England and Wales Lands Tribunal

[2003] EWLands LCA_131_2000 (25 April 2003)

LCA/131/2000

LANDS TRIBUNAL ACT 1949

COMPENSATION – stop notice – preliminary issues – whether claimant a person entitled to compensation – whether claim made within prescribed time – Town and Country Planning Act 1990 section 186 – held notice made within prescribed time but claimant not having interest in or occupying the land and so not entitled to compensation

IN THE MATTER OF A NOTICE OF REFERENCE

BETWEEN INTERNATIONAL FERRY TRADERS LIMITED Claimant

and

ADUR DISTRICT COUNCIL Compensating Authority

Re: Land at Brighton B Power Station

Shoreham Harbour

West Sussex

Before: The President

Sitting in public at 48/49 Chancery Lane, London, WC2A 1JR

on 10 April 2003

The following cases are referred to in this decision:

Stevens v Bromley LBC [1972] 1 Ch 400

Madrassa Aniuman Islamin of Kholwad v Johannesburg Municipal Council [1922] 1 AC 500

Munnich v Godstone RDC [1966 1 WLR 427

Scarborough BC v Adams [1983] JPL 673

Texas Homecare Ltd v Lewes DC (1985) 51 P & CR 205

The following further cases were referred to in argument:

Wheat v Lacon & Co Ltd [1966] AC 552

Field Place Caravan Park Ltd v Harding [1966] 2 QB 484

Mr W J Ford, a director of the claimant company, for the claimant, with leave of the Tribunal

Charles Mynors instructed by Barlow Lyde & Gilbert for the compensating authority


 


DECISION ON PRELIMINARY ISSUES

1. Notice of reference was given in this case by the claimant (whom I will refer to as ITF Ltd) on 10 April 2000 seeking compensation under section 186(2) of the Town and Country Planning Act 1990 in respect of a stop notice that had been served on 1 February 1995, along with an enforcement notice, by the compensating authority (whom I will refer to as the council) and had been quashed on appeal. The enforcement notice and the stop notice related to land at Shoreham Harbour. The land had formerly contained Brighton B power station, the site of which had been cleared of buildings, with the exception of a chimney that remained standing. The land was in the ownership of the Shoreham Port Authority. The enforcement and stop notices were served at a time of public controversy about the transport of livestock to France for slaughter. It was ITF Ltd that shipped the animals to France, and it used part of the old B station site as a holding area and for loading onto the ship that docked there. Other parts of the B station site were used by other persons.
2. The enforcement notice, which related to the whole of the B station site and to further land within the port, required the cessation of "the use of the quays for the docking of ships and the loading and unloading of cargoes and of the open land on the site for the movement of vehicles and for the temporary storage of cargoes and materials and the use of any buildings or land in support of all these functions." The stop notice prohibited these operations.
3. Under section 186(1) compensation may be payable in respect of a prohibition contained in a stop notice where the enforcement notice is quashed on grounds other than ground (a) in section 174(2). The enforcement notice was quashed on ground (c). Section 186 goes on to provide:

"(2) A person who, when the stop notice is first served, has an interest in or occupies the land to which the notice relates shall be entitled to compensation by the local planning authority in respect of any loss or damage directly attributable to the prohibition contained in the notice…

(3) A claim for compensation under this section shall be made to the local planning authority within the prescribed time and in the prescribed manner."

Under regulation 12 of the Town and Country Planning General Regulations 1992, a claim for compensation under the section must be in writing and must be served on the authority by delivery or by post within 12 months of the date of the decision in respect of which the claim is made, or such longer period as the Secretary of State may allow.

4. On 21 June 2000 the claimant applied to the Secretary of State under regulation 12(2) seeking an extension of time, but by letter dated 29 November 2001 the Secretary of State refused the application because he considered that the delay in seeking the extension had been excessive.
5. Both the Port Authority and the claimant had appealed against the enforcement notice, and a public enquiry into the appeals was held in January and February 1997. The inspector concluded that the matters complained of in the enforcement notice did not constitute a breach of planning control and he accordingly recommended that the appeal should succeed on ground (c). This conclusion was accepted in his decision letter of 28 January 1998 by the Secretary of State, the Deputy Prime Minister, who accordingly quashed the notice; and, although the decision was quashed in the High Court, it was restored on appeal by the Court of Appeal on 23 July 1999.
6. The compensating authority have never accepted that the claimant was entitled to compensation under section 186 or that the claim was made within the prescribed time. On 17 April 2002, on their application, I ordered that the following matters be determined as preliminary issues:

