Town and country planning — Blight notice — Counternotice relying on Town and Country Planning Act 1990 section 151(4)(a) — Land ceasing to be blighted after counternotice — Whether counternotice should be upheld
The claimants
served a blight notice dated January 20 1995 on the Secretary of State for
Transport, as the acquiring authority, stating that part of their land was
blighted land within paras 14 and 16 of Schedule 13 to the Town and Country
Planning Act 1990 by reason of a notified road scheme. The Secretary of State
served a counternotice dated March 20 1995 objecting to the blight notice on
the ground in section 151(4)(a) of the 1990 Act, namely ‘that no part of the
hereditament to which the [blight] notice relates is comprised in blighted
land’. The parties agreed that at the dates of the blight notice and of the
counternotice the land was blighted land. The claimants referred the objection
in the counternotice for the determination of the Lands Tribunal on May 15
1995. In December 1995 the claimants were informed that the road scheme had been
withdrawn from the roads programme, and in April 1996 the route protection was
formally revoked. Accordingly at the date of the tribunal hearing the land had
ceased to be blighted land. The Secretary of State contended that an objection
in a counternotice should be upheld even where the land ceased to be blighted
after the date of the counternotice.
notice was a valid notice.
Where the
objection in a counternotice is taken on ground (a) of section 151(4) of the
1990 Act, the material date for determining whether or not that objection is
well-founded, and the land is blighted, is the date of service of the
counternotice. That arises by way of construction of the words used in the
statute. Comments of Purchas LJ in Mancini v Coventry City Council
(1983) 49 P&CR 127, to the effect that there might be a possibility of
contending, in an appropriate case, that the material date might be postponed
to the date of the hearing of the tribunal, did not preclude the tribunal from
holding that the relevant date under ground (a) was the date of the
counternotice. The position may be different where an objection was based on
ground (b): see pp63F et seq.
to in the decision
Betty’s
Cafés Ltd v Phillips Furnishing Stores Ltd
[1959] AC 20; [1958] 2 WLR 513; [1958] 1 All ER 607; [1958] EGD 92; (1958) 171
EG 319, HL; affirming [1957] Ch 67; [1956] 3 WLR 1134; [1957] 1 All ER 1, CA
Burn v North Yorkshire County Council (1991) 63 P&CR 81;
[1992] 2 EGLR 193; [1992] 29 EG 128, LT
Cedar
Holdings Ltd v Walsall Metropolitan Borough
Council (1979) 38 P&CR 715
Essex
County Council v Essex Incorporated
Congregational Church Union [1963] AC 808; [1963] 2 WLR 802; [1963] 1 All
ER 326; (1963) 14 P&CR 237; [1963] EGD 555; 185 EG 453; [1963] RVR 151, HL
Kayworth v Highways Agency (1996) 72 P&CR 433
Louisville
Investments Ltd v Basingstoke District Council
(1976) 32 P&CR 419; [1976] 2 EGLR 172; 240 EG 637, LT
Mancini v Coventry City Council (1983) 49 P&CR 127; [1984] 1
EGLR 178; 270 EG 419; 25 RVR 132, CA
Reference to
the Lands Tribunal
This was a
reference to the Lands Tribunal to determine the validity of a blight notice
and counternotice under section 151(4)(a) of the Town and Country Planning Act
1990; and whether the counternotice should be upheld when the land ceased to be
blighted after the service of the counternotice.
Denyer-Green (instructed by Cox & Hodgetts, of Evesham) appeared for the
claimants.
Lieven (instructed by the Treasury Solicitor) represented the Secretary of
State for Transport.
following decision was delivered.
Judge Marder QC:
This is a reference relating to the blight notice provisions in sections 149 to
156 of the Town and Country Planning Act 1990 (hereinafter the 1990 Act) to
consider whether an objection to a blight notice is well-founded and should be
upheld. The relevant facts are not in dispute and the only issue is one of law
as to the material date by reference to which the objection in the counternotice
falls to be determined.
