Stop notice compensation under s 177 of Town and Country Planning Act 1971 — Preliminary issue as to whether claim, in respect of warehouse units on Lewes estate, was made within 6 months’ time-limit prescribed by regulation 14(2)(a) of Town and Country Planning General Regulations 1976 — Enforcement notice quashed by Secretary of State on January 27 1981 and claim for compensation dated August 12 and 13 1981 received by compensating authority on August 14 1981, ie more than 6 months after date of Secretary of State’s decision — But claimant relies on passage in a letter from its solicitors to compensating authority dated January 28 1981 as constituting claim for compensation — After stating it seemed that their clients were entitled to compensation and costs and that they would be pleased to hear that the council ‘recognises its liability under these heads’, the solicitors added: ‘. . . our clients will be formulating their various heads of claim with a view to a formal submission of the claim . . . in due course’ — Held that the claim for compensation was not out of time — The relevant passage in the letter constituted a claim in itself and the ‘claims’ made later, so far from being claims, were further and better particulars of a claim already delivered — In tribunal member’s opinion, s 177 and reg 14 do not require claim to be in any particular form or that it should state sum claimed or be a detailed claim — Document alleged to constitute claim must, however, be unequivocal and make clear to compensating authority that a claim is being made, not that one is to be made in future — ‘It is right that a benevolent construction should be used’ in construing relevant passage in letter in present case — Thompson v Good & Co cited by member in support
Guy Seward QC
and George Bartlett (instructed by Titmuss Sainer & Webb) appeared for the
claimants; Christopher Lockhart-Mummery (instructed by the solicitor to Lewes
District Council) for the compensating authority.
Giving his
decision, MR WELLINGS said: This is a preliminary issue as to whether the Lands
Tribunal has jurisdiction to entertain a reference claiming compensation for
loss alleged to be due to a prohibition contained in a stop notice. The answer
to that question depends on whether or not the claim for compensation made by
the claimants was made within the statutory time-limits.
Section 177 of
the Town and Country Planning Act 1971 provides:
(1) A person who, when a stop notice under
section 90 of this Act is first served, has an interest in or occupies the land
to which the stop notice relates shall, in any of the circumstances mentioned
in subsection (2) of this section, be entitled to be compensated by the local
planning authority in respect of any loss or damage directly attributable to
the prohibition contained in the notice . . .
(2) A person shall be entitled to compensation
under subsection (1) of this section in respect of a prohibition contained in a
stop notice in any of the following circumstances:
(a) The enforcement notice is quashed on grounds
other than those mentioned in paragraph (a) of section 88(2) of this Act;
(3) . . .
(4) A claim for compensation under this section
shall be made to the local planning authority within the time and in the manner
prescribed by regulations under this Act.
(5) . . .
(6) . . .
Under section
179 of the Act, any question of disputed compensation in respect of stop
notices is to be referred to and determined by the Lands Tribunal. It also
provides that in relation to the determination of any such question, the
provisions of sections 2 and 4 of the Land Compensation Act 1961 are to apply,
subject to any necessary modifications and to the provisions of any regulations
made under the Act (section 179(2)).
The procedure
and time-limits for making claims for compensation of this kind are set out in
regulation 14 of the Town and Country Planning General Regulations 1976.
Regulation 14(1) says that a claim for compensation made to a local planning
authority under inter alia section 177 of the Act of 1971 ‘shall be in
writing and shall be served on that authority or council by delivering it at
the offices of the authority or council, or by sending it by pre-paid post’.
Regulation 14(2) is as follows:
The time
within which any such claim . . . shall be served shall be —
(a) In the case of a claim for compensation, six
months . . . from the date of the decision in respect of which the claim or
notice is made or given:
Provided that
the period may be extended by the Secretary of State in any particular case.
There is an agreed
statement of facts and issues. A copy of it is annexed to this decision. I can
summarise the agreed statement as follows.
The claimant
is the occupier of premises known as Units 2-5, Malling Brooks Estate, Lewes,
East Sussex, and the Lewes District Council is the local planning authority for
the area in which those premises are situated. On July 21 1977 planning
permission was granted by the council for the erection of the premises, which
consist of warehouses with ancillary offices and other uses, but subject to a
condition that the premises should be used only for warehousing and uses
ancillary thereto.