(a) Whether or not the claimant is a person entitled by section 186(2) of the Town and Country Planning Act 1990 to be compensated in respect of the stop notice issued by the authority on 1 February 1995 relating to land and property known as the Brighton 'B' power station site at Shoreham-by-Sea, West Sussex;

(b) Whether or not the letter of 25 February 1998 to the authority from the solicitors acting for the claimant constituted a claim for the purposes of regulation 12 of the Town and Country Planning General Regulations 1992 and section 186 of the 1990 Act.

7. When making the order that I did on 29 May 2002, I also made an order about the lodging and exchange of witness statements. Neither party complied with the time limit laid down, but on 2 January 2003 a witness statement by Neil Beresford of Barlow Lyde & Gilbert, solicitors to the council, was lodged and it exhibited the documents that were considered to be relevant to the preliminary issue. No witness statement was ever lodged on behalf of ITF Ltd.
8. The hearing for the preliminary issues was fixed for 27 February 2003. On 24 February 2003, however, Mr J L B Kendrick of Three Counties Planning, who describe themselves as "Town and Country Consultants, Lawyers and Advocates", of Ross-On-Wye, wrote to the Tribunal saying that he had just been instructed in the matter and asking that the hearing be adjourned for a minimum of 14 days. The council consented to this application and the hearing was therefore re-fixed for 10 April 2003. On the morning of 10 April Mr Kendrick faxed to the council's solicitors a letter dated 9 April 2003 setting out "some points that will be made on behalf of ITF Ltd". These points were effectively the simple and unelaborated assertions that the claimant occupied land to which the stop notices related, that it had suffered loss as a result of the notice, and that it had by the letter of 25 February 1998 made a valid claim under section 186. On the morning of the hearing also Mr Kendrick telephoned the Tribunal to say that he was ill and could not attend.
9. At the hearing I gave Mr W J Ford, a director of ITF Ltd, leave to appear on the ITF Ltd's behalf. He asked for an adjournment to enable Mr Kendrick to represent the claimant. I refused to grant an adjournment. Mr Ford, together with another director of the claimant company, had appeared at the pre-trial review that the Registrar had held on 17 April 2002. ITF Ltd had taken no action on any of the orders made by the Tribunal and had not responded to any letters, and Mr Kendrick had not been instructed until 21 February 2003, 6 days before the date fixed for the preliminary hearing. It appeared to me unlikely from Mr Kendrick's letter of 9 April 2003 that he was in a position to give much assistance to his client or to the Tribunal, and in view of the history of inaction on the part of the claimant, it did not appear to me unjust that the hearing should be proceeded with. I heard what Mr Ford had to say, but I told him that in view of the failure to lodge any witness statement, and the order of 28 August 2002 debarring the calling of evidence where no witness statement had been lodged, I would not hear evidence from him. He told me that Mr Kendrick had not said whether he was going to call him to give evidence.
10. ITF Ltd had the benefit of two licence agreements with the Shoreham Port Authority. The first was dated 24 October 1994 and gave the claimant licence to use the Port Authority's wharves, transit area and transit sheds for the loading and discharging of vessels and the examination and sorting of goods in transit. The claimant was to pay the Port Authority's charges in respect of such use. The second licence was dated 1 November 1994 and granted the claimant permission to use certain premises, described in the licence as "Former Howarth Timber Ltd office at the Inner Lay-by". I will refer these licences in more detail later, as they are the basis on which the claimant claims to have been in occupation of the land that was the subject of the stop notice.
11. The council rely on the documentary evidence to establish the relevant facts. With the exception of a disagreement about the premises to which the licence of 1 November 1994 relates and the question of whether ITF Ltd were occupiers of the land, there does not appear to be any significant difference between the parties about the facts to be derived from the documents. The inspector's report on the inquiry of January-February 1997 records at paragraph 72 that the Port Authority and Adur District Council agreed the uses of the notice land as at 1 February 1995. A plan identified 23 different areas (paragraph 77) of which number 14 was:

"Land used for the export of livestock, in association with the access coloured yellow leading to turning basin where cargo was stern loaded. Includes Howarth timber shed occupied as offices."

