Town and Country Planning Act 1971, section 52 — Planning authority successful on a point of construction, but their claim without merit in litigation which should never have been started — Authority and developers had been in negotiation about development of adjoining sites and eventually reached two agreements, one of them under section 52 — The agreements contemplated development which would necessarily involve the demolition of buildings on the developers’ site — Authority then designated as a conservation area, pursuant to section 277 of the 1971 Act as amended by the Town and Country Amenities Act 1974, the land which the developers intended to develop — As a result of section 277A(2) of the 1971 Act as amended, the consent of, the authority was necessary for the demolition of the developers’ existing buildings — ‘In these circumstances, by any standards other than those which are sometimes applied in town halls, the problem of consent to demolish could, indeed should, have been settled without recourse to litigation’ — Developers started to demolish their buildings without consent and the authority took proceedings against them — Fox J held that in view of section 52(3) of the 1971 Act the authority could not use any of their statutory powers to prevent the demolition of the buildings — Held by Court of Appeal that section 52, ‘a most difficult section to construe’, did not prevent the planning authority from enforcing its powers under section 277A in a conservation area — Consequently the developers were not entitled to demolish the buildings without the authority’s consent — Appeal to this limited extent allowed
In this appeal
the Royal Borough of Windsor and Maidenhead, as planning authority, appealed
against the dismissal by Fox J (as he then was) of their claim that the
respondents, Brandrose. Investments Ltd, were not entitled to demolish certain
buildings at 107-111 Peascod Street, Windsor.
Lionel Read QC
and Timothy Stow (instructed by P B Smith, Town Hall, Maidenhead) appeared on
behalf of the appellants; Kenneth Bagnall QC and Kirk Reynolds (instructed by
Lovegrove & Durant, of Windsor) represented the respondents.
Giving the
judgment of the court, LAWTON LJ said: This is an appeal by the plaintiffs, the
Royal Borough of Windsor and Maidenhead, against an order made by Fox J (as he
then was) on February 6 1981, whereby he dismissed the plaintiffs’ claim
against the defendants, Brandrose Investments Ltd, for a declaration that the
defendants had not been entitled in law to demolish, as they had done, certain
buildings known as 107-111 Peascod Street, Windsor.
The plaintiffs
in this court have accepted that their claim has no merit and that it could
have been dismissed by the judge on the ground that it was not a proper case
for the making of the declaration claimed. They have appealed, so their
counsel, Mr Read, told us, because the judge, when dismissing their claim gave
as his reason for doing so his construction of section 52 of the Town and
Country Planning Act 1971, which they submitted was wrong and which, if not
corrected by this court, was likely to have serious consequences in the
application and administration of planning legislation.
In or about
1973 the defendants, who are property developers, had, or expected to get,
proprietary rights over 107-111 Peascod Street, which is part of the main
shopping area of Windsor and near the castle. The plaintiffs owned land to the
rear of 107-111 Peascod Street. Both parties wanted to develop what they had
got. Between 1973 and 1975 they negotiated to see whether they could develop
their holdings together. These negotiations came to nothing. The plaintiffs
then started compulsory purchase proceedings to acquire the defendants’ holdings.
These proceedings were compromised. Two agreements, both dated January 22 1976,
gave effect to the compromise. Their general purport, so far as relevant to
this appeal, was as follows: a building line was agreed. The defendants were to
develop the Peascod Street side of it, the plaintiffs the other. Pieces of land
on the wrong side of the building line from each party’s standpoint were to be
exchanged. The declared object of the exchange was to enable each party
‘successfully to complete its own development’: see the third recital of the
land exchange agreement. The other agreement was declared to be made by the
plaintiffs as ‘local planning authority’ and its third recital was in these
terms: ‘It is intended that the development of the land of the developer’ —
that is the defendants — ‘and the incidental development of the corporation’s
land shall be regulated in accordance with the provisions of section 52 of the
Town and Country Planning Act 1971.’
Clause 2(a) provided as follows: ‘The corporation hereby covenants and
agrees with the Developer that the Developer may build up to the said line ‘X’
‘Y’ ‘Z’ and along its length at levels ‘B’ ‘D’ and ‘E’ on the said plan no
2.’ There followed detailed provisions
about building heights. In this court it was accepted by the plaintiffs that
the defendants could not start the development contemplated by these two
agreements without demolishing the buildings which then stood in Peascod
Street. These buildings had no architectural or historic interest in themselves
but while standing they formed part of an attractive town vista towards the
castle.
On October 5
1976 the plaintiffs granted the defendants outline planning permission to
develop their Peascod Street site along the lines contemplated by the two
agreements; but the parties had difficulty in agreeing the details of the
design and external appearance of the buildings to be erected. These were not
settled until the beginning of 1982.
