Herefordshire Council v White

This is an appeal against the decision of His Honour Judge Gilbart QC sitting in the Lands Tribunal whereby he decided that the Lands Tribunal had jurisdiction to determine the compensation payable in respect of the purchase notice served by the claimant on Herefordshire Council (“the Council”) on 28 March 2003, “amended” (as the judge held it was) by subsequent notices served on 6 May, 21 June and 3 September 2003. It is convenient to refer to these four notices (as they have been throughout the proceedings) as notices A,B,C and D respectively. The issue of jurisdiction was tried as a preliminary issue.

The Council is the local planning authority (“LPA”) in respect of land at 83 Tower Hill, Upper Dormington, near Hereford (“the land”). The four notices were purportedly served pursuant to section 137 of the Town and Country Planning Act 1990 (“the 1990 Act”). In each notice, the claimant contended that, by virtue of a refusal of planning permission on 6 September 2002, the land was incapable of reasonably beneficial use in its existing state and could not be rendered so by the carrying out of any permitted development. The claimant contended that, by virtue of section 143(2) of the 1990 Act, notices A, B and C were deemed to have been confirmed by 28 December 2003, 6 February and 21 March 2004 respectively.

Notice D was the subject of a response notice by the Council on 2 December 2003. It was sent to the First Secretary of State (“FSS”) under section 139(4) of the 1990 Act. By letter dated 24 February 2004, the FSS indicated that he would not confirm the purchase notice. Following an inquiry by his inspector, the FSS decided by letter dated 10 November 2004 that he would not confirm the notice on the grounds that the land was reasonably capable of beneficial use in its existing state.

It is the Council’s case that notice D replaced the earlier notices and is the only extant notice. On that footing, there is no confirmed purchase notice and the claimant has no claim to compensation in respect of notices A, B or C. The judge held that notice A was a valid notice which was amended by notice B. Even if notice B did not take effect as an amendment of notice A, it was valid when it was served. Notice C was a valid notice and it amended notice A. Even if notice C did not take effect as an amendment of notice A, it was valid when served. In short, notices A, B and C were valid notices. The judge also concluded that both notices had been the subject of deemed confirmation before 24 February 2004, thereby giving rise to a right to compensation. It is the claimant’s case that the judge reached the right conclusion on all issues.

This appeal raises questions as to the effect of the service of sequential purchase notices and the meaning of the deemed confirmation provisions of section 143(2) of the 1990 Act.

Section 137(2) of the 1990 Act provides that, where an application for planning permission to develop land has been refused and the land has become incapable of reasonably beneficial use in its existing state, the owner “may, within the prescribed time and in the prescribed manner, serve on the [LPA] ..a…purchase notice requiring the [LPA] to purchase his interest in the land in accordance with this Chapter”. The “prescribed time” is 12 months from the decision of the LPA or the Secretary of State: reg 12 of the Town and Country Planning General Regulations 1992 (No 1492).

Section 139 of the 1990 Act provides:

Section 143 of the 1990 Act provides:

Where—

the Secretary of State has notified the owner by whom a purchase notice has been served of a decision on his part to confirm, or not to confirm, the notice; and

that decision is quashed under Part XII,

The claimant made a planning application to the Council to re-use a derelict dwelling on the land for residential purposes. Permission was refused on 6 September 2002. His appeal against refusal was dismissed on 10 June 2003.

Notice A was served on 28 March 2003. The notice was in these terms:

Without waiting for a substantive reply from the Council, the claimant served notice B on 6 May. He did this under cover of an accompanying letter stating: “I enclose a further copy of the Purchase Notice, as I noticed that there was a typographical error in the previous notice.” Notice B amended notice A in three respects. First, the address of the property had been corrected from 85 to 83 Tower Hill; secondly, the notice was said to be served under section 137 of the 1990 Act, instead of the repealed section 180 of the Town and Country Planning Act 1971; and thirdly, the word “freehold” was inserted before the phrase “interest in the said land”. The second and third changes were made in manuscript. The Council said that they did not receive notice B. But the judge found (para 22 of his judgment) that the notice and its accompanying letter were received by the Council. There is no challenge to this finding.