12. At paragraph 130 the inspector said that he accepted as fact the matters agreed between the parties and set out in paragraph 77. At paragraph 190 he found as further facts that the vessel used by ITF Ltd tied up at the quayside adjacent to the turning basin, that it was stern loaded there and that the transhipment of the cargo took place through the land to the west of the turning basin.
13. Other uses of the notice land, at 1 February 1995, as recorded in paragraph 77 included the storage of imported baled peat (8), the storage of ornamental rock (9), the import and storage of granite setts (12), the storage and export of baled waste paper (13) and by ARC in association with the handling of aggregates imported by sea (21). The turning basin was at the east end of the power station site. The area known as the Inner Lay-by, with its associated berths, lay to the west of the power station site and did not form part of the order land.
14. In a statutory declaration dated 7 November 1995, made in connection with the enforcement notices appeal, Mr Ford said this:

"6. Between 6th and 9th March 1995 the company's chartered vessel 'Northern Cruiser' was displaced from its berth on the Inner Lay-by to which it had been sent following the service of the Enforcement and Stop Notices, because it was stated by the Port that the berth was required for another vessel, the 'Anne Boye'. While that vessel was moored there, the Northern Cruiser was instructed by the Harbour Master to moor at wharf number 25, which is the 'B' station site. That site was therefore used during that period.

7. The company stored furniture and office equipment in the Howarth Timber building, which is situated on the relevant area. The building was in regular use at least until the end of March in that it was used by our employees and security staff as well as for storage. The security fencing at the site belonging to the Company was in place on the relevant area until 15th June 1995."

15. Mr Charles Mynors, who appeared for the council, contended that the premises referred to in the licence of 1 November 1994 were not part of the notice land and, for this reason, could not form the basis of any claim under section 186. He relied on the description of the premises in the licence, "Former Howarth Timber Ltd office at the Inner Lay-by," and he pointed out that the Inner Lay-by was not within the notice land. It is clear from the documentary evidence, however, that the claimant in fact used as an office a building that was called the Howarth timber shed which stood on the land used for the export of livestock adjacent to the turning basin. This is clear from the description of the use of the land in paragraph 77 of the inspector's report (a description to which the council and the Port Authority had agreed), and from Mr Ford's statutory declaration. The words "at the Inner Lay-by" in the licence agreement were evidently an error, and the inference in my judgment is necessarily that the parties treated the licence as applying to the building that was in fact used by the claimant.
16. Under the terms of the first licence, which was stated to be for the period 1 November 1994 to 31 October 1995, the Port Authority licensed the claimant:

"(i) to discharge and load vessels at the Wharves which are owned or under the control of the Port Authority and to make use of Transit Areas adjacent to those Wharves for the temporary storage of goods in transit;

(ii) to make use of the Transit Sheds owned or under the control of the Port Authority for the sorting and examination of goods in transit discharged or loaded at the adjacent Wharves;

(iii) to use the Port roads on foot and by vehicle for and in connection with the foregoing purposes."

17. The licence was subject to a number of conditions that controlled the rights of the claimant. They included the following:

"1. Vessels will be berthed at the Port Authority's Wharves only as directed by the Harbour Master.

2. Space in the Port Authority's Transit Sheds and Transit Areas will be subject to control by the Harbour Master.

3. The Licensee undertakes:-

(a) to pay whatever fees, rates, rents and charges may be authorised by the Port Authority from time to time for the use of the Wharves, Transit Areas or Transit Sheds;

(b) to observe the conditions from time to time stipulated by the Port Authority for the use of the Wharves, Transit Areas, Port roads and Transit Sheds…

(g) to comply with the Port Authority's Byelaws in force from time to time, with all directions made by the Harbour Master acting thereunder or in accordance with his statutory powers and with all regulations made by the Port Authority with respect to Port roads;

(h) to remove goods from the Wharves, Transit Areas and Transit Sheds if directed to do so by the Harbour Master;

(i) to obtain the Port Authority's consent to the type of handling equipment to be used on the Wharves and Transit Sheds and to comply with any instructions of the Harbour Master in respect of the use of such equipment;

(j) The Port Authority reserves the right to remove and store elsewhere any goods placed on its Wharves and Transit Areas or in the Transit Sheds should the Licensee fail to do so within a reasonable time of notice being given by the Harbour Master and to recover the cost of such removal and storage from the Licensee.