On October 23
1979 the claimant applied for planning permission to use the premises without
complying with the relevant condition. That permission was refused on November
23 1979 and on that date an enforcement notice was served alleging that there
had been a breach of the relevant condition. On November 23 1979 a stop notice
was also served by the council prohibiting the installation within the premises
of various fittings in connection with the use of the said premises as a retail
warehouse (see para 7 of the agreed statement). The stop notice took effect on
November 30 1979.
Enforcement notice
quashed
Ultimately the
secretary of state quashed the enforcement notice and allowed an appeal by the
claimant under section 36 of the Act of 1971 and granted planning permission
for the use of the premises for purposes stated in para 8 of the agreed
statement without complying with the relevant condition. On February 18 1981
the compensating authority issued a notice of motion in the High Court for an
order that inter alia the decision of the secretary of state might be
remitted to him for rehearing and determination on the ground that he had erred
in law.
Para 9 of the
agreed statement says that on August 14 1981 the compensating authority
received a claim from the claimant for compensation dated August 12 and 13
1981. Both parties treat the date (January 27 1981) of the secretary of state’s
decision letter as being the date from which the statutory six months’
time-limit runs. Accordingly, if the claimant’s claim for compensation was made
as late as August 12, 13 or 14 1981, it was out of time.
Para 10 of the
agreed statement shows that on September 22 1981 the claimant applied to the
secretary of state for an extension of time under regulation 14(2) of the 1976
regulations and the point was taken in the application that the claim for
compensation had not been made out of time because of the council’s appeal to
the High Court. That point has not been taken before me.
The secretary
of state took the view that he had no power to extend the time (para 11). No
application for judicial review of that decision was made. The council’s notice
of motion was withdrawn on January 24 1984. On May 31 1984 the claimant
submitted to the council a revised claim for compensation (see para 13).
The claim for
compensation referred to in para 9 of the agreed statement and the revised
claim referred to in para 13 were detailed claims, quantified in terms of
money.
Mr Guy Seward
QC and Mr George Bartlett, appearing for the claimant at the hearing of the
preliminary issue, did not rely on the claims referred to in paras 9 and 13 of
the agreed statement, save as particulars of a claim already made. They relied
on a passage in a letter not referred to in the agreed statement. The letter
was dated January 28 1981, one day after the date of the secretary of state’s
decision, and was from the claimant’s solicitors to the district solicitor of
the council. The passage relied upon was as follows:
Arising out
of the quashing of the enforcement, and therefore of the stop notices, it seems
to us that our clients are entitled to compensation and costs in relation to
the appeal against the enforcement and stop notices and would be pleased to
hear from you that your council recognises its liability under these heads. In
the meantime our clients will be formulating their various heads of claim with
a view to a formal submission of the claim to your council in due course.
It is implicit
in the agreed statement that no claim for compensation was made by or on behalf
of the claimant before August 12 1981. The correspondence which followed the letter
dated Janaury 28 1981 gave no clue that the claimant was going to suggest that
that letter constituted a claim for compensation. Thus in the claimant’s
solicitors’ letter dated May 20 1981 to the council’s agents, those solicitors
said:
Our clients
have now given us details of their claim for compensation. We need some
additional instructions but expect shortly to be able to submit it.
That letter,
like others, contemplates a future claim. After the six months’ period had
expired on July 27 1981, the claimant’s or its solicitors’ attitude was
consistent with its attitude before that date. Thus in those solicitors’ letter
dated November 13 1981 to the council’s agent, the solicitors indicated that
they took the view that the claim for compensation, having been made in August
1981, was three weeks out of time, explained the delay and stated ‘that the
fact that we were only three weeks out of time is most material’. Similarly, in
a letter dated September 22 1981 to the secretary of state, the solicitors stated
that in the letter dated January 28 1981 they intimated to the council ‘that a
formal submission of a claim would be made in due course’, and later in the
same letter they made a further statement to the same effect. Even at the
hearing, the claimant did not seek to make any amendment to the agreed
statement.