On 18 June, apparently unaware of notice B, the Council’s senior litigator, Mike Jones, wrote to the claimant stating that notice A was invalid because (i) the preamble referred to No 85 Tower Hill, whereas the planning decision reference and the last two paragraphs of the notice referred to No 83; (ii) the notice was based on the wrong statutory provision (“you should refer to the appropriate sections of the current Act”); and (iii) the notice did not identify the interest in the land which the claimant wished the Council to purchase. The letter concluded: “upon receipt of a valid notice the Council will then be able to respond appropriately”.

In response to this letter, on 21 June the claimant wrote to the Council saying: “please find enclosed my Purchase Notice”. The sentence continued with the words “amended in accordance with your instructions”, but these words had been deleted in manuscript by the claimant before he sent the letter. The notice enclosed with this letter (notice C) was in the same terms as notice B. the only difference between the two documents was that the amendments which had appeared in manuscript in notice B were now incorporated in a clean copy text. Notice C was not in substance an amendment to notice B at all.

On 18 July 2003, Mr Jones wrote to the claimant saying that he had been through “the criteria covering the validity of such a notice”. The only remaining point related to the claimant’s ownership of the land. He noted that the plan attached to the planning decision “asserted ownership not only of the site itself, but also of the track leading to it.” The letter continued:

Following a meeting between the claimant and Mr Jones in August (in which Mr Jones explained to the claimant how he should correct notice C), on 3 September the claimant served notice D. The only differences between notice D and notice C were that the words “as attached” were added after “the plan with the planning application” in the penultimate paragraph; the words “Plan attached 2^nd September 2003” were added at the bottom of the document; and the plan was attached. Although notice D bore the date 21 June 2003, it is not in dispute that it was served on 3 September.

On 1 December, the claimant wrote to Mr Jones. He accepted that notice A was invalid on the grounds that it had given the wrong address for the land to be purchased. He also noted that the Council had not said that notices B or C were invalid and that he had received no response to those notices.

On 3 December, the Council gave their response notice under section 139(1) of the 1990 Act in response to notice D. They stated that they opposed confirmation of the notice on the grounds that the land was capable of reasonably beneficial use in its existing state. The Council referred notice D to the FSS. On 24 February 2004, the FSS stated that he proposed not to confirm the purchase notice. Thereafter, the claimant exercised his right to have the matter heard by an inspector. An inquiry was duly held. On 7 September 2004, the inspector reported by letter to the FSS and recommended that the notice should not be confirmed. On 10 November 2004 the FSS accepted that recommendation and gave his decision accordingly.

On 20 April 2005, the claimant submitted a claim to the Lands Tribunal for compensation on the basis of deemed confirmation of notices A, B and C. As I have said, the question of jurisdiction was ordered to be determined as a preliminary issue.

The judge stated two important propositions of law. First, the 1990 Act does not limit a claimant to one notice at a time (para 56). Secondly, there is no reason why a notice cannot be amended after service, provided that the effect of the amendment is not such as to change the nature of the claim: it is for the LPA to determine whether it will permit the amendment (para 57).

Notice A was valid despite the error in relation to the numbering of the property. “When one reads the Notice as a whole, and looks at the accompanying Plan and the relevant planning decision reference, there can be no real doubt that it referred to No 83” (para 63).

Notice A was amended by notice B. The amendment was intended to correct the error of description in notice A. The mistaken reference to section 180 of the 1971 Act instead of section 137 of the 1990 Act did not render the notice invalid. Any competent local authority officer would have gone straight to Circular 13/83 and/or the Encyclopaedia of Planning Law and Practice and known that section 180 was re-enacted as section 137 (para 61). Notice B was, therefore, valid.

