Fawcett Properties Ltd v Buckingham County Council

[HOUSE OF LORDS.]

AND

Town and Country Planning - Development - Planning permission - Condition - Relation of condition to local planning considerations - Whether condition void for uncertainty - Town and Country Planning Act, 1947 (10 & 11 Geo. 6, c. 51), ss. 14 (1), 36.

Housing - "Agricultural population" - Meaning - Housing Act, 1936 (26 Geo. 5 & 1 Edw. 8, c. 51), s. 115 (2) - Town and Country Planning Act, 1947 (10 & 11 Geo. 6, c. 51), s. 119 (1).

Statute - Construction - Uncertainty - Whether provision void - Provision incorporated in condition of planning permission - Whether condition valid.

By-law - Validity - Uncertainty - Condition of planning permission - Whether analogous to by-law - Town and Country Planning Act, 1947, ss. 14 (1), 36.

By section 115 (2) of the Housing Act, 1936, which reproduces section 34 (2) of the Housing Act, 1930, "agricultural population" is defined as "persons whose employment or latest employment is or was employment in agriculture or in an industry mainly dependent upon agriculture, and includes also the dependants of such persons as aforesaid."

By section 14 of the Town and Country Planning Act, 1947: "(1) ... where application is made to the local planning authority

for permission to develop land, that authority may grant permission either unconditionally or subject to such conditions as they think fit, or may refuse permission; and in dealing with any such application the local planning authority shall have regard to the provisions of the development plan, so far as material thereto, and to any other material considerations. (2) Without prejudice to the generality of the foregoing subsection, conditions may be imposed on the grant of permission to develop land thereunder - (a) for regulating the development or use of any land under the control of the applicant ..."

By section 36: "Where, under the foregoing provisions of this Part of this Act, a local planning authority are required to have regard to the provisions of the development plan in relation to the exercise of any of their functions, then, in relation to the exercise of those functions during any period before such a plan has become operative with respect to the area of that authority, that authority shall have regard to any directions which may be given to them by the Minister as to the provisions to be included in such a plan, and subject to any such directions shall have regard to the provisions which in their opinion will be required to be so included for securing the proper planning of the said area."

Section 119 (1) defined "agriculture" as including "horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes."

In 1952 the respondent council, acting under the above sections, granted the appellants' predecessor in title permission to develop an area by building thereon a pair of cottages subject to a condition that: "The occupation of the houses shall be limited to persons whose employment or latest employment is or was employment in agriculture as defined by section 119 (1) of the Town and Country Planning Act, 1947, or in forestry or in an industry mainly dependent upon agriculture and including also the dependants of such persons as aforesaid." The permission stated that the reason for imposing the condition was "because the council would not be prepared to permit the erection of dwelling-houses on this site unconnected with the use of the adjoining land for agricultural or similar purposes." The condition was registered as a local land charge. The property was within the metropolitan green belt, but there was no development plan yet in operation, although one was being prepared. At first the cottages were occupied by persons whose employment was within the terms of the condition, but the appellants, who acquired the freehold in 1956, sought a declaration that the condition was ultra vires the respondents, or was void for uncertainty, or was no longer effective, having been applicable only to the first occupants:-

Held, (1) that the imposition of a condition restricting the use

of the premises according to the circumstances of the persons using them was not ultra vires the respondent council (post, pp. 659, 675,679, 684).

(2) That the condition was not ultra vires in that it was not so wide that the result could not fairly and reasonably be said to relate to the permitted development or to any policy under the Act of 1947 (post, pp. 660 to 662, 674, 678 to 680, 684 to 687).

Dicta of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, 233; 63 T.L.R. 623; [1947] 2 All E.R. 680, C.A., and of Lord Denning in Pyx Granite Co. Ltd. v. Ministry of Housing and local Government [1958] 1 Q.B. 554, 572; [1958] 2 W.L.R. 371; [1958] 1 All E.R. 625, C.A. applied.

(3) That the condition was not restricted to the first occupation of the cottages (post, pp. 659, 675, 681, 684).

(4) (Lord Morton of Henryton dissenting (post, pp. 667 to 670) that the condition was not void for uncertainty (post, pp. 662, 663,670 to 674, 676 to 678, 687 et seq.).