At the hearing
the claimants (servers of the blight notice) were represented by Mr Barry
Denyer-Green of counsel. The Secretary of State for Transport was represented
by Miss Nathalie Lieven. I am indebted to both counsel for the skilful and
cogent way in which they presented their arguments in a case of some
difficulty.
The agreed
facts of the matter, so far as relevant to the issue may be summarised as
follows:
(1) The
claimants own and occupy an area of land of approximately 1.5 acres (‘the
site’) adjoining the A435 Cheltenham Road at Sedgeberrow, near Evesham. The
site has the benefit of planning permission for the construction of a petrol
and service station.
(2) Between
May and July 1993 the Department of Transport submitted for public consultation
alternative routes for improvement of the A435 between the southern end of the
Evesham bypass and junction 9 of the M5 motorway east of Tewkesbury. In October
1994 the Secretary of State announced the preferred route for this road
improvement scheme, and in November 1994 he served on the local planning
authority a notice TR 111,
road. This notice had the effect of safeguarding a corridor of interest 67m
each side of the centre line of the preferred route.
(3) The
claimants served on the Secretary of State a blight notice dated January 20
1995 under section 150(1) of the 1990 Act, which stated that part of the site
was blighted land within paras 14 and 16 of Schedule 13 to the 1990 Act.
(4) The
Secretary of State served a counternotice dated March 20 1995 objecting to the
blight notice, the ground on which objection was taken being under section
151(4)(a) of the Act, namely ‘that no part of the hereditament to which the
[blight] notice relates is comprised in blighted land’.
(5) It is
agreed that at the date of the blight notice (January 20 1995) and at the date
of the counternotice (March 20 1995) the site was blighted land within the
meaning of paras 14 and/or 16 of Schedule 13 to the 1990 Act.
(6) The
claimants referred the objection in the counternotice for the determination of
the Lands Tribunal by notice of reference dated May 15 1995 pursuant to section
153 of the 1990 Act.
(7) By letter
dated December 24 1995 the Treasury Solicitor on behalf of the Secretary of
State informed the claimants that the road improvement scheme had been
withdrawn from the roads programme and invited the claimants to withdraw the
reference to the tribunal. In April 1996 the route protection was formally
revoked.
(8) At the
date of the hearing before me (April 14 1997) no part of the site was blighted
land, and the Secretary of State had no intention of purchasing any part of the
site unless compelled to do so.
Submissions
of the Secretary of State
Although the
onus appeared by virtue of section 153(3) and (4) to rest on the claimants, it
was agreed between counsel that Miss Lieven should begin.
Miss Lieven’s
submissions dealt first with the wording of the relevant provisions in section
151. She pointed out that the use of the present tense in section 151(4)(a)
‘that no part of the hereditament … is comprised in blighted land …’
suggested that the relevant date was when the decision came to be made, in the
case of a reference to the Lands Tribunal the date of the hearing. The text
does not specify a date, as it could have done, for example ‘no part etc … is
at the date of the blight notice comprised … etc’. By contrast, a date was
specified in subpara (e) dealing with the claimants’ entitlement to an interest
in the affected land.
Miss Lieven
then invited consideration of the intention and purpose of the Act. She
submitted that the blight notice procedure was designed in strictly confined
circumstances to alleviate hardship but it was not the prime purpose of the
scheme ‘to be fair to claimants’. It was not intended by parliament to be used
to require public authorities to purchase land for which they had no use, involving
potentially substantial loss to public funds. Furthermore, the impact of the ‘Crichel
Down rules’ could result in a circular process in which a government
department was compelled to
could not have been parliament’s intention that upholding the objection to a
blight notice should be fixed in time and in disregard of subsequent events.
In a careful
review of the authorities, Miss Lieven referred first to the case of Essex County
Council v Essex Incorporated Congregational Church Union [1963] AC
808. She accepted that a consequence of the Essex case was that it was not open
to an authority to amend a counternotice so as to include a further ground of
objection, but she maintained that her case in present circumstances did not
involve any such amendment. The case rested solidly on the objection pleaded,
namely that no part of the land is blighted land, by reason of the subsequent
lifting of the blight.