On March 29
1978 the plaintiffs designated an area, which included the part of Peascod
Street which the defendants intended to develop, as a conservation area
pursuant to section 277 of the Town and Country Planning Act 1971 as amended by
the Town and Country Amenities Act 1974. Section 277A(2) of the 1971 Act, as
amended, provided that ‘A building to which this section applies shall not be
demolished without the consent of the appropriate authority’. The section did
apply to Peascod Street. Subsection (3) made it clear that consent to
demolition had to be given specifically and was not to be inferred from the
grant of planning permission. It followed, prima facie that once the
conservation order had been made the defendants could not lawfully demolish the
buildings standing on their land in Peascod Street, which had to be demolished,
as the plaintiffs well knew, before the defendants could start the development
which the plaintiffs had given them planning permission to carry out and which
the plaintiffs had intended to be part of a large-scale development of an
important part of Windsor’s main shopping area. In these circumstances, by any
standards other than those which sometimes are applied in town halls, the
problem of consent to demolish could, indeed should, have been settled without
recourse to litigation. The plaintiffs had acquired benefits under the two
agreements by reason of the exchange of land and the arrangements for building
up to an agreed line without regard to ancient lights and certain rights of
way. Provided they were satisfied that the defendants did not intend, after
demolishing the existing buildings, to leave an ugly gap in Peascod Street for
a long time they could not properly have refused consent to demolish.
Unfortunately,
on or about June 29 1979, whether through ignorance or wilfully and without the
plaintiffs’ consent, the defendants started to demolish their buildings. Even
if the defendants had behaved wilfully the plaintiffs should have been able to
deal with the problem without recourse to law. They preferred to call the law
in aid.
On July 2 1979
they applied for and obtained ex parte an injunction restraining the
defendants for a short time from demolishing or continuing to demolish their
buildings in Peascod Street. The next day they issued a writ claiming an
injunction to restrain the defendants from demolishing the buildings and a
declaration that they were not entitled to demolish them. In addition they
served the defendants with two enforcement notices. They next applied to Walton
J for their ex parte injunction to be continued until trial. On July 11
1979 he refused to make such an order, giving as a reason that the agreement
which the plaintiffs, as local planning authority, had made with the defendants
pursuant to section 52 of
demolish the buildings. The defendants went on doing so.
Despite this
lack of initial success the plaintiffs pursued their claim but without marked
diligence. A statement of claim was delivered on February 27 1980 claiming only
a declaration. By this date the buildings had been demolished, so there was no
point in asking for an injunction. The defendants delivered a defence on May 16
1980. For the purposes of this appeal, the important paragraph in their defence
was in these terms:
. . upon a
true construction of section 52 of the said Act and of the agreement made
thereunder dated January 22 1976, and by reason of the other matters
hereinbefore referred to, the plaintiffs’ power to include the defendants’ said
land and buildings in a conservation area could be exercised only in accordance
with the terms of any statutorily authorised development plan. The plaintiffs’
purported exercise of their said powers was not in accordance with any such
plan, and was for that reason also void and of no effect.
They then
applied by summons to strike out the plaintiffs’ statement of claim as
disclosing no cause of action. That summons was adjourned into court before Fox
J and heard by him on February 6 1981. By this time the enforcement notices had
been withdrawn. On learning what was involved in the case and that all the
facts were agreed the judge suggested that the hearing should be treated as the
trial of the action. Both parties agreed. After argument he dismissed the
plaintiffs’ claim. He stated his conclusion in these terms:
My
conclusion, therefore, is the same as that of Walton J, namely, that in view of
section 52(3) the plaintiffs cannot use any of their statutory powers against
the defendants to prevent the demolition of the buildings, unless what the
plaintiffs are proposing is in accordance with the development plan. There was
not, and is not, any development plan. The result, in my view, is that the
plaintiffs could not enforce their powers under section 277A in relation to the
extension of the conservation area, so as to prevent the demolition of these
Peascod Street buildings.
It is that
conclusion which has led to this appeal, the determination of which, in our
judgment, turns upon the construction of section 52 when considered in its
context in the 1971 Act as amended. We regard the context as a most important
aid to the construction of section 52. Both in and out of context, however,
section 52 is a most difficult section to construe. Mr Read, with all his
experience of this planning legislation, was driven to concentrate upon what
subsection (3) did not mean rather than on what it did.