The language of the definition of "agricultural population" in section 34 (2) of the Housing Act, 1930, and section 115 (2) of the Act of 1936, from which the language of the condition was substantially taken, has an intelligible and ascertainable content both in the Act and in the condition.

Decision of the Court of Appeal [1959] Ch. 543; [1959] 2 W.L.R. 884; [1959] 2 All E.R. 321 affirmed.

APPEAL from the Court of Appeal (Lord Evershed M.R., Romer and Pearce L.JJ.).

This was an appeal from an order of the Court of Appeal dated April 27, 1959, discharging the judgment of Roxburgh J. dated October 29, 1958, and ordering that the action by the appellants, Fawcett Properties Ltd., against the respondents, the Buckingham County Council, should be dismissed and that the appellants should pay the respondents their costs of the action and occasioned by the appeal, to be taxed by the taxing master.

In 1952 Donald Decimus Clark, a farmer of Chalfont St. Giles in Buckinghamshire, wished to build two farm-workers' cottages, on the ground that, owing to the somewhat isolated position of his farm, it was necessary to offer living accommodation to his employees. At that time no development plan under section 5 of the Town and Country Planning Act, 1947, was operative in the county of Buckingham, and the Minister of Housing and Local Government had given no directions as to the provisions to be included in such a plan, but the respondents, the local planning authority for the county under the Act, had published in February, 1950, a provisional document described as an "outline Development Plan for Buckinghamshire," which recognised

that certain parts of the county, including the site in question in this appeal, should form part of the "Metropolitan Green Belt" and should be preserved so as to form a barrier against the further outward spread of London. Under section 12 of the Act it was incumbent on Clark to obtain permission for the erection of the cottages.

On July 22, 1952, the Amersham Rural District Council acting as agents for the respondents, dealt with an application by Clark and granted him planning permission in writing to erect "a pair of agricultural cottages" off Dibden Hill Lane, Chalfont St. Giles, on condition that "the occupation of the houses shall be limited to persons whose employment or latest employment is or was employment in agriculture as defined by section 119 (1) of the Town and Country Planning Act, 1947, or in forestry, or in an industry mainly dependent upon agriculture and including also the dependants of such persons as aforesaid." The reason given for imposing the condition was expressed as being "in the interests of the amenities of the locality and to ensure compliance with the county development plan."

On making preparations to commence work on the cottages, Clark experienced some difficulty as to his right to build on that site and, in order to save time and trouble, decided to re-site the cottages altogether, and substituted as a site the land to which the permission in question in this appeal related. Accordingly, on November 22, 1952, he made a fresh application to the respondents for planning permission for "the erection of a pair of farm-workers' cottages," and on December 5, 1952, the clerk to the rural district council for and on behalf of the respondents signed a planning permission which (omitting the formal parts) was as follows: "In pursuance of their powers under the above-mentioned Act and Order the Bucks County Council as Local Planning Authority hereby permit erection of pair of farm-workers' cottages at Dibden Hill Lane, Chalfont St. Giles, in accordance with your application dated November 22, 1952, and the plans and particulars accompanying it subject to the following conditions: (1) The occupation of the houses shall be limited to persons whose employment or latest employment is or was employment in agriculture as defined by section 119 (1) of the Town and Country Planning Act, 1947, or in forestry, or in an industry mainly dependant [sic] upon agriculture and including also the dependants of such persons as aforesaid The reasons for imposing the above conditions are: (1) Because

the council would not be prepared to permit the erection of dwelling-houses on this site unconnected with the use of the adjoining land for agriculture or similar purposes."

By section 119 (1) of the Act of 1947 "'agriculture' includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes."

By section 34 (2) of the Housing Act, 1930 (now section 115 (2) of the Housing Act, 1936): "For the purposes of this subsection the expression 'agricultural population' means persons whose employment or latest employment is or was employment in agriculture or in an industry mainly dependent upon agriculture, and includes also the dependants of such persons as aforesaid."

The condition was registered as a local land charge in the register of town planning prohibitions and restrictions.

Clark built the cottages shortly after the grant of the permission and used them for the housing of farm labourers for a substantial period of time.