Mancini v Coventry City Council (1983) 49 P&CR 127 (CA). In
regard to this case Miss Lieven relied strongly on the remarks of Purchas LJ at
p141, which she accepted was obiter, but submitted was directly in point
in the present case.
In Kayworth
v Highways Agency (1996) 72 P&CR 433 it was plain that the Lands
Tribunal (the late Dr Hoyes) considered the facts subsequent to the
counternotice in order to determine whether the objection was well-founded.
Miss Lieven
also referred to Burn v North Yorkshire County Council (1991) 63
P&CR 81 which she said merely reiterated that an acquiring authority could
not change the ground pleaded in the counternotice. In the present case the
authority continued to rely on ground (a) as pleaded.
She referred
also to Betty’s Cafés Ltd v Phillips Furnishing Stores Ltd [1959]
AC 20. This was a case relating to the service of notices under the Landlord
and Tenant Act 1954. The statutory provision as to the landlords’ intention was
also expressed in the present tense, but was held by the House of Lords to be
provable as at the date of the hearing.
Submissions
of the claimant
Mr
Denyer-Green submitted that the use of the present tense in section 151(4)(a)
made it clear that what the Lands Tribunal was to inquire into was the state of
facts as expressed in the counternotice at the time of service. It was not ‘the
language of futurity’ referred to by Viscount Simonds in the Betty’s Cafés
case at p35.
The
counternotice contained a plain statement of fact. It resulted from a decision
made by the person drafting it. The effect of the Secretary of State’s argument
was that the Lands Tribunal was to be called on to test a quite different
decision, a contrary decision made long after the counternotice had been served
and long after the matter had been referred to the Lands Tribunal.
Mr
Denyer-Green pointed out that section 152 made express provision for service of
a different substitute or further counternotice in certain circumstances; that
indicated that parliament had considered and provided for changed circumstances
after service of the counternotice, He observed that if the Secretary of
State’s argument were correct, this provision would appear to be rendered
unnecessary and otiose.
As to the
authorities, Mr Denyer-Green said that the speeches of Lord Reid and Lord
Devlin in the Essex case made it plain that an acquiring authority could
not take a new point that had not been pleaded in the counternotice, but that
is precisely what the acquiring authority in this case seeks to do, in reliance
on a decision taken to remove the blight, which did not found the
counternotice. While it may be that the wording of the counternotice now
conveniently fits the new state of affairs resulting from the new decision, the
case now relied on is not the case founding the counternotice but a new case.
This offends against the thrust of the Essex decision.
Miss Lieven
had placed most reliance on the remarks of Purchas LJ in Mancini. These
comments were not however, even an obiter dictum. The point was not
argued and no view was expressed. There was in any event an indication of
Purchas LJ’s view in his reference at p142 to the power to serve a further
counternotice.
In Louisville
Investments Ltd v Basingstoke District Council (1976) 32 P&CR
419, Mr Wellings QC had expressed a tentative view, which he confirmed in the
later case of Cedar Holdings Ltd v Walsall Metropolitan Borough
Council (1979) 38 P&CR 715. This view of the former president, that the
relevant date is the date of service of the counternotice, is not binding but
is strong persuasive authority.
Mr
Denyer-Green referred also to Burn v North Yorkshire County Council
(1991) 63 P&CR 81, and to Kayworth v Highways Agency (supra).
He pointed out that the latter case was not concerned with ground (a) in the
counternotice, and he accepted the possibility that circumstances subsequent to
the counternotice might be relevant in relation to other grounds, in which the
intentions of the authority were in issue. However Dr Hoyes in the Kayworth
case specifically held that the material date was the date of the
counternotice.
Decision
In my
judgment, where the objection in a counternotice is taken on ground (a), as in
this case, then the material date for determining whether or not that objection
is well-founded, that is to say whether or not the land is blighted land, is
the date of service of the counternotice.