5. The Port Authority reserves the right to determine this Licence

(i) forthwith if the Licensee fails to comply with any of the above conditions

(ii) after three months' notice at any time."

18. It is clear that this licence conferred no interest in land, nor did it give any right to use any particular part or parts of the port. Both berthing and the use of the transit sheds and transit areas were subject to the direction and control of the Harbour Master, who was able to direct where vessels were to be berthed and what wharves etc were to be used and to require the removal of goods from the wharves etc.
19. The second licence permitted ITF Ltd to use the premises (which were described, as I have said as "Former Howarth Timber Ltd office at the Inner Lay-by") (clause 1). It was stated to subsist from 1 November 1994 and to continue until further notice (clause 2), but it could be determined at any time by either party giving not less than four weeks notice in writing (clause 9 (b)). The licensee was required to pay a licence fee of £100.00 plus VAT per month (clause 3). It was also required to observe and perform all rules and regulations that might be imposed by the licensor from time to time (clause 4(f)). The licence was stated to be personal to the licensee (clause 5), and clause 7 declared that it was not the intention of the parties to create between them the relationship of landlord and tenant. Clause 6 provided:

"6. It is hereby agreed and declared that this Licence confers no right to exclusive possession upon the Licensee and accordingly that the Licensor retains the right to enter upon the premises at any time and in any manner and for any purpose, and to relocate the Licensee to other premises within the port area or failing this to terminate this Licence."

Appended to this agreement were the "Estate Regulations" controlling such things as the movement of vehicles, and these imposed requirements on those referred to as "the tenants".

20. It is clear, in my judgment, that this second licence conferred on the licensee no interest in land. Quite apart from the stated intention of the parties, which would not necessarily be conclusive, the terms of clause 6 in particular show that the licensee gained no exclusive right to possession and could be relocated by the licensor at any time. It is also right, in my view, to bear in mind the circumstances in which the licence was granted. ITF Ltd evidently required the use of office space in connection with its use of the port for the export of livestock. The building it was licensed to use was, adjacent to the wharf and the transit area that it used for this purpose, and it ceased to use the building (apart from not removing its possessions from it) not long after the export of livestock from the wharf came to an end. The nature of the first licence, which I have referred to above, and the use of the port facilities for which it provided, in my view colours the second licence and provides confirmation that it was not intended to confer any interest in land.
21. ITF Ltd, as I have concluded, therefore, had no interest in any of the land to which the stop notice related. Did it nevertheless occupy part of the land? Mr Ford's contention was that, by using the land and the building as it did, ITF Ltd occupied them. There was a security fence, he said, and ITF Ltd was in occupation of the land. It retained possession of the building and kept possessions there for some months after the export of livestock had come to an end. For the council Mr Mynors referred to 6 cases in which the question whether a person was in occupation of land had been in issue (Madrassa Aniuman Islamin of Kholwad v Johannesburg Municipal Council [1922] 1 AC 500; Wheat v Lacon & Co Ltd [1966] AC 552; Munnich v Godstone RDC [1966 1 WLR 427; Field Place Caravan Park Ltd v Harding [1966] 2 QB 484; Scarborough BC v Adams [1983] JPL 673; and Stevens v Bromley LBC [1972] 1 Ch 400. He submitted in the light of these that whether a person was in occupation of land for the purpose of the enforcement provisions of the 1990 Act was a matter of fact and degree, but that features that might suggest whether there was occupation included the following: the length of time for which the person had occupied the land; whether or not it was the person's permanent residence; whether or not it was the person's sole residence; the extent to which the person had physically adapted the land for his purposes; the difficulty that the landlord would have to evict the person from the land or to move him to some other part of it; whether or not the landlord had evicted any licensees from the land or moved them within it; whether the person's occupation was exclusive; whether or not the person's occupation was paramount as against the owner; and the degree of control exercised by the person.
22. Mr Mynors went on to submit, but without, I think, much conviction, that, since to be eligible for compensation under the section the person must have an interest in or be an occupier of "the land to which the notice relates", he must have an interest in or be the occupier of the whole of that land. He pointed out that, while section 336(1) defines "building" to include part of a building, there is no corresponding provision in relation to "land". And section 186 did not refer, as it could have done, to "all or part of the land" but only to "the land". I cannot accept this submission. A person who has an interest in part of a piece of land can properly be said to have an interest in that land; and the same goes for occupation. Under section 172(2) a copy of an enforcement notice must be served on the owner and on the occupier of the land to which it relates and on any other person having an interest in the land, being an interest which, in the opinion of the authority, is materially affected by the notice. Section 174(1) confers the right to appeal against an enforcement notice on a person having an interest in the land to which the notice relates and on a relevant occupier. "Relevant occupier" is defined in section 174(6) to mean a person who occupies the land by virtue of a licence. As Salmon LJ said in Stevens v Bromley LBC [1972] 1 Ch 400 at 411A:

"The legislation, however, clearly intended to afford a measure of protection to an occupier by ensuring that he should be given adequate warning of the enforcement notice and the opportunity of appealing against it before he could be convicted of failing to comply with it."

23. There is not, in my judgment, anything in the legislation to suggest that an enforcement notice can only be served in respect of land that is all in the same occupation. If, therefore, different parts of "the land to which it relates" are in different occupations, it would be contrary to the intention of the Act that there should be no requirement to serve a copy of the notice on a person who was in occupation of part only of the land or that such person should have no right of appeal against the notice. The same applies, in my view, to section 186(2), and an occupier is not disabled from claiming compensation by reason of the fact that he does not occupy the whole of the land to which the notice relates.
24. Whether a person occupies the land to which the stop notice relates is, as Mr Mynors submitted, a question of fact and degree. It is the case, as Viscount Cave, giving the opinion of the Privy Council in Madrassa Anjuman Islamin of Kholwad v Johannesburg Municipal Council [1922] 1 AC 500, said at 504:

"The word 'occupy' is a word of uncertain meaning… the precise meaning in any particular statute or document must depend on the purpose for which, and the content in which, it is used."

25. The answer to the question whether a person is an occupier thus may not always be the same for the purpose of the Occupiers Liability Act 1957 (which is concerned with the duty of care owed to visitors to premises), for rating purposes (the liability to be rated in respect of occupation, the concept of which, for this purpose, has been highly developed through a large number of cases) and for the purposes of Part of the 1990 Act. In the Madrassa Islamin case Viscount Cave at 504 noted a distinction between occupation denoting "legal possession in the technical sense" and occupation denoting "nothing more than physical presence in a place for a substantial period of time." In the present context, occupation clearly means something more than use, a term which is, of course, employed in the 1990 Act and could have been used, but was not, in section 186(2). It is to be observed that under Part VII of the Act rights are conferred and protection is given to occupiers and requirements can be imposed on them in terms that vary. Under section 171C(1) an authority may serve a planning contravention notice on any person who is "the owner or occupier of the land or has any other interest in it." I have noted above the somewhat different wording that is used in section 172(2) and in section 174(1); and in section 186(2) itself the reference is to a person who "has an interest in or occupies the land to which the notice relates." I think it unlikely that, despite these differences of wording, what amounts to occupation may vary according to the section in Part VII that is being considered. Stevens v Bromley LBC established that a licensee (in that case a caravan-dweller) can be an occupier for the purposes of section 43(3) of the Town and Country Planning Act 1962 (the predecessor provision of section 172(2) of the 1990 Act), and it explained in this respect Munnich v Godstone RDC, which contained a dictum on the part of Lord Demming MR ([1966] 1 WLR 427 at 436C) that appeared to suggest that only a tenancy could make a person an occupier for this purpose. Scarborough BC v Adams, a decision of the Divisional Court to which Mr Mynors also referred and which concerned the conviction of squatters who had been served with an enforcement notice, was not founded on a conclusion that a squatter could be an occupier for the purpose of that particular provision (then section 87(4) of the Town and Country Planning Act 1971); and, if it had been, it would in my judgment have been inconsistent with Stevens and Munnich. For a person to be an occupier for the purposes of his enitlement to be served with a copy of an enforcement notice and his right to claim compensation under section 186, he must in my judgment have a right to occupy the land; and Stevens establishes that such right may be one that has been conferred by licence.
26. Under section 186(2), therefore, a claimant must be a person who has the right to occupy the land and is in fact in occupation. What amounts to occupation is likely to depend upon the nature of the use, but in all cases, in my judgment, the occupation must have a sufficient degree of permanence and must be exclusive (or paramount where there are two potential occupiers). Authority for this is contained in Stevens, where (at 411B) Salmon LJ said in relation to the caravan-dweller:

"His occupation of his caravan and the plot upon which it stood was far from transient; they were his permanent home. His occupation was exclusive. Even if the plaintiff had some measure of occupation in relation to the unit, Mr Wicks' occupation was plainly paramount."