On December 31, 1956, Clark's mortgagees conveyed the fee simple in the cottages to the appellants with vacant possession thereof, the appellants having knowledge of the condition. They wished to let the cottages to persons not qualified as occupants under the terms of the condition. There was a considerable correspondence between the parties on the subject of the removal or modification of the restriction but it led to no result, and on January 21, 1958, the appellants issued the specially indorsed writ in this action. By their statement of claim they claimed: "(1) A declaration that the condition is and was ultra vires, alternatively is and was void for uncertainty and of no effect and that the cottages may be lawfully occupied without regard to the nature of the employment of the occupants. (2) Alternatively, a declaration that the said condition has been fulfilled and that its force is now spent and that the cottages may now be lawfully occupied without regard to the nature of the employment of the occupants. (3) An order that the Register of Local Charges be rectified to accord with any declaration made by this honourable court."

R. E. Megarry Q.C., C. Fletcher-Cooke Q.C. and T. S. Leggfor the appellant company. The relevant sections of the Town and Country Planning Act, 1947, are sections 4 (1), 12, 13 (1) (b), 14 (1) (2) (3), 18 (3), 23, 24, 36 and 119 (1). See also paragraph 5 (9) of the Town and Country Planning General Development Order, 1950 (S.I. 1950, No. 728).

The first submission is that the imposition of a condition restricting the occupation of premises according to the personal circumstances of the occupant is ultra vires the respondents. When a house is used as a dwelling-house it matters not what is the occupation of the dweller (unless, say, he is a doctor using the premises also for his practice). Here the use of the premises as a dwelling-house would be the same if an agricultural worker lived there or if it were occupied by a former agricultural worker, now employed in a factory. It is possible to impose conditions confining the use of the house to use as a dwelling-house, but not to restrict occupation to persons having particular characteristics, including the characteristics of their employment. The planning authority may specify in what way the property is to be used, but it has no power to specify by what persons it is to be used.

In any event, it is ultra vires the respondents to impose the condition sought to be imposed because that condition as a whole, or, anyhow, as regards a substantial part of it, cannot be said to come within the words of Lord Denning in Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government¹ because it does not "fairly and reasonably relate to the permitted development" or to any possible policy under the Act of 1947. Thus a retired agricultural worker would satisfy the condition, on the ground that agriculture was his latest employment, but if he took temporary Christmas employment at the Post Office for three weeks, his latest employment would no longer be agriculture and he would be outside the condition. Again, a factory worker in a works manufacturing agricultural machinery, the demand for which depends on the continuation of agriculture, would be employed in an industry mainly dependent on agriculture and within the condition, but if he went to work in a typewriter factory he would be outside it. Again, suppose a worker in a factory, 80 per cent. of the production of which is agricultural machinery while 20 per cent. is motor-cars. Suppose the former item of production declines, while the latter increases until the

1 [1958] 1 Q.B. 554, 572; [1958] 2 W.L.R. 371; [1958] 1 All E.R. 625, C.A.; [1960] A.C. 260; [1959] 3 W.L.R. 346; [1959] 3 All E.R. 1, H.L.

proportions are reversed. Then at the start the worker would be within the condition, but at the end he would be outside it. Or again, taking a factory making agricultural machinery, suppose a worker, after handling the machinery, is put in the accounts department, he might thereby be put outside the condition. Or again, in the case of a large departmentalised concern with different factories for agricultural machinery and motor-cars a man transferred from the former to the latter might be put outside the condition. Or take a retired sheep farmer from New Zealand; he would be within the condition, but, if he started writing articles for the Press, he would be engaged in the newspaper industry and so would be in breach of the condition. Or take the case of a man and his wife occupying one of these houses, the man being employed in local agriculture. Suppose he emigrates to New Zealand and gets farming work there while Lois wife and children (his dependants) continue to occupy the house. As long as they are his dependants the condition is satisfied, but if he stops sending them money they cease to be his dependants and the condition is broken. Or if he himself goes into mining in New Zealand, the condition will also be broken.

A condition which produces such results cannot be related to any conceivable policy under the Act and so cannot be enforced. Such examples also indicate that it is void for uncertainty. Thus even if a condition limiting occupation to persons employed in agriculture as defined in section 119 (1) of the Act is valid, the list of permitted occupants cannot be extended to per ions whose latest employment has been in agriculture, to persons employed in "an industry mainly dependent upon agriculture" and to the dependants of such persons. Such a condition would be unrelated to any sensible planning policy and to the policy set out in the Outline Development Plan. See in particular p. 12 relating to the "Metropolitan Green Belt."