Mr Seward
accepted all these criticisms, but his case was quite simply that the question
was one of the proper construction of the letter dated January 28 1981 and he
submitted that on its true construction the passage in it which I have quoted
fulfilled the requirements of the regulations as to the manner in which the
claim was to be made. It fulfilled also the requirements as to time. He said
that the claimant had wrongly thought that it had not made a claim prior to
August 1981, but what the claimant had thought was not material, because the
question was one of construction.
Mr
Lockhart-Mummery appearing for the compensating authority said that the Act and
regulations contemplated formality and required an unequivocal claim to be
made. That was apparent from the use of the words in regulation 14(1): ‘claim
in writing’, ‘served’ and ‘delivering’. In his submission, a claim under this
section must claim a liquidated sum or a sum which was, if not quantified,
quantifiable. If that were done it might not be strictly necessary for the
claim to include a breakdown of the sum claimed. Third, he said, any document
which is alleged to have been a claim must have been intended to constitute a
claim. The relevant passage in the letter dated January 28 1981 spoke of an
intention to make a claim and did not in fact make one. The claim was, Mr
Lockhart-Mummery said, made as stated in the agreed statement, at the earliest,
on August 12 1981.
No particular
form for claim
In reply, Mr
Seward said that the relevant passage in the letter dated January 28 1981
indicated clearly to the council that a claim for compensation was being made
and in that passage the council was asked to accept liability. There was no
requirement in section 177 or the Regulations that a claim for compensation
should state a sum and no requirement of formality. The question was one solely
of construction.
In my opinion,
section 177 and Regulation 14 do not require that a claim for compensation in
respect of a stop notice should be in any particular form or that it should
state the sum claimed or that it should be a detailed claim. Of course a
document which is alleged to constitute a claim must be unequivocal: it must
make clear to the authority in question that a claim is being made; not that a
claim is to be made in the future. I agree with Mr Seward that the question in
the present case is one of construction of the relevant passage in the letter
dated January 28 1981. In my view, in construing that passage, it is right that
a benevolent construction should be used.
In my
judgment, the passage brought to the notice of the council that a claim was
then being made against it and that the reference to a formal submission of the
claim in due course was a reference to an intention to file particulars of it.
If the intention in the passage were merely to give warning that in the future
a claim was going to be made, then the request that the council should
recognise its liability for compensation would hardly be apt until the claim
had been made.
Accordingly,
in my opinion, the relevant passage constituted a claim in itself and the
claims referred to in paras 9 and 13 of the agreed statement, so far from being
claims, were further and better particulars of a claim already delivered. The
consequence is that the claim for compensation was not out of time and that the
Lands Tribunal has jurisdiction to entertain the reference herein. I
accordingly answer the preliminary issue in favour of the claimant.
In coming to
the above decision, I have received some comfort from the decision of the House
of Lords in Thompson (Pauper) v Good & Co [1910] AC 409. That
decision was not cited to me, but there was, perhaps, no reason why it should
have been cited, because it is concerned with a different Act, namely, the
Workmen’s Compensation Act 1897. In that case, Lord Loreburn LC said at p 410:
This Act says
that ‘the claim for compensation’ must be made within six months of the
accident. It has been held in the Court of Appeal that unless the amount
claimed has been specified there has been no ‘claim for compensation’. I cannot
see why it should be so. There is no such provision in the Act itself; I mean
in its actual terms. If a man says, as admittedly the appellant did say, ‘I
claim compensation’, why are we to conclude that he did not so claim? The reasoning for the respondent is that,
unless a sum is named, the employer is deprived of an opportunity of settling
the claim, and so avoiding proceedings under the Act. Surely, if he wants to
know, he can ask the question, or he can make an offer himself . . . It is
enough that the Act does not say the amount is to be specified, and, with all
respect, we must construe it as it stands.
The
compensating authority will pay the costs of the claimant such costs if not
agreed to be taxed by the Registrar of the Lands Tribunal on the High Court
Scale of Costs.