The statement
made by the authority serving a counternotice under ground (a) in section
151(4) is: ‘that no part of the hereditament … is comprised in blighted land’.
That is a simple assertion of existing fact, and if at the time the
counternotice is served, the land is in fact ‘comprised in blighted land’, then
it seems to me to be self-evident that the objection is not well-founded. The
counternotice is inaccurate in the assertion it makes. Thus, if the matter were
free from authority, I would by way of construction of the words used, and as a
matter of logic and common sense determine not to uphold the objection, and as
section 153(5) requires, declare the blight notice to be a valid notice.
Consideration
of the authorities cited confirms my view that this is the correct
interpretation of these provisions.
The case of Essex
County Council v Essex Incorporated Congregational
Country Planning Act 1959 which are in all respects material to the issue
identical with the present blight notice provisions in Part VI chapter 2 of the
1990 Act. The case turned on the extent of the tribunal’s jurisdiction in
respect of a counternotice. The speeches of Lord Reid, Lord Morris of
Borth-y-Gest and Lord Devlin made it clear that the jurisdiction of the
tribunal is limited to consideration of the ground(s) of objection specified in
the counternotice and there is no jurisdiction to consider an objection which
has not been raised in the counternotice. It is correct, as Miss Lieven pointed
out with force, that the House did not pay attention, and was not required to
pay attention, to the relevant date by reference to which the objection in the
counternotice is to be tested. Nevertheless, I find the proposition she
advances difficult to reconcile with the reasoning in the speeches of their
lordships. The proposition which she puts forward in its simplest form would
allow an authority to say: ‘in March 1995 we served a counter notice which
specified an objection which was then inaccurate, and which we now recognise
was not then well-founded. However, following the reference to the Lands Tribunal,
we reviewed the situation and changed our minds in December 1995, so that now
in April 1997 because the reference was not heard earlier, the objection has
become well-founded.’
That position,
which I have stated (I hope fairly) in graphic form, is, in my view, at
variance with the passage in Lord Reid’s speech at p819, where having set out
the authority’s argument that the tribunal could consider whether the claimant
had a ‘qualified interest’ as a preliminary matter of law affecting the
validity of the purchase notice, although not specified as an objection went
on:
In my
judgment, this was a complete misapprehension … What is referred to the
tribunal is not the validity of the notice but the validity of the objection in
the counter-notice …
and after
reciting the statutory provisions, Lord Reid went on:
If the
authority does not choose to question the validity of the notice at the time,
and in the manner required by the Act, it cannot do so at some later time or in
some other manner.
Lord Morris of
Borth-y-Gest also analysed the statutory provisions in detail, and at p824
said:
The
jurisdiction of the Lands Tribunal is purely statutory and is limited by
statute and it was not open to the Lands Tribunal to deal with an objection
which was never referred to it;
and after
relating that the point raised by the authority as to validity was not the
point raised as an objection in the counternotice, Lord Morris went on:
It
constituted an entirely separate ground of objection — … As it had not been
raised, it could not be referred to the Lands Tribunal. As it was not referred
to the Lands Tribunal, it was not before the tribunal and there was no
authority to deal with it.
Finally, Lord
Devlin’s detailed analysis concluded at p836:
The power to
declare the purchase notice a valid notice is not an unqualified one but is
conditional upon an objection not being upheld. I conclude, therefore, that the
jurisdiction given to the tribunal to determine the validity of the purchase
notice is confined within the grounds set out in the counter-notice; and
accordingly that, if the tribunal goes beyond those grounds, it is not merely
taking a step which is contrary to the provisions of the Act but is exceeding
its jurisdiction.