Absurdities would constantly arise. A retired fur breeder from overseas would be within the condition, although his children Who lived with him were engaged in non-agricultural office work. But a retired local government official would be outside the condition although his children living with him might all be engaged in agricultural world in the district.

The condition is riddled with uncertainty from its very start. the words "The occupation shall be limited to persons ..." The question arises whether it is the rateable occupier who must fulfill the condition or every person who lives in the house.

Suppose two brothers lived together, one a clerk and the other a farm-worker. If the latter were the tenant, then, treating "occupation" as equivalent to "tenancy," all would be well, blat on the other view the condition would be broken. If it is the rateable occupier who is aimed at, he can take in lodgers or paying guests who are not within the condition. Otherwise a farmer occupying one of the houses could not have a son living with him who earned his own living, say, in the county council offices, because he would not be a "dependant." On the other view, a retired Devon farmer could take in as paying guests people who went to work in London every day. The word "dependant" is also imprecise.

The words "farm-workers' cottages" in the licence is an architectural description and is not one relating to the calling of the occupiers.

The chief difficulties in this condition arise from the words "an industry mainly dependent upon agriculture." If they are capable of any ascertainable meaning, it is one which is wholly unrelated to any planning considerations. The words "dependent on agriculture" have no certain meaning; still less have the words "mainly dependent ..." The wide definition of agriculture could cover cotton growing in Egypt, sheep raising in Australia or chinchilla breeding in South America. The industries mainly dependent on agriculture include the fur, the leather and the textile industries, among several others. This would make many workers in London eligible to occupy these cottages, though at a certain stage of the manufacture, say, of boots or woollen clothes, the dependence may be so remote that a worker is not within the condition.

As to the expression "latest employment," it would enable a retired furrier from London or a retired sheep farmer from Australia to occupy the cottages, although a telephone operator in Chalfont St. Giles would be ineligible.

The words of the condition would create great difficulties if an occupier of a cottage who was undoubtedly within them changed his employment to one that was doubtful. Or there might be the case of a person who divided his time precisely between an agricultural employment and some other employment.

In the light of these considerations, the condition not only has, as a whole, no reasonable relation to any conceivable planning policy, but is not in accordance with the reason given by the respondents for imposing it, particularly the reference to "the use of the adjoining land for agriculture."

This condition stems from section 34 (2) of the Housing Act, 1930, now section 115 (2) of the Housing Act, 1936. The whole context of section 34 is financial, relating to money grants. Thus when it uses the expression "industry mainly dependent upon agriculture," the concept of financial dependence is easy enough, but dependence from a planning point of view is far more obscure and far harder to interpret precisely, when an agricultural context affords no aid in construing the word "dependent." Further, section 34 (2) refers to the "agricultural population of the district," that is the district of the rural district council, and that provides a definite meaning which the context of this planning condition does not afford. Thus a retired New Zealand sheep farmer would not be within section 34 (2). See also section 27 (1) of the Act of 1930.

But under the condition there is no geographical limit as to the place of latest employment or of actual employment, so that these cottages could be let to agricultural workers employed several miles away in another county, where their activities would be irrelevant to the preservation of the green belt. An assistant in a boot shop in a town would be within the condition, since agriculture includes the production of skins from which leather is made and so boot-making depends on agriculture. Yet such an employment would be irrelevant to the use of green belt land for agriculture.

The considerations already urged indicate both that the condition is irrelevant to planning policy and that it is void for uncertainty. So to hold would not mean that the words as used in the context of section 34 (2) of the Act of 1930 were void for uncertainty. The condition is expressed imperfectly, defining imprecisely the persons to whom occupation of the cottages is limited, so that often the owners would not know whether or not they were committing a breach of it in allowing a given person to be a tenant or occupier. A general proposition that a form of words cannot be void for uncertainty in any context at all simply because it has been used in a statute in a different context cannot be right.