Notice C was also a valid notice. It too amended notice A. The points taken by the Council in the letter of 18 July 2003 did not go to its validity (para 60). Even if it did not take effect as an amendment of notice A, it was a valid notice.

As for notice D, the attaching of a plan to this notice did not change the claimant’s case. The 1990 Act does not require the submission of a plan with a notice. On any reasonable basis, notice D was not a new notice but an amended version of notice C. It was only served because the Council had raised the issue of evidence of ownership after notice C had been served. This did not go to the validity of the notice, but to the existence of evidence to support it (para 58). Accordingly, notice D was to be regarded as having been served on 21 June 2003, the date of service of notice C (para 59).

The judge rejected the Council’s submission that, by serving successive notices, the claimant had impliedly withdrawn the earlier notices. There is nothing in the correspondence to suggest that any of the 4 notices was withdrawn (para 66).

The judge disagreed with the commentary in the Encyclopaedia of Planning Law and Practice: “there is no deemed confirmation or rejection if the authority fail to comply within the time limit, but the duty to respond would be enforceable by application for judicial review”. At para 70, he said that he did not consider that a failure by an authority to act as required by the 1990 Act “alters the deeming confirmation mechanism in favour of the Claimant. The 9 month period would remain unaltered”.

In the result, the judge held that, since notice A was valid, the 9 months’ “relevant period” stated in section 143(3)(a) of the 1990 Act expired on 28 December 2003. If he was wrong to hold that the subsequent notices amended notice A, he would also hold that notice B was a valid notice and that the relevant 9 months’ period expired on 6 February 2004. In either event, the effect of section 143(2) was that there was a deemed confirmation of the notice.

The 1990 Act makes no express provision for amending a notice. Nor does a right to amend a notice arise by necessary implication. The statutory provisions work without the need to give the owner the right to amend the purchase notice. In my judgment, there are good reasons why the right to amend the purchase notice does not arise by necessary implication. First, if the owner were able to amend his purchase notice, a question would arise as to whether the amendment took effect from the date of the amendment or whether it related back to the date of the original notice. There are arguments in favour of both solutions. It would have been a matter for Parliament to decide which solution to adopt. Secondly, it is not clear what kind of amendment the owner would be able to make. The judge said that any amendment would be permitted unless the effect of the amendment would be to change the nature of the claim. Such a test for permitting amendments cannot be derived from the language of the statute. Nor is it clear what it means. On any view, its application would give rise to undesirable uncertainty. Thirdly, if the right to amend the purchase notice arises by implication, why should the LPA also not have the right to amend its response notice? Could a LPA which has served a response notice stating that it is willing to comply with the purchase order amend its notice to state that it is not willing to comply with the purchase notice? It seems most unlikely that Parliament would have intended to give the LPA such a right.

For all these reasons, I consider that there is no right to amend a purchase notice.

The judge held that there is nothing in the 1990 Act to restrict the owner to one notice at a time. Mr Kingston QC submits that the judge was wrong about this. He says that the 1990 Act provides an elaborate scheme for the service of a purchase notice and response notice. Section 137 specifies the circumstances in which a purchase notice may be served. Section 137(2) provides that the owner may serve on the council “a purchase notice”. Section 139(1) provides that the council on whom a purchase notice is served shall serve a response notice. There is nothing here to suggest that Parliament envisaged that more than one notice should be extant at any one time. Section 143(2) and (3) also envisage the service of a single purchase notice. Mr Kingston places particular reliance on section 143(5) which contains specific provision for a further purchase notice in the circumstances there identified. If it were open to an owner to serve more than one concurrent notice, it would have been unnecessary to provide that the owner may serve a further replacement notice in the circumstances specified in section 143(5). This subsection assumes that, where a purchase notice has been treated as cancelled after a quashing under Part XII, the only remedy available to the owner is to serve a further purchase notice. If there were a general power to serve more than one notice, there would be no need to provide that where a notice is quashed, a further notice may be served in its place. Mr Kingston submits that there is no basis for an argument that an owner should be able to shower purchase notices on a LPA in the hope that one will slip through unnoticed and thereby lead to its deemed confirmation.