As I have
said, there is no specific reference in these speeches to the relevant date for
testing the ground(s) of objection. However, it appears to me to be implicit in
these quoted passages that an objection specified in the counternotice and then
referred to the tribunal is to be considered by the tribunal on the basis of
the state of affairs as set out in the counternotice. That is the objection
referred to the tribunal. The later objection resulting from the change of
policy or change of mind after the reference to the tribunal is not the objection
made in the counternotice, and not the objection referred to the tribunal,
albeit that the ground of the objection happens to be of the same nature.
If I am wrong
in that view, then at least there is nothing in the Essex case that
lends support to the Secretary of State’s submission in this case.
I turn to
consider the remarks made by Purchas LJ in the Mancini case on which
Miss Lieven placed reliance.
The facts of
the Mancini case are crucial to consideration of the decision. The
claimant served a blight notice claiming that his property was blighted, and at
the date of service of the blight notice the property was undoubtedly blighted
land. Following on receipt of the blight notice, the authority reviewed its
position and decided that the property was no longer required for public
purposes. Thereafter the authority served a counternotice objecting to the
blight notice on ground (b), namely that the council did not propose to acquire
any part of the property. The Lands Tribunal in those circumstances held that
at the date of the counternotice the council did not propose to acquire any of
the subject land and accordingly that the objection in the counternotice was
well-founded. The Court of Appeal decided that the tribunal was correct, and
that the material date for consideration of the objection, must be the date of
the objection notice.
It will be
seen therefore that Mancini is direct authority against Miss Lieven’s
contention that the relevant date is the date of hearing of the reference.
However, in the course of his judgment, Purchas LJ said at p141:
I would add
one qualification: during argument mention was made of the provisions of the
Landlord and Tenant Act 1954 with reference to the right of
it is well established law that the material date is not the date of the
counter-notice but the date of the hearing. This may well arise in a case in
which the critical decision lies between the date of the objection to the
blight notice and the date on which the tribunal determines the matter. This
does not arise in this case nor has the matter been fully argued before us. It
is sufficient for me to hold that the earliest material date for the purposes
of this appeal is the date of the objection notice. Nothing in this judgment
should be taken to exclude the possibility of contending, in an appropriate
case, that the material date might even be postponed to the date of the hearing
by the tribunal.
It is
abundantly plain from this passage that Purchas LJ was not expressing a decided
view. As Mr Denyer-Green said, the point was not argued and was not necessary
to the Court of Appeal decision. Miss Lieven accepted in argument that the
remarks amounted to no more than the ‘express reservation of a possibility for
future consideration’.
As it seems to
me, the reference by Purchas LJ to the principle decided in the Betty’s
Cafés case is an indication that his lordship had in mind that the point at
issue concerned the intentions or proposals of the server of the counternotice,
as indeed it did in the Betty’s Cafés case. The House of Lords was
concerned in that case with the intentions of the landlord, and it was held
that a landlord who served a notice to resist the grant of a new tenancy, on
the ground that on the termination of the current tenancy he intends to
demolish or reconstruct the premises, was entitled to succeed if he proved that
intention as at the date of the hearing of the application for a new tenancy.
The mechanism for serving notice and expressing intention was, in the words of
Viscount Simonds at p35 in ‘the language of futurity’. It may be that if a case
arises in which an authority serves a counternotice of objection to a blight
notice in reliance on a ground such as ground (b) in section 154(4), that is to
say that the authority does not propose to acquire the land, then by
analogy with the Betty’s Cafés case, the intention of the authority may
be sufficiently proved as at the date of the hearing. That is not this case
however. I cannot find ‘the language of futurity’ in para (a) of section 151(4)
which is simply a statement of existing fact. Hence, I do not think the
comments of Purchas LJ in Mancini preclude me from holding that the
relevant date for determining the ground of objection under ground (a) is the
date of the counternotice.
My view of the
matter is reinforced by earlier decisions of the tribunal. In Louisville
(supra), Mr Wellings ‘tentatively’ reached the conclusion that the
relevant date for determining whether the objection was well-founded was the
date of the service of the counternotice, and held further that an event
subsequent to service of the counternotice could not deprive the tribunal of
jurisdiction to consider the objection.