The courts distinguish between powers of appointment and trusts. In the case of a trust the trustees must know all the persons within the relevant class, but that is not so in the case of powers, although there must be an outside boundary to the class in question: see Halsbury's Laws of England, 3rd ed.,

vol. XXX, p. 213, para. 375. Where one has a purely discretionary power uncertainty is less important than where there is a duty coupled with a criminal sanction.

Here a breach of the condition might entail penal consequences under sections 23 and 24 of the Act of 1947. A local authority cannot contract not to serve an enforcement notice under section 23. One should not be put in peril for an ambiguity: see London & North Eastern Railway Co. v. Berriman² The principle there expressed is applicable to planning law: see East Riding County Council v. Park Estate (Bridling ton) Ltd.³ and crisp from the Fens Ltd. v. Rut land County Council.⁴ In the latter case an originating summons might have been taken out to determine the simple ambiguity, but that could not be done here to resolve a general area of uncertainty involving more than two alternatives. The latter case stresses the importance of the reasons given for imposing the condition and indicates that conditions should be stated in plain language. In the present case the reasons do not resolve the ambiguity in the condition. Sifton v. Sifton⁵ provides an example of a condition subsequent in a will being held void for uncertainty because one must know precisely in advance what event will cause a forfeiture. The present case is not one of forfeiture of the estate, but of penal consequences, and the same principle applies. If there is any substantial area of real doubt as to what will cause a breach of the condition, that condition will be held void for uncertainty.

This condition is analogous to a by-law, which must be certain: see Halsbury's Laws of England, 3rd ed., vol. XXIV, p. 517, para. 951. Otherwise it will be held invalid: see Scott v. Pilliner.⁶

The condition was registered as a local land charge, but if a purchaser is to be bound, not only by the condition as framed but also by the reason given so as to give it added stringency, that reason also should be registered before it can expose the landowner to further perils. When there is a statutory power to impose conditions, then, even against the original purchaser, the reason given does not affect or alter that which has been done in subjecting the property to the form of words set out in the condition. There is a material difference between the reasons

2 [1946] A.C. 278, 313-314; 62 T.L.R. 170; [1946] 1 All E.R. 255, H.L.

3 [1957] A.C. 223, 230, 231, 232-233, 234, 240; [1956] 3 W.L.R. 312; [1956] 2 All E.R. 669, H.L.

4 (1950) 1 P. & C.R. 48, 53-54, 58, 59, C.A.

5 [1938] A.C. 656; 54 T.L.R. 969; [1938] 2 All E.R. 435, P.C.

6 [1904] 2 K.B. 855; 20 T.L.R. 662, D.C.

given for imposing the condition on the first application and those given on the second. The two are inconsistent.

But the form of this condition is full of uncertainty. When it says that occupation of the house shall be limited ..." to certain persons, it is not clear whether or not no person may live in the house unless he is in one of the categories set out. Thus children as they grow up and become self-supporting and independent might no longer be entitled to live in the house with their parent. Again, an occupier might cease to work in agriculture and become a part-time postman, thus putting himself outside the permitted class, even if his three grown-up sons, living with him, were full-time agricultural labourers. One runs into difficulties in every direction in trying to find what clear and certain concept it is intended to enforce. The expression "the dependants" is equally uncertain. Suppose an agricultural worker, who has lived in the cottage, dies, leaving a widow who stays on. Is she a dependant of the deceased? The answer depends on the sense in which one regards a widow as being a dependant. Does one look at the will or intestacy of the deceased? Suppose he leaves his widow nothing and she has to work as a cleaner in the council offices. Does she remain a dependant? Or suppose her son, a farm-worker, supports his widowed mother, is she then a dependant of her son? The context gives one no guidance to the specific meaning of the word "dependants," since one cannot be dependent on a person in a town and country planning sense. Even in a property sense the word "dependants" has been held void for uncertainty: see In re Ball,⁷ which illustrates the difficulty of saying what concept is embodied in the term. Suppose a man got 80 per cent. of his income from a rich uncle and 20 per cent. from his parents, on whom would he be dependent? The words "employment or latest employment is or was" are also uncertain in meaning. Does that mean exclusive or part-time employment? A man might make half his income from writing articles and half from breeding rabbits for fur. Then there is seasonal employment - the case of a retired farm-worker doing Post Office work at Christmas.