I cannot accept Mr Kingston’s submissions on this point. It seems to me that, if section 143(5) is left out of account, there is nothing in the language of sections 137, 139 and 143 which clearly indicates that an owner may not serve more than one purchase notice. The critical provision is section 137(2) which merely provides that, where the statutory conditions are satisfied, the owner may serve “a notice”. On its face, that does not appear to prevent an owner from serving more than one notice. It does not say that an owner may only serve one notice. In the absence of an express provision (and there is none), the statute should only be construed as having that effect if it is necessary to do so. Mr Kingston submits that section 143(5) necessarily implies that it was intended that the owner may only serve one notice. In my view, he places too much weight on this provision. It does not necessarily follow from section 143(5) that there is no general power to serve more than one notice. Arguments based on redundancy rarely carry much weight. As Lord Hoffmann said in Walker (Inspector of Taxes) v Centaur Clothes Group Ltd [2000] 1 WLR 799, 805D: “I seldom think that an argument from redundancy carries great weight, even in a Finance Act. It is not unusual for Parliament to say expressly what the courts would have inferred anyway”.

The spectre of an owner showering a LPA with a series of notices in the hope that one will slip through unnoticed is somewhat unreal. The facts of the present case are unusual. An owner is unlikely to serve more than one notice unless the LPA raises an issue as to its validity. Where that occurs, the owner may be persuaded that his first notice is invalid and serve a fresh notice which he clearly intends should replace the first notice. On the other hand, he may consider that the LPA is wrong, but decide that the safe course to adopt is to continue maintain that his first notice is valid, serving a second notice in case he is wrong. I can see nothing in the statute which indicates that an owner cannot serve the second notice without prejudice to his contention that the first notice is valid.

For these reasons, I agree with the judge that an owner can serve more than one purchase notice. The real question that arises on this appeal is: what is the effect of the service of more than one notice?

This question must be considered in the light of the conclusion that I have already reached that there is no provision in the 1990 Act enabling an owner to amend a purchase notice. The question whether, having served notice A, an owner impliedly withdraws that notice if he subsequently serves notice B depends on the circumstances in which and the terms on which he serves notice B. If he merely serves notice B without any reference to notice A, he will ordinarily be taken to have impliedly withdrawn notice A. If he does so in response to an objection to the validity of notice A by the LPA, the inference is irresistible that, by serving notice B without more, the owner is withdrawing notice A. On the other hand, if he states that he is serving notice B without prejudice to his contention that notice A is valid and that he will continue to rely on notice A until it has been adjudged to be invalid, then he is making it clear that he is not withdrawing notice A. The question whether there has been an implied withdrawal of notice A by the service of notice B must be determined objectively on the basis of what the owner says and does, and not on the basis of what he thinks.

The judge dealt with this issue very briefly at para 66 of his judgment: see para 24 above. I cannot agree with him. Each of the notices served after notice A purported to be a fresh notice. Each bore a different date (except notice D). Each differed from its predecessor. The claimant said nothing to indicate that he was reserving his rights in relation to notice A or any of the notices that he was purporting to amend. Thus, his letter dated 6 May 2003, under cover of which he sent notice B, merely said that he enclosed a further copy of “the Purchase Notice” as he had noticed a typographical error on the previous notice. Viewed objectively, this was a request to the LPA to deal with notice B: notice A could be ignored. Similarly with regard to notice C. This notice was served in response to Mr Jones’s letter of 18 June advising the claimant that notice A was invalid in three respects. The claimant might have responded to this letter in a number of ways. He might have met Mr Jones’s points by providing the information by letter, on the basis that a fresh notice was not required. He might have ignored the Mr Jones’s “advice” (but sensibly chose not to do so). He might have served notice C without prejudice to his contention that notice B was a valid notice. Or he might have acted as he did, by meeting Mr Jones’s points in a fresh notice C. In my view, it is clear that by serving a fresh notice without reserving his position in relation to notice B, he must be taken to have withdrawn notice B. His letter dated 21 June simply said: “Further to your letter of the 18^th June, please find enclosed my Purchase Notice”. The position with regard to notice D was the same. By serving notice D in the way that he did, the claimant must be taken to have withdrawn notice C.