In the Cedar
Holdings case (supra) the factual position was, as explained at
p717, in effect the reverse of that in the present case, viz:
(1) at the
date of the blight notice, the land was not blighted;
(2) at the
date of the counternotice, the counternotice correctly objected that the land
was not blighted;
(3)
subsequently, a compulsory purchase order was made; and
(4) by the
date of the hearing, the land had in consequence become blighted land.
The tribunal
(Mr Victor Wellings QC) held that the relevant date was the date of service of
the counternotice and accordingly upheld the objection.
Both these
decisions were considered by the Court of Appeal in Mancini and
expressly approved: see Purchas LJ at p140, Stephenson LJ at p146.
In Burn
v North Yorkshire County Council (1991) 63 P&CR 81, the tribunal (Mr
JC Hill frics) considered the
authorities and again concluded that the relevant date was the date of the
counternotice. Finally, in the case of Kayworth v Highways Agency
(1996) 72 P&CR 433 the late Dr Hoyes frics
also held that to be the material date, while not excluding the
possibility of considering subsequent events for the purpose of determining
whether an objection based on an assertion of the authority’s intentions was
well-founded.
My
consideration of the cases leads me to the view that some doubt may still
remain as to the relevant date for determining whether or not an objection is
well-founded, where that objection is based on paras (b), (c) or (d) in section
151(4). Each of these paragraphs entitles or requires the authority in their
counternotice to state what the authority proposes or intends to do in relation
to the subject land. As Purchas LJ recognised in Mancini and Dr Hoyes in
Kayworth, there may be a case where the authority’s intentions should be
tested as at a date subsequent to the service of the counternotice.
In my
judgment, however, no such doubt arises in a case such as the present where the
counternotice relies on para (a), the assertion that the land is not blighted.
The definition of ‘blighted land’ in section 149(1) refers to the 23 categories
of blight set out in Schedule 13. It is a matter of ascertainable and objective
fact whether some or all of a hereditament falls within one or more of these
categories. If the counternotice objects, as it does in the present case, that
no part of the hereditament is comprised in blighted land, that is an assertion
which is right or wrong at the time when it is made; that is the objection
which is then referred to this tribunal. Where the assertion is wrong at the
time it is made; the objection taken is not well-founded and cannot be rendered
well-founded by some subsequent action on the part of the authority. I hold
that the relevant date by reference to which this objection is to be tested is
the date when the objection is made.
I have
considered Miss Lieven’s submissions as to the policy and purpose of the
statutory blight notice procedure, but I cannot regard these as decisive. No
doubt upholding this blight notice will leave the Secretary of State having to
purchase land for which he now has no use, and that expenditure of public funds
may be regrettable. However, that is frequently the result, where a confirmed
purchase notice or blight notice may be followed by a change of policy, such as
the abandonment of a road scheme or the choice of a different route. I do not
think these
statutory provisions.
For these
reasons, I conclude that the objection in the counternotice is not well-founded,
and declare that the blight notice dated January 20 1995 is a valid notice. The
Secretary of State is to be deemed to have served notice to treat as at the
date of hearing, namely April 14 1997.
This decision
determines the substantive issues raised between the parties, and the
tribunal’s award is final. The parties are invited to make such submissions as
they are advised as to the costs of the hearing, and a letter accompanies this
decision as to the procedure for submissions in writing. The tribunal will, in
due course, incorporate an order as to costs in an addendum to this
decision. Rights of appeal under section 3(4) of the Lands Tribunal Act 1949
and Rules of the Supreme Court Ord 61 will not accrue until the decision has
been thus completed, ie from the date of the addendum.
Addendum
as to costs
I have
received and considered submissions as to costs. The claimants invite an order
on the basis that costs follow the event, and the Treasury Solicitor does not
resist. Accordingly the order will be that the Secretary of State pays the
claimants’ costs of the reference, such costs if not agreed to be taxed by the
registrar on the standard High Court basis.
The blight
notice was valid.