Thus an occupant of these cottages would be exposed to expulsion on all sorts of happenings which cannot be related to preserving the Green Belt, and, further, there is so much uncertainty in the words that this should tip the scales against the condition.

7 [1947] Ch. 228; 63 T.L.R. 94.

In the phrase "industry mainly dependent upon agriculture," there is an initial difficulty in the word "industry." Does it mean the industry as a whole or the particular industrial concern? Does it refer to the employer or company operating the concern or the individual factory? Or must one look at the actual work a man is doing? What would be the position of an accountant in a factory making agricultural tactors? Then there is the phrase "dependent upon agriculture." The milling industry consumes the products of agriculture. Agricultural tractor makers produce the tools of agriculture. Does dependent mean "financially dependent"? In the case of a factory the output of which was 80 per cent. motor-cars and 20 per cent. agricultural tractors, a large profit might be made on the one and a small one on the other. "Dependent" might mean dependent for profit or dependent for continued existence. One cannot decide what hypothetically may have been in the mind of the draftsman of the condition. Is the amount of the turnover or of the profit material? As to the construction of "mainly dependent," compare Bromley v. Tryon.⁸

If some geographical limitation had to be read into the words, one would still have to ask, what limitation? Would it be a limitation to adjoining land? What does adjoining land mean? Would it include land half a mile away? It is hard to discover any sensible geographical limitation. At the present time a farm-worker may go as far as 12 miles to his work on a motor-cycle or even in a motor-car. It might be reasonable to limit occupation to workers on land adjoining in the sense of actually contiguous, if that was what was said in the condition.

Whether in the case of a by-law or of a planning condition, the citizen should know precisely what condition binds him. The court is under no duty to find a meaning for that which has no meaning. In W. C. Townsend's Lives of Twelve Eminent Judges (1846), vol. I, p. 149, it is related that when in one case counsel submitted that it was the duty of the court to find the meaning of the testator, Sir Richard Pepper Arden M.R. said: "My duty, sir, to find out his meaning! Suppose the will had contained only these words 'Fustum funnidos tantaraboo,' am I to find out the meaning of this gibberish?" When words make no sense the court cannot interpret them. If language, construed in its context, does not make sense, it cannot be saved from being void by the fact that the same words are used in

8 [1952] A.C. 265, 275; [1951] 2 T.L.R. 1119; [1951] 2 All E.R. 1058.

another context and for quite different purposes in an Act of Parliament.

There is, further, another narrow point on the ultra vires aspect of the case, namely, that the condition is bad because it cannot be fairly related either (1) to any possible planning considerations or to planning policy in general, or (2) to the reasons given for imposing the condition in particular. The court cannot interfere with planning policy in any way. Planning policy may strike the court as being admirable or foolish, but that is not its concern. As a whole, this condition, though it is not entirely unrelated to any planning considerations, carries out no conceivable planning policy; no one has suggested what policy it carries out. It is irrelevant whether a cottage is large or small. The fact that these cottages are small rather aggravates the problem by reason of the employment problems of the persons who are likely to occupy them.

Section 14 (1) of the Act of 1947 creates no power to impose conditions on landowners, but only to grant a permission subject to conditions. See in particular section 14 (2) (b), which materially restricts the apparent width of the power to impose conditions.

The principle of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation⁹ was misapplied by the Court of Appeal. It was quite different from the present case where there is a great gulf between any conceivable planning policy and the actual condition imposed. If the condition imposed in that case had related to "any Wednesbury child," that would have introduced an element of uncertainty; so also would a condition that no children should be admitted unless they were "Wednesbury girls." Even if the respondents here had had all the right considerations in mind, this condition would still be void for uncertainty because it does not carry out any planning policy, in particular the policy set out in the reasons.

