts. It is clear from authority that it is proper to do so in certain
circumstances (F Lucas & Sons Ltd v Dorking & Horley Rural
District Council (1964) 62 LGR 491). Further, it is clear from a number of
cases dealing with enforcement notices that a planning authority cannot succeed
for breach of condition unless the development to which it was attached by the
planning permission has actually been carried out (Mounsdon v Weymouth
& Melcombe Regis District Council [1960] 1 QB 645 and Noble v Armitage
[1962] EGD 534, per Lord Parker CJ). It may be that in accordance with Lucas’s
case it is right to regard the 13 houses as each subject to separate
permissions. But whether that is so or not, I am of the opinion that it is
right to consider condition 10 as relating solely to the development of the
manor house, and that that development should be treated as subject to a
separate permission. That development has not been carried out, and if
proceedings had been brought in respect of an alleged breach, they would, in my
view, have been bound to fail. If, therefore, condition 10 would have been
ineffective to found enforcement proceedings, can it nonetheless remain
effective to found a decision unfavourable to the applicant under section
184? I think not. Although I would have
thought that a condition could remain effective under section 184 despite the
permitted development not having been carried out, there must at least be a
possibility that the development to which the condition is attached will take
place. Here there was none. When the Secretary of State reached his decision,
Hangleton Manor had become an hotel and not a private home, and nothing was
left of the permission to which the condition was attached. As in the
enforcement cases, at the relevant time there was nothing except the condition itself,
and in my view a condition in suspended animation, as it
in Mounsdon’s case, supra). I have reached this conclusion
roughly by the route plotted for me by Mr Fay, but I think Mr Schiemann’s
rather simpler approach leads me to the same result. In the circumstances of
this case, and giving the words of section 184 their ordinary and natural
meaning, did there remain a condition which justified the Secretary of State in
refusing to confirm the purchase notice?
Put a little more specifically, and adapting Mr Fay’s words, if the
Secretary of State had asked himself the question ‘Does condition 10 now remain
a condition which fairly and reasonably relates to a development which is still
an effective subject of the planning permission?’ I think the answer in each case should have
been no. I am glad to have been able to reach this conclusion. It seems to me
that this issue under section 184 is likely in most cases to depend on the
particular facts, and in the rather exceptional circumstances of this case, as
Mr Schiemann acknowledges, any other conclusion would clearly have worked
hardship on the applicant.
This is
sufficient to dispose of the main issue in the applicant’s favour, and it is
not necessary to express any view on Mr Fay’s submission on the question of the
ownership of the paddock. In the event that this case goes to appeal, it is
right that I should record that Mr Fay also criticised the decision of the
Secretary of State as failing to comply in a number of respects with the
requirements of the Act, but it is not necessary that I should deal with them
having regard to the conclusion I have reached.
Mr Fay: My
Lord, in those circumstances I ask for an order that the decision of the
Secretary of State be quashed, and I ask for an order that the costs of this
matter should be paid by the respondent.
Mr Schiemann:
My Lord, I have nothing to say on the matter of costs. May I mention one
matter: in the early part of your Lordship’s judgment your Lordship said that
it was a common ground that the Secretary of State had no power to confirm the
purchase notice if the condition was bad. Your Lordship will recall that I
expressly reserved (and I say this in case the matter goes further) the
position. And it would certainly be helpful, and I think my learned friend
would not object, if that reservation were referred to in case the point were
raised.
Willis J: I
had your reservation quite clearly in mind, Mr Schiemann. I had not thought
that the way I put it, as it were, put you out of court on that in subsequent
proceedings. The way I expressed it was: if it was not effective to impose on
the paddock a restricted use, it is common ground that the Secretary of State
had no power to refuse to confirm the purchase notice. What I had in mind in
that was that the Secretary of State having concluded that, but for section 184
he would have been bound to confirm.
Mr Schiemann:
I think if your Lordship were to add ‘on the grounds that he gave,’ that would
cover the point.
Willis J. Yes,
certainly.