Thomas Langley Group v Royal Leamington Spa Borough Council (now Warwick District Council)

Compensation–Purchase notice–Successive planning permissions either inconsistent, or consistent only on the basis that the later one constituted an agreed variation of the rights conferred by the earlier one–By acting on the later permission, developer abandoned rights earlier granted–Lands Tribunal’s award of £500 for 2-acre site devoted to open space confirmed by court This was an appeal by the Thomas Langley Group Ltd from a decision of the Lands Tribunal dated May 10 1973 assessing at £500 the compensation payable by the respondents, the Borough of Royal Leamington Spa (now Warwick District Council), on acquisition, pursuant to a purchase notice, of two acres of land forming part of the Campion Estate, Leamington Spa. The decision of the Lands Tribunal was reported at (1973) 228 EG 339. Mr P Freeman QC and Mr J M Sullivan (instructed by Southall & Co, agents for Southall & Co, of Birmingham) appeared for the appellants, and Mr R P Ground (instructed by C J George, of Leamington Spa) represented the respondents. Giving the judgment of the court, ORR LJ said: The appellants in this case referred to the Lands Tribunal the assessment of compensation payable to them by the respondents, the Borough of Royal Leamington Spa (whose functions have since been taken over by the Warwick District Council), as a result of the respondents’ compulsory acquisition, under the provisions of Part VIII of the Town and Country Planning Act 1962, of some two acres of land situated on the appellants’ Campion Estate in Leamington Spa; and this appeal is now brought, on the ground that it is too low, against the Lands Tribunal’s assessment of the compensation in the sum of £500. We do not find it necessary to refer in any detail to the provisions of Part VIII of the Act. It is sufficient for present purposes to say that where, on an application for planning permission to develop any land, permission has been refused or has been granted subject to conditions, and provided that certain requirements are satisfied as to the incapacity of the land in question for reasonably beneficial use, those provisions enable the landowner to serve on the local authority a notice requiring it to purchase his interest, and if it refuses to do so the appropriate Minister, if satisfied as to certain matters, may confirm the notice, and thereupon the local authority is deemed to be authorised to acquire the interest compulsorily under the provisions of Part V of the Act, and to have served for that purpose a notice to treat, with the result that in the absence of agreement the amount of the compensation payable for the acquisition falls to be assessed by the Lands Tribunal. On the reference to assess the compensation in this case the Lands Tribunal were not concerned with any issue of valuation, it being agreed between the parties that if an outline planning permission admittedly granted by the respondents on June 5 1964 in respect of a larger area embracing the two acres remained effective at the time of the compulsory acquisition the compensation should be £5,000, but that if that permission did not remain effective the compensation should be £500. The sole issue before the Lands Tribunal was therefore whether this outline permission remained valid; it being contended for the claimants that it did, and for the local authority that it had been abandoned by the claimants. The conclusion of the Lands Tribunal was that it had been abandoned, and the main issue in this appeal is whether that conclusion was justified on the material before the tribunal, which consisted of an agreed statement of facts together with the plans and other documents therein referred to and may be summarised as follows, the respondents being referred to for this purpose as ‘the council.’ The Campion Estate (which we will call ‘the estate’), comprising some 13 acres, was formerly a clay works and brickyard, and was shown both on the 1956 Leamington Spa town map and on the amended town map operative from February 1969 as land allocated for surface mineral workings with the notation SM/brickclay. The two acres, situated approximately in the middle of the estate, which became the subject of the compulsory acquisition, and which we shall refer to as ‘the two-acre site,’ had been worked as a deep clay pit. On February 5 1964 the claimants applied to the council for outline planning permission for residential development of the estate, enclosing for that purpose only a site plan which gave no indication of the proposed development, and it is common ground that on June 5 1964 the council granted outline planning permission for residential development of the whole of the estate, subject (inter alia) to the following conditions: 3  No building shall be erected pursuant to this permission until the expiration of a period of ten years after satisfactory completion of filling. 5  This permission shall cease to have effect at the expiration of a period of three years from the period referred to in condition 3 above unless all necessary detailed drawings and particulars shall previously have been submitted to and approved by the local planning authority. On February 17 1965 the claimants purchased the estate. On February 22 they applied for permission to carry out development described as ‘Erection of detached and semidetached houses (residential),’ and appended to the application a plan showing a proposed layout of 147 houses. On March 16 1965 the council refused this permission, giving the following among other reasons for the refusal: 1  The outline permission prohibits development until ten years after satisfactory completion of filling the clay workings and submission of details at this time is therefore premature. 