Town and Country Planning Act 1971, sections 180(1) and 183(3) — Purchase notice — Appeal from decision of Webster J who quashed decision of Secretary of State refusing to confirm a purchase notice served by owners of land on local authority — Land subject to purchase notice consisted of about 37 acres, part of which could be used for livestock grazing and hay production and part was incapable of reasonably beneficial use — The owners, whose application for planning permission for residential use had been refused, served a purchase notice on the local authority covering the whole of the 37 acres — The authority were unwilling to comply with the notice, and the Secretary of State refused to confirm it, on the ground that it had not been shown that the whole of the land was incapable of reasonably beneficial use — Part of the land covered by the notice was capable of such use — Webster J construed the words in section 180(1)(a) of the 1971 Act, ‘the land has become incapable of reasonably beneficial use’, to mean ‘the land taken as a whole’, not ‘each constituent part of the land’, and quashed the Secretary of State’s decision — Held by Court of Appeal that, reading section 180(1) and section 183(3) together, this construction was incorrect — If a part only of the land is incapable of reasonably beneficial use and the other part is capable of such use, the owner cannot insist on the local authority buying the whole; he can only insist on their buying the part which is incapable — In the present case the purchase notice related to the whole land, but part of it was capable of reasonably beneficial use — Appeal accordingly allowed
This was an
appeal by the Secretary of State for the Environment from a decision of Webster
J, reported at (1981) 259 EG 857, [1981] 2 EGLR 160, quashing a decision of the
Secretary of State, who had refused to confirm a purchase notice. The notice
was served by Wigan Metropolitan Borough Council on Arthur Wain and others,
owners of the land subject to the notice situated at Martland Mill, Wigan.
Simon Brown
(instructed by the Treasury Solicitor) appeared on behalf of the appellant; N R
Macleod QC and J Howell (instructed by Sidney Torrance & Co, agents for
Ellison, Blank, Goldsmith & Co, of Manchester) represented the respondents,
Arthur Wain and others, the owners of the land; Wigan Metropolitan Borough
Council and Greater Manchester County Council, the second and third
respondents, were not represented and took no part in the proceedings.
Giving
judgment, LORD DENNING MR said: Under the Town and Country Planning Act of 1971
there are provisions by which the owner of the land can compel the local
council to buy his interest in the land. The land here is an area of 37 acres,
about a couple of miles north of the town centre of Wigan. It is geographically
and naturally divided into two halves. The southern half was in former time
part of a farm called Martland Mill Farm. It is at a higher level than the
northern half. The southern half is gently undulating, with several gullies
running through it, dotted with thorn bushes and much of it covered with grass,
some of it waist high. In one of the corners of it there was a Dutch barn and
one or two buildings which are becoming dilapidated. The northern part of the
site is at a lower level. It is covered with a mixture of grass, weed and reed,
with concrete protrusions marking a line, a reed-covered pond, and the like.
The planning
inspector, after a full inquiry, placed those two halves in different categories,
with regard to their reasonable beneficial use. The southern half, which is
about 56 per cent of the whole, could be used for livestock grazing and hay
production. It has not got enough buildings for winter shelter, but it
certainly could be used quite usefully for grazing and hay in the spring and
summer months. It could, with making good some of those buildings, without any
extra planning permission, be made into reasonably beneficial use.
The northern
half is different. It would need a substantial initial outlay to reclaim it at
all or to bring it into any form of agricultural use. The return even then
would not be such as to warrant the outlay. So the northern half has become
incapable of reasonably beneficial use.
That is the
important point of this case. The southern half is capable of reasonably
beneficial use, whereas the northern part is not.
The owners of
the land some little time ago applied to the local planning authority for
permission to develop the land. They applied for the whole of the area, the
whole 37 acres, to be developed. One application was for residential
development. The other was for making the roads and infrastructure for
industrial development.
Those
applications were made to the local authority. In each case the local authority
turned them down. There was no need for housing development and the area was
unsuitable for industrial development. That refusal opened the way for the
owners of the land to apply under the statutory provisions to the local council
to buy up the land.
The point is
this. The owners of the land say that the local council are bound to purchase
the whole of the 37 acres. If that be so, it might be the total price would be
quite high, because the southern half is capable of beneficial use. But the
council say that they can apply only for the northern half which is useless —
the price of it would be very low.
The section on
which the case depends is section 180(1):
Where, on an
application for planning permission to develop any land, permission is refused
or is granted subject to conditions, then if any owner of the land claims — (a)
that the land has become incapable of reasonably beneficial use in its existing
state . . . he may serve . . . a notice
on the local
council
requiring
that council to purchase his interest in the land. . . .
The local
council say that that only applies when all the land has become
incapable of reasonably beneficial use in its existing state. So section
180(1)(a) means that the whole of the land has become incapable of
reasonably beneficial use. In this case they say that it is not. Only the
northern part has become incapable of reasonably beneficial use in its existing
state. The southern half has not. So on that ground the local council, and now
the Secretary of State, says this compulsory purchase provision does not apply.
The section only applies when all of the land is incapable of reasonably
beneficial use.
That
interpretation of this section is borne out by section 183(3) of the Act. It
deals expressly with the position of part of the land as distinct from the
whole of it. It says:
If it appears
to the Secretary of State that the land, or any part of the land, could
be rendered capable of reasonably beneficial use within a reasonable time by
the carrying out of any other development for which planning permission
ought to be granted, he may, in lieu of confirming the purchase notice, or in
lieu of confirming it so far as it relates to that part of the land, as
the case may be, direct that planning permission for that development shall be
granted in the event of an application being made in that behalf.
That section
seems to me to be directed at a case where part of the land is not now
reasonably capable of beneficial use, but if planning permission were given it
could be developed so as to be rendered capable of reasonably beneficial use.
The subsection says that in such a case as that the Secretary of State can say:
‘Well, I will give planning permission for the part which can reasonably be
developed, and I will confirm the purchase notice in regard to the other part
which cannot in any event be reasonably developed.’
Reading
section 183(3) with section 180(1) it seems to me to fit everything together.
If a part of the land only is incapable of reasonably beneficial use and
the other part is capable of reasonably beneficial use as it is, the
owner cannot insist on the council buying the whole. He can only insist on
their buying the part which is incapable.
I need not
pursue it further. It seems to me the judge was in error in the interpretation
which he eventually put upon the section. The true interpretation is that the
owner cannot claim the right to have the council purchase his land
compulsorily, except when all the land has become incapable of reasonably beneficial
use. If part of the land is capable of reasonably beneficial use, then he
cannot insist on a compulsory purchase.
I would allow
the appeal accordingly.
OLIVER LJ: For
the reasons given by my lord, the Master of the Rolls, I agree that the appeal
should be allowed.
WATKINS LJ: I
also agree.
The appeal
was allowed with costs in the Court of Appeal and below. The Secretary of
State’s order not confirming the purchase notice was restored.