And at 413 H Edmund Davies LJ said:

"For my part, I am prepared to apply the two tests of (a) degree of control and (b) duration propounded by Mr Albery and to hold that, unless he can satisfy them, a person living on a caravan site has no legal right to have an enforcement notice served upon him."

27. In my judgment these two tests of permanence and exclusivity fall to be applied in the light of any contractual terms or other limitations that condition the nature of the occupation. Physical acts of use are properly to be explained in the light of such rights as the person making use of the land may have; and the question of which of two possible occupiers is in paramount occupation may well depend to a substantial degree on the contractual relations between them. With these considerations in mind, I turn to the facts.
28. Each of the two licences commenced on 1 November 1994. The stop notice was served on 1 February 1995 and took effect on 5 February 1995, and the use of the land for the export of livestock then ceased, some 3 months after the commencement of the licence. ITF Ltd's security fencing remained in place until 15 June 1995. Active use of the Howarth Timber building ceased at the end of March 1995, although furniture and office equipment remained there for a few months after that. The building licence was terminable on 4 weeks notice.
29. As I have said above, the first licence granted ITF Ltd no rights in respect of any particular part of the land or of the port. It was a matter for the harbour master to direct which part of the port should be used. He could require ITF Ltd to move elsewhere at a moment's notice, just as he could (and did: see para 14 above)) direct where ships should berth. ITF Ltd's use of the land was just one of a number of such uses. The storage and shipment of granite setts and baled waste paper (see para 13) were other similar uses of parts of the B station site. That ITF Ltd was evidently permitted to erect security fencing round the area allotted to it does not seem to me inconsistent with a high degree of control exercised by the harbour master over the use of the port.
30. As I have said, the use of the Howarth Timber building ought properly to be viewed as being related to the ITF Ltd's use of the wharves and quays. The licences did not purport to grant an exclusive interest in the building, and it could be terminated on 4 weeks notice. The fact that furniture and office equipment was allowed to remain there after the claimant's active use had ceased, like the fact that the security fencing was allowed to remain, in my view sheds no light on whether the claimant was in occupation. Taking all these considerations into account I find that the claimant was not in occupation of the land and the building. The use was not permanent, but was both short-lived and liable to be so under the terms of the licences; and throughout the port authority, through the harbour master, was in paramount control of the land and the buildings.
31. The effect of this conclusion is that ITF Ltd has no right to compensation under section 186, and this is sufficient to dispose of the claim. The council contend further, however, that the claim cannot be made for another reason, that notice of it was not given within the prescribed time period. That period, under regulation 12 of the 1992 Regulations, was 12 months from the decision of the Secretary of State on 28 January 1998 by which he quashed the enforcement notice. On 25 February 1998 the solicitors then acting for ITF Ltd, Wynne Baxter Godfree, wrote to Mrs S Foster, the council's Assistant Director of Administration, as follows:

"In the light of the decision of the Secretary of State dated 28^th January 1998 we write to give you notice that it is the intention of our client company to claim compensation from your authority under section 186 of the Town and Country Planning Act 1990. Full details of the claim will be served on you in due course.

We also give you notice that we would wish to be served with notice of appeal under section 289 of the Town and Country Planning Act 1990 which your authority has made or intends to make.

We must place on record that as a matter of law we do not agree with the Secretary of State's decision on the question of our client's locus standi."