We start with
its position in the Act. Section 52 comes in Part III, which is headed ‘General
Planning Control’. Planning control applies to development as defined in section
22 and planning permission is required, subject to exceptions, for the carrying
out of any development of land. There are to be local planning authorities to
whom applications for planning permission shall be made. Specific classes of
person likely to be affected by the grant of planning permission are to be
given notice of applications (see sections 26, 27 and 28). Under section 29
local planning authorities are to determine applications for planning
permission but when doing so they ‘shall have regard to the provisions of the
development plan, so far as material to the application, and to any other
material considerations’ and may grant planning permission, unconditionally or
subject to such conditions as they think fit, or refuse. Section 29 is the lynch
pin of this Part of the Act. When exercising their powers under it a local
planning authority are performing a public duty. They cannot bind themselves in
advance as to how they will perform it, or can they do more than what the Act
says they can do. They can impose conditions upon the grant of planning
permission but they have no power under section 29, or any other section, to
make an applicant comply with their conditions: but if he fails to do so his
planning permission will lapse. An applicant, however, may be willing to
undertake to comply with the conditions. He may indicate his willingness in
negotiations with the local planning authority before making an application, as
may happen when a large-scale development is being planned; or he may do so when
he learns what conditions the local planning authority intend to impose.
Section 52(1) empowers a local planning authority to make agreements to achieve
ends which it could not achieve without the consent of an applicant for
planning permission. It does not empower a local planning authority to grant
planning permission otherwise than as provided by sections 26 to 29 of the Act.
It follows that an agreement made pursuant to section 52 before planning
permission has been granted, as the relevant agreement in this case was, may
become irrelevant if planning permission is not granted or ineffective if
conditions are imposed inconsistent with the agreement because circumstances
may change between the time when a section 52 agreement is made and when the local
planning authority comes to perform its public duty of determining a planning
application. Were the law otherwise, section 52 agreements would be the
equivalents of planning permissions to the prejudice of those entitled under
sections 26 to 28 to object to grants. Section 52(2) enables a local planning
authority to enforce an agreement made under subsection (1) against persons
deriving title from the other party to the agreement. Mr Bagnall, on behalf of
the defendants, did not suggest that the relevant agreement in this case
operated to give the defendants planning permission. They did not think it had
done so when they made it because they applied for planning permission in
October 1976; and even if it had operated to grant planning permission, it would
not have got rid of the need for consent to demolish under the conservation
order unless section 52 conferred such a power. As we have already pointed out,
subsection (1) confers powers which are merely incidental to the granting of
planning permission. We can see no other purpose behind that subsection. Nor
can we construe the difficult subsection (3) as restricting the exercise by a
local planning authority of any of its statutory powers which it has a public
duty to exercise. It is trite law that a statutory body which has public duties
to perform (and a local planning authority is such a body) cannot lawfully
agree not to exercise its powers. Under section 277(1) of the 1971 Act, as
amended:
Every local
planning authority shall from time to time determine which parts of their area
are areas of special architectural or historic interest the character or
appearance of which it is desirable to preserve or enhance, and shall designate
such areas as conservation areas.
The plaintiffs
performed this statutory duty and decided to include part of Peascod Street in
a new conservation area. There is no suggestion, and certainly no evidence,
that they acted in bad faith. The Act provides no means for persons claiming to
be adversely affected by a conservation order to get it set aside. Once such an
order has been made, section 277A(2) applies. Local planning authorities were
given no dispensing powers but the Secretary of State was — see subsection (4).
He has given directions under that subsection. One of them is that section 277A
shall not apply to ‘. . . (d) Any building required to be demolished by virtue
of any provisions of an agreement made under section 52 of the Act’ — see
Circular no 23 of 77. It was accepted by Mr Bagnall in this court that the
section 52 agreement in this case did not require the defendants to demolish
any buildings. In these circumstances we find it impossible to say that there
is anything in either section 52 itself or in the section 52 agreement which
should have inhibited the plaintiffs from including 107-111 Peascod Street in
the conservation area.
Whatever
subsection (3) of section 52 means, and we share Mr Read’s bemusement, it
cannot in our judgment be construed as empowering a local planning authority to
bind itself not to exercise the powers given to it by section 277 of the Act
which it has a public duty to exercise.
It follows
that the defendants were not entitled to demolish their buildings without the
plaintiffs’ consent and that they have suffered no damage as a result of the
plaintiffs obtaining an ex parte injunction on July 2 1979. In the exercise of
discretion we would not, however, grant the plaintiffs the declaration which
they claimed. In our opinion this litigation should never have started. To the
limited extent indicated we would allow the appeal. We will, of course, hear
arguments as to costs.
Appeal
allowed as indicated. Each party to pay own costs both of trial and appeal.
Leave to appeal to House of Lords refused.