APPENDIX
Statement of
facts and issues
1 The claimant is the occupier of premises
known as Units 2-5, Malling Brooks Estate, Lewes, East Sussex.
2 The compensating authority is the local
planning authority for the area in which the premises are situated.
3 On July 21 1977 planning permission was
granted by the local planning authority for the erection of the premises
consisting of warehouses with ancillary offices and a builders’ merchant (with
trade and retail counter) subject to, inter alia, condition 3: ‘The
premises shall be used only for warehousing and uses ancillary thereto.’ That planning permission was implemented.
4 On October 23 1979 the claimants applied for
planning permission to use the premises without complying with the said
condition 3.
5 That permission was refused by the local
planning authority by notice dated November 23 1979.
6 An enforcement notice dated November 23 1979
was served by the compensating authority on the claimant (then known as Home
Charm Retail Ltd) alleging that there had been a breach of planning control by
non-compliance with the said condition, in that following the carrying out of
internal works for the conversion of the warehouse to a retail warehouse and
the employment of staff on the premises required for the purpose of organising
and operating a retail warehouse, all such activities amounting to a use of the
premises not covered by the said condition.
7 A stop notice dated November 23 1979 was
served by the compensating authority on the claimant (then known as Home Charm
Retail Ltd) prohibiting the installation within the said land of retail display
stands, units and shelving and customer pay-out desks in connection with the
use of the said land as a retail warehouse. The stop notice took effect on
November 30 1979.
8 Following an appeal, the Secretary of State
for the Environment issued his decision letter on January 27 1981. The
secretary of state quashed the enforcement notice on the ground contained in
para (b) of section 88(2) of the Town and Country Planning Act 1971 that the
matters alleged in the notice did not constitute a breach of planning control.
Further, he allowed the appeal under section 36 of the Town and Country
Planning Act 1971 and granted planning permission for the use of the premises
as a retail builders’ merchants/home-care centre without complying with the
said condition, subject to certain further additional conditions. He also
allowed one appeal and dismissed another appeal in relation to certain proposed
advertisements. On February 18 1981 the compensating authority issued a notice
of motion in the High Court for an order that, inter alia, the decision of
the Secretary of State for the Environment might be remitted to him for
rehearing and determination on the grounds that he had erred in law.
9 On August 14 1981 the compensating authority
received a claim from the claimant for compensation, dated August 12 and 13
1981.
10 By letter dated September 22 1981 the
claimant applied to the Secretary of State for the Environment under regulation
14 of the Town and Country Planning General Regulations 1976 for an extension
of the time for making a claim for compensation under section 177 of the Town
and Country Planning Act 1971. The application was expressed to be made without
prejudice to the claimant’s contention that the claim was not made out of time,
by virtue of the facts that the compensating authority had appealed to the High
Court and was stated to be made in order to avoid incurring considerable costs
and an unnecessary controversy as to whether the claim was, or was not, out of
time.
11 In a letter dated December 10 1981 the
Department of the Environment took the view that the secretary of state had no
power to extend the time under regulation 14 where the period for making the
claim had expired.
No
application for judicial review of this decision was made by the claimant.
12 On January 24 1984 the notice of motion
referred to in para 8 above was withdrawn by the compensating authority with
the consent of the Secretary of State for the Environment and the claimant.
13 On May 31 1984 the claimant submitted to the
compensating authority a claim for compensation under section 177 of the Town
and Country Planning Act 1971.
14 The claimant began trading from the premises
on April 11 1981.
15 The claimant claims that by reason of its
inability to trade from the premises between January 1 1980 and April 11 1981,
it suffered loss as detailed in its summary of claim, which loss was, it
alleges, directly attributable to the prohibition contained in the stop notice.
The preliminary issue arises as to whether, on the basis of the above facts,
the Lands Tribunal has any jurisdiction to entertain the claimant’s claim.
16 The substantive issue which the claimant
seeks to have determined by the Lands Tribunal is whether, by reason of the
facts stated above, the claimant is entitled to compensation from the compensating
authority under section 177 of the Town and Country Planning Act 1971 in the
sum shown in its summary of claim.