19 4  There is no provision of public open space which is considered to be a necessary amenity in an estate of this size. Following this refusal, the council’s engineer wrote to the claimants a letter dated March 24 1965 which referred to the council’s first reason for their refusal and continued as follows: I appreciate that this may give rise to a conflict between the three and ten year periods in the conditions attached to the outline permission and if you will submit a further outline application I will place it before the council with a view to regularising the matter. I understand that you propose to submit an application for carrying out the development in stages. Such an application should be for stage I only, with details of the further stages shown on the plan. The other stages would be the subject of subsequent applications when you were ready for starting them. To assist you in preparing satisfactory proposals for such an application I give below preliminary observations on the plans which have been refused. . . . 2 An estate accommodating 450/500 persons should include some public open space. I consider that an area of two acres would be reasonable and I see no objection to part of the filled ground being used for this purpose. In this letter the engineer was clearly under a misapprehension that the 10-year and the three-year periods referred to in conditions three and five of the 1964 permission would run consecutively and not concurrently, but the importance of the letter lies in the views expressed as to the necessity of allocating part of the estate as a public open space and as to the suitability of the two-acre site for this purpose. On September 17 1965 the claimants made application for permission to carry out development described as ‘Stage 1 of construction of detached and semi-detached houses (residential),’ and appended a plan showing a proposed layout of dwellings to be constructed under stages 1, 2 and 3, but showing no dwellings on the two-acre site and labelling it as ‘public open space.’  There accompanied this application a letter from the claimants’ general manager in which he referred to a recent meeting, and the material part of this reads as follows: The application, as you will see, is for Stage 1 only, although you will notice that we have sketched on the plan our proposals for Stages 2 and 3. We have also shown on the plan the public open space, which apparently your council require on a development of this size. On November 9 1965 this application was refused by the council, the reasons given being that the amenity value of the open space was seriously reduced by the rear gardens backing on to it, and the want of satisfactory details as to its treatment and landscaping. On December 31 1965 the claimants applied for permission to carry out development described as ‘Layout for erection of 73 dwellings, stage 1, and deletion of condition 3 on outline planning permission for this stage,’ and appended a plan showing the proposed layout of the 73 houses and of other houses, but leaving the two-acre site blank and also eliminating the rear gardens backing on to that area of which the council had made criticism. On February 1 1966 the council granted permission for the erection of 73 houses and construction of roads subject to the following among other conditions: 5  Before any houses on the site are occupied the deep clay workings shall be filled with materials satisfactory to the local planning authority to levels which will ensure that there shall be no danger to occupiers of the houses and within six months from completion of stage 1 development the public open space shall be satisfactorily landscaped in accordance with the deposited plan. On June 10 1966 the claimants applied for permission to carry out development described as ‘Layout consisting of 73 dwellings including estate roads’ and appended a plan showing the proposed layout of those houses and also others, but again showing no projected houses on the two-acre site. On July 11 1966 the council approved this plan, and in doing so referred to ‘the outline permission dated February 1 1966.’  The construction of the roads for stage 1 was begun on August 28 1966, and of the houses on November 2 1966. On February 2 1967 the claimants applied for permission to carry out development described as ‘stage 2: Construction of roads and erection of four detached and 11 pairs of semi-detached houses; stage 3: renewal of outline planning approval for 24 houses,’ and again appended a plan showing no projected houses on the two-acre site; and on February 21 1967 the council granted permission for ‘residential development: stage 2 details, stage 3 renewal of outline,’ subject to, inter alia, a condition that no buildings within stage 3 should be erected until the expiry of 10 years from satisfactory completion of filling of the workings, in explanation of which it was added that this development was sited on made ground which would settle. The erection of the first pair of houses for stage 2 was begun on September 27 1967. Finally, on May 18 1967 the claimants applied for permission to carry out development described as ‘erection of semi-detached houses,’ and appended a plan showing 15 projected buildings of which 14 were within the two-acre site. It is common ground that this application was made in the expectation of refusal and with a view to subsequent proceedings under Part VIII of the Act, and it was in fact refused by the council on August 7 1967, among the reasons given for the refusal being that the proposed development would conflict with conditions imposed on the permission to develop adjoining land in the same ownership and that the proposed development of land which had been shown on the layout plan as open space would raise the overall density above that considered appropriate for the site and type of dwelling. The compulsory purchase proceedings followed and were originally defective but were put right, the Minister having granted an extension of time for that purpose, by a fresh application for planning permission, which was refused on December 19 1968, and a fresh purchase notice with which the council was unwilling to comply but which the Minister confirmed. On these facts it was contended for the council before the Lands Tribunal that the case fell directly within the principle applied by this court in Slough Estates Ltd v Slough Borough Council and Another [1969] 2 WLR 1157, that ‘when a man is entitled to one of two inconsistent rights, then if he, with full knowledge, has done an unequivocal act showing that he has chosen the one, he cannot afterwards pursue the other’; that ‘If he does accept the one right, then by law he waives–he ‘abandons’–the other,’ and that for this purpose abandonment depends on conduct and not upon the existence of an intention to abandon (per Lord Denning MR at p 1164). For the claimants it was contended that this principle did not apply to the present facts, and that the tribunal should follow an earlier decision of its own in Richardsons Developments Ltd v Stoke-on-Trent Corporation (1971) 22 P & CR 958. The tribunal held that the claimants by their conduct subsequent to the permission of February 1 1966 had abandoned the outline planning permission of June 5 1964 within the principle laid down in the Slough case, and that the Richardsons case was distinguishable on the grounds, first, that no issue of abandonment had arisen in that case, and secondly, that there were important differences between that and the present case both as to the facts and as to the statutory assumptions to be made in assessing compensation. On this appeal the main argument has been as to the applicability of the Slough principle to the agreed facts. The appellants claim that the permission of February 1 1966 ought not to be construed as a fresh outline planning permission, with the result that the facts do not disclose any inconsistency between rights conferred by the two outline permissions. The respondents contend that the permission of February 1 1966 should be construed as a fresh outline permission covering the whole of the estate save two acres in the centre20 of it to be reserved as a public open space. In support of this argument it is claimed that it was not in law open to the respondents to effect, by a mere approval of plans, an alteration of substance in the terms of a condition attached to an outline planning permission, and in this connection we were referred to the wording of paragraph 5 of the Town and Country Planning General Development Order 1963, and to the statement of Lord Denning (with whose judgment Megaw LJ agreed) in Lever Finance Ltd v Westminster City Council [1971] 1 QB 222 that ‘a planning permission covers works specified in detailed plans and any immaterial variation,’ which, it is argued, indicate that material variations can only be effected by the grant of a fresh outline planning permission. We do not, however, find it necessary for the purpose of determining this appeal to decide whether the document of February 1 1966 is to be construed as a fresh outline planning application or only as an approval of detailed plans for stage 1, since in our judgment the outcome of the appeal must in either event be the same, for the following reasons. If on the one hand the document of February 1 1966 is to be construed as a fresh outline planning permission, there can in our judgment be no doubt that that document and the earlier outline planning permission of June 5 1964 gave rise to inconsistent rights with the result that when the appellants began to build, as they were entitled to do under the later but not under the earlier permission, they must be taken to have made an election and to have abandoned the rights under the earlier document. If on the other hand the document of February 1 1966 was not a fresh outline planning permission, we find the conclusion inescapable that it constituted an agreed variation of the rights conferred by the 1964 permission, with the consequence that those rights, to the extent that they were varied, disappeared at an earlier stage. It is clear, in our judgment, from the terms of the appellants’ application of December 1965 that they were inviting the council to vary the 1964 permission by deleting the 10-year ban on the commencement of building, and clear also from the whole of the documentary material that in return for the very considerable advantage to be obtained from removal of that ban the appellants were prepared to allocate two acres at the centre of the site as a public open space, and if in law such a variation of the 1964 permission could be achieved otherwise than by way of a fresh outline planning permission we have no doubt that it was achieved by the document of February 1 1966. On this main issue, therefore, the appeal fails; and before leaving it, we would only add that in our judgment the Lands Tribunal was entirely right in the view that the claimants can derive no assistance from the Richardsons case, both because that case raised no issue of abandonment and also because the statutory assumption to be made in that case in the assessment of compensation was that planning permission would be granted for residential development, since the relevant development plan showed the premises as primarily designated for such development, whereas in the present case the only use designated for the estate on the town map was for mineral working, and it was common ground that the minerals had been worked out. We cannot therefore accept Mr Freeman’s argument that the Richardsons case lends assistance to the appellants. There remains a subsidiary point taken in the third of the grounds of appeal, with which we can deal very shortly. It is that if the appellants abandoned the outline permission of 1964 they did so only in consequence of a known scheme of the respondents to acquire the land for open-space purposes, and that in these circumstances the compensation should not have been diminished by reason of the scheme. In our judgment, for the reasons already given, it is clear that the main reason why the appellants abandoned the permission was that they wished to free themselves from the 10-year ban on the commencement of building, and we can find no substance in this ground. The appeal is, for the foregoing reasons, dismissed, and we do not find it necessary to refer to the additional argument raised in the respondents’ notice. The appeal was dismissed with costs. Leave to appeal to the House of Lords was refused.