It follows that the only extant notice was notice D. The appeal must, therefore, be allowed. But the judge made some important statements about the deemed confirmation provisions in section 143(2) which need to be considered.

The judge held that, if a valid notice (which he held notices A, B and C to be) is not sent to the FSS pursuant to section 139(4), there is nevertheless a deemed confirmation at the end of the “relevant period” (9 months from the date of service of the purchase notice).

There are at least two reasons why a LPA may fail to send a purchase notice to the FSS. It may simply overlook the matter. Or it may take the view (as in this case) that the notice is invalid and that for that reason it should not send the notice to the FSS. At para 69 of his judgment, the judge expressed some views about the advice given in para 21 of Circular 13/83: “The Council should consider the validity of a notice; an invalid notice should not be transmitted to the Secretary of State.” I do not find it necessary to comment on what he said on this point.

But I respectfully disagree with his conclusion that, where a notice is not sent to the FSS, there is a deemed confirmation at the end of the relevant period. In my view, it is impossible to spell this out of the statute. The deemed confirmation provision appears in section 143(2) and nowhere else. The scheme of the statute is that, where the LPA proposes to serve a response notice that it is not willing to comply with the purchase notice, it must first send to the FSS a copy of the purchase notice and the proposed response notice (section 139(4)). Sections 140-143 contain detailed provisions as to the powers and duties of the FSS where a copy of the purchase notice is sent under section 139(4). He must consider whether to confirm the purchase notice or to take other action under section 141 in respect of it (section 140(1)). The deemed confirmation provision in section 143(2) is clearly premised on the basis that section 139(4) has been operated by the LPA. In my view, it has no application in a case where section 139(4) has not been operated and the FSS has not received the purchase notice.

The judge was, therefore, wrong to say that, if the LPA does not send the purchase to the FSS in time to enable the FSS to respond within the relevant period, there is a deemed confirmation. The editors of the Encyclopaedia are right when they say (P.137.13): “There is no deemed confirmation or rejection if the authority fail to comply within the time limit, but the duty to respond would be enforceable by application for judicial review”.

The judge said that judicial review was an inadequate remedy for an owner whose purchase notice is ultimately held by the court to be invalid. This is because by the time the court decides the issue in judicial review proceedings, it is likely that the prescribed period of 12 months from the date of refusal of planning permission will have expired and it will be too late for the owner to make his claim. Even if that is the consequence, it does not justify an impossible reading of the statute. But where objection is taken by the LPA to the validity of a notice, the owner has a choice. He is not obliged to take his stand on the notice to which objection has been taken. He can serve a fresh notice meeting the LPA’s points, if necessary reserving his right to contend that the earlier notice is valid. If he decides to take his stand on the notice to which objection is taken, then he takes a chance that the LPA may not refer it to the FSS and it may ultimately be held to be invalid.

Even if that happens, as Mr Kingston points out, there remain two remedies available to the owner. He may apply to the FSS for an extension of the prescribed period of 12 months. Para 4 of Circular No 13/83 states that the FSS “is normally prepared to grant an extension of time where the service of a notice is delayed for good reasons”. If an extension of time is refused, the owner can apply for planning permission again, thereby setting a new timetable.

For the reasons that I have given, I would allow this appeal.

I agree.

I also agree.