32. ITF Ltd's contention was that the first paragraph of the letter satisfied the requirements of regulation 12, ie that it was a claim for compensation made in writing and sent by post to the authority. The council said that the letter did not constitute a claim but was merely a statement of an intention to claim. Mr Mynors relied on a decision of this Tribunal (V G Wellings QC), Texas Homecare Ltd v Lewes DC (1985) 51 P & CR 205. In that case, which like the present case concerned a claim for compensation in respect of a stop notice, the claimant's solicitors had written to the council in these terms:

"Arising out of the quashing of the enforcement, and therefore of the stop notices, it seems to us that our clients are entitled to compensation and costs in relation to the appeal against the enforcement and stop notices and would be pleased to hear from you that your council recognises its liability under these heads. In the meantime our clients will be formulating their various heads of claim with a view to a formal submission of the claim to your council in due course."

The letter was dated 28 January 1981, one day after the Secretary of State's decision quashing the enforcement notice on which the stop notice had been based. The time limit for making a claim was then six months. On 12 or 13 August 1981, outside the time limit therefore, the claimant sent the compensating authority a claim for compensation.

33. The Member held that the letter of 28 January 1981 constituted a claim. He said:

"In my opinion section 177 and Regulation 14 [the equivalent provisions to those now in section 186 of the 1990 Act and regulation 12 of the 1992 Regulations] do not require that a claim for compensation in respect of a stop notice should be in any particular form or that it should state the sum claimed or that it should be a detailed claim. Of course a document which is alleged to constitute a claim must be unequivocal: it must make clear to the authority in question that a claim is being made; not that a claim is to be made in the future. I agree with Mr. Seward that the question in the present case is one of construction of the relevant passage in the letter dated January 28, 1981. In my view, in construing that passage, it is right that a benevolent construction should be used. In my judgment the passage brought to the notice of the council that a claim was then being made against it and that the reference to a formal submission of the claim in due course was a reference to an intention to file particulars of it. If the intention in the passage were merely to give warning that in the future a claim was going to be made then the request that the council should recognise its liability for compensation would hardly be apt until the claim had been made. Accordingly, in my opinion, the relevant passage constituted a claim in itself and the later claims, so far from being claims, were further and better particulars of a claim already delivered."

Mr Mynors places particular reliance on the swords, "Of course, a document which is alleged to constitute a claim must be unequivocal: it must make clear to the authority that a claim is being made; not that a claim is to be made in the future."

34. In my judgment the first paragraph of the letter of 25 February 1998 did constitute a claim for compensation. In saying that it was the intention of the company to claim compensation, the letter was, in my view, making the unequivocal assertion that the company was entitled to compensation. As the Member in Texas Homecare said, there was no requirement that the claim should state the sum claimed or that it should be a detailed claim. The letter went on to say: "Full details of the claim will be served on you in due course." It did not say: "The claim will be served in due course." What was to follow were the details of the claim that was being advanced in the letter. Having received the letter the council could have been in no doubt that the company was saying that it was entitled to compensation, and that details of the claim were to follow. A claim had, in my judgment, effectively been made for the purpose of the statutory provisions.
35. I accordingly determine as follows the preliminary issues:

(a) The claimant is not a person entitled by section 186(2) of the Town and Country Planning Act 1990 to be compensated in respect of the stop notice issued by the authority on 1 February 1995 relating to land and property known as the Brighton 'B' power station site at Shoreham-by-Sea, West Sussex;

(b) The letter of 25 February 1998 to the authority from the solicitors acting for the claimant constituted a claim for the purposes of regulation 12 of the Town & Country Planning General Regulations 1992 and section 186 of the 1990 Act.

36. The effect of (a) is to dispose of the reference, which is therefore dismissed. The parties are invited to make submissions on costs, and a letter dealing with this matter accompanies this decision. The decision will take effect when, but not until, the question of costs has been determined.

Dated 25 April 2003

George Bartlett QC, President

ADDENDUM ON COSTS

37. Submissions on costs have been received. The authority ask for their costs in the sum of £43,981.80. Mr Ford questions whether an order for costs should be made in view of the fact that the issue was a complicated preliminary point that needed to be determined. He also says that the amount claimed is out of all proportion to the work that would have been involved.
38. I can see no reason why International Ferry Traders Ltd as the unsuccessful party should not pay the costs of the authority, which has successfully argued that the proceedings should be dismissed. I am in no position to determine the question of quantum. I therefore order that the claimant pay the authority's costs of the proceedings, such costs if not agreed to be the subject of a detailed assessment by the Registrar on the standard basis.

Dated 13 June 2003

George Bartlett QC, President