This condition is also ultra vires in the wider sense that the Act of 1947 creates no power to control the persons who may use or enjoy the property, but only the way in which it is used. This is so, though sometimes the personal characteristics of the occupier may affect the use of the property, as in the case of a dentist. So, too, with a game keeper's cottage, a caretaker's cottage or a mine manager's house, where the use of the building is affected by their duties. One cannot, under the guise of town

9 [1948] 1 K.B. 223; 63 T.L.R. 623; [1947] 2 All E.R. 680, C.A.

planning, establish control of colour, religion or work done. Section 12 (1) of the Act of 1947 is dealing with the use of land and not with the people who use it. In subsection (2) "the making of any material change" is the expression used. Other matters than use would fall within housing policy, for example, reserving certain cottages for the workers in a particular factory. Under section 18 (3) provision may be made for a buiding being used for certain "purposes." Its last words do not relate to the personality of the occupiers. There is control of how a building is used and what is done on the premises, but not of the persons who do it, what are their personal characteristics, their origin or their religion. These are not subject to planning control. This also appears from the long title to the Act. Only conditions which fairly relate to development come within it. Pilling v. Abergele Urban District Council¹⁰ is in the appellants' favour.

In any event, the condition has been fulfilled and its force is spent. As soon as the first occupant who complied with it wa installed, it was satisfied. The sole alternative to this construction is to say that it applies for ever and, since there is provided in the Act no way of revoking or modifying it, that would be unreasonable. There is no half-way house between the appellants' submission on this point and the view that the condition applies for ever, however frequent the change of occupation.

Local authorities should not be free to draft conditions in lax manner.

C. Fletcher-Cooke Q.C. following. It has been suggested that the scope of the permitted occupants under the condition was, in the interests of the landowners, made wider than it need have been and that such an extension is not ultra vires, because the landowners need not take advantage of it, since the condition is excessively liberal. But as to the powers of the respondents in this respect, see Prescott v. Birmingham Corporation.¹¹ In the present case the local authority, in view of the shortage of houses, has a duty to be fair to the various applicants for houses, and the operation of this condition would be unfair. The effect of its excessive liberality might be perhaps that a genuine Amersham man or a Post Office worker of Chalfont St. Giles might not come into consideration at all, while a manager of a textile factory in Harrow would.

10 [1950] 1 K.B. 636; 66 T.L.R. (Pt. 1) 166; [1950] 1 All E.R. 76, D.C.

11 [1955] Ch. 210; [1954] 3 W.L.R. 990; [1954] 3 All E.R. 698, C.A.

[LORD COHEN intimated that their Lordships would not require to hear argument from the respondents on the point that the condition had been fulfilled and its force was spent.]

Bernard MacKenna Q.C. and Alan Fletcher for the respondent council. A local authority is nonetheless planning the use of land within section 12 of the act of 1947 because it prescribes a more, rather than a less, restricted use. If, when it lays down that a building shall be used as a residence, it is planning. It is also planning when it lays down that the building shall be used by persons connected with agriculture; that is planning more narrowly than in the former case. A condition imposed under section 14 may properly add to the statutory requirements of the section a further requirement that some act shall not be done, though that act falls short of being "development." It may be a nice question of construction whether or not, once a condition is fixed under the act, there is any means of altering or revoking it, but that cannot have any bearing on the validity of the condition. The want of a means of escape cannot be the mark of an ultra vires condition; the presence or absence of a power to give relief is irrelevant. It is not accepted that section 14 (2) (b) materially restricts the width of the power to impose conditions. It is a fallacy to say that section 18 (3) relates only to the purpose for which a building is occupied and not to the personality of the occupier. Conditions cannot be confined to things which are development in themselves. See the reference to "any other material considerations" in section 23 (1), which gives to the authority a discretion whether or not to enforce a condition. It might be a "material consideration" if there was a surfeit of accommodation for agricultural labourers. This is material in considering the picture which counsel for the appellants has drawn of the hardship which might be suffered by a former agricultural worker who took temporary work at the Post Office. Section 23 of the act of 1947 provides means to determine doubtful cases. When the question arises what does a condition mean, there is no onus of proof, because on a question of construction as to the meaning of a legal instrument there is no such onus.

The reasons given in the two planning permissions granted are not inconsistent. They are both in accordance with the County Development Plan of the respondents, which indicates that their object is to maintain the normal life of an agricultural district. Sporadic residential development was to be checked and houses were not to be made available for city dwellers. Clark was given

permission to build these cottages so that he could farm properly. The local authority considered that it would help the Outline Development Plan to tie these cottages to occupation by agricultural labourers. The condition does not become unworkable if the planning authority does not assign any geographical limit to the place of work of the labourers concerned. The planning authority may have thought that in these days of easy transport it was best to omit such a limit. As to the width of the class of permitted occupiers, the same reasons which led to a generous definition of "agriculture" in the Housing Acts operate also in a planning context, for example, the advantage of providing housing for men working in a sugar beet factory. As to the principles of construction applicable when general words are used, reliance is placed on Gill v. City of Prahran.¹² The condition can only be held void for uncertainty if it is impossible to give the words any workable meaning. Mere ambiguity is not enough and the appellants cannot show that this condition is so ambiguous that it is impossible to give it a workable meaning. This is not a notably unsatisfactory document and it does not give rise to more difficulties than other documents of this kind. There are always difficulties in applying general words to particular cases: see Miller v. Ottilie (Owners)¹³ and Bromley v. Tryon.¹⁴ Counsel for the appellants drew a picture of an industry on the borderline of dependence on agriculture. It is doubtful whether there could be such an industry and even more doubtful whether in the circumstances which he described an enforcement order would be issued. The words "mainly dependent upon agriculture" probably mean dependence for the volume of the raw material of an industry such as the sugar beet industry, but one must look at the particular manifestation of the industry in question and determine by reference to that particular example whether it is mainly dependent on agriculture, and also look at the work on which the man is actually employed.

In the case of the word "dependants" it is accepted that it implies financial dependence. Too much should not be made of In re Ball¹⁵; see also In re Sayer.¹⁶ There is no authority for suggesting that an ambiguity may be solved where there are only two possible alternatives, but not where there are more.

12 [1926] V.L.R. 400, 413.

13 [1944] K.B. 188; 60 T.L.R. 169; [1944] 1 All E.R. 277, C.A.

14 [1952] A.C. 265, 272.

15 [1947] Ch. 228.

16 [1957] Ch. 423; [1957] 2 W.L.R. 261; [1956] 3 All E.R. 600.

Here the planning authority has decided to promote agriculture in this area and not to allow speculative residential development. It wants to include a man working within five or 10 miles of this cottage, but not to exclude a man temporarily out of work, and the words used are general. "Agriculture," in the light of the reason given, means agriculture in the locality. As to the meaning of "agriculture" and "agricultural population" in the context of the Housing Acts, see also section 97 of the Housing Act, 1930 (which by section 33 makes provision for subsidies). section 11 of the Housing (Financial Provisions) Act, 1938, section 25 (1) of the Housing (Financial and Miscellaneous Provisions) Act, 1946, and section 114 of the Housing Act, 1957. The meaning is similar to that prescribed by this condition. In Curtis v. Stovin¹⁷ Bowen L.J. said that "the rules of construction of statutes are very like those which apply to the construction of other documents, especially as regards one crucial rule, viz., that, if it is possible, the words of a statute must be construed so as to give a sensible meaning to them." In the Housing Acts one of the objects of the legislature was to encourage the construction of houses in rural districts for persons connected with agriculture. The Planning Acts pursue the same objects by different methods. If the arguments for the appellants were right and the condition was void for uncertainty, the same words would have the same effect in the context of the Housing Acts: see Lord Evershed M.R. in the Court of Appeal.¹⁸ The words "of the district" in section 34 (2) of the Housing Act, 1930, cannot be relied upon as giving greater certainty to the statutory provision, since they occur in the operative part of the section outside the definition. Even if those words were included in the condition in the present case, they would only affect the geographical limitations and not other matters. For the appellants reliance was placed on Berriman's case,¹⁹ but the passage cited must be looked at in its context. Nothing in the East Riding case²⁰ is applicable to the present case. See also the Crisp from the Fens case.²¹ Applying the ordinary rules of construction, there is here a workable condition. Sifton v. Sifton²² is not helpful here, but see Clayton v. Ramsden.²³ As to the

17 (1889) 22 Q.B.D. 513, 517; 5 T.L.R. 248, C.A.

18 [1959] Ch. 543, 568; [1959] 2 W.L.R. 884; [1959] 2 All E.R. 321.

19 [1959] A.C. 278, 313.

20 [1957] A.C. 223.

21 1 P. & C.R. 48, 57.

22 [1938] A.C. 656, 676.

23 [1943] A.C. 320, