Herefordshire Council v White

An owner may serve more than one purchase notice under the Town and Country Planning Act 1990, but the Act confers no right to amend a notice. Whether a later notice impliedly withdraws an earlier notice depends objectively on the owner’s words, conduct and the circumstances. A fresh notice served in response to an objection, without reserving the owner’s position, will ordinarily withdraw the earlier notice. Deemed confirmation under section 143(2) applies only where the local planning authority has operated section 139(4) by sending the notice and proposed response to the Secretary of State.

Herefordshire Council appealed from a preliminary decision of the Lands Tribunal concerning compensation claimed by Richard White following the service of four purchase notices relating to land near Hereford. The notices were served under the Town and Country Planning Act 1990 after planning permission was refused.

The Lands Tribunal held that the notices were valid, that later notices amended earlier notices, and that notices A, B and C had been deemed confirmed. The central issues before the Court of Appeal were whether sequential notices could coexist or amend one another, whether notice D displaced the earlier notices, and whether deemed confirmation arose where the Council had not referred notices A, B or C to the Secretary of State.

1. Appeal allowed. Lord Justice Dyson gave the leading judgment, with Lord Justice Jacob and Lord Justice Latham agreeing. Notice D was the only extant purchase notice. It was not confirmed by the First Secretary of State, and notices A, B and C could not support a compensation claim.
2. The Town and Country Planning Act 1990 contains no express right to amend a purchase notice, and no such right arises by necessary implication. An implied amendment power would create uncertainty about relation back, the permissible scope of amendments and whether a local planning authority could similarly amend its response notice.
3. The Act does not prevent an owner from serving more than one purchase notice. The singular reference to a purchase notice in section 137(2), and the replacement-notice provision in section 143(5), do not establish a one-notice-only rule. The court applied Lord Hoffmann’s observation in Walker (Inspector of Taxes) v Centaur Clothes Group Ltd [2000] 1 WLR 799 that redundancy arguments generally carry limited weight.
4. The effect of a later notice depends on the circumstances and its terms. A later notice served without reference to the earlier notice will ordinarily imply its withdrawal. Where it responds to an objection to validity, the inference is particularly strong unless the owner expressly reserves the right to rely on the earlier notice. The question is objective and turns on what the owner says and does, not on unexpressed intention.
5. Notice B was presented as a further copy correcting notice A. Notice C was served in response to the Council’s objections to notice A, and notice D followed the Council’s further request concerning ownership evidence. None reserved the claimant’s position. Each later notice therefore withdrew its predecessor.
6. The court also held that section 143(2) does not create deemed confirmation unless section 139(4) has been operated and the Secretary of State has received the purchase notice and proposed response notice. Failure by the local planning authority to make that referral does not produce deemed confirmation. The owner’s possible remedies include seeking an extension of the prescribed period or making a fresh planning application.

• Court of Appeal (Civil Division): appeal allowed. The court held that notice D had withdrawn the earlier notices and rejected deemed confirmation where the notice had not been referred to the Secretary of State: [2007] EWCA Civ 1204.
• Lands Tribunal, HHJ Gilbart QC: held that notices A, B and C were valid, that later notices amended earlier notices, and that deemed confirmation had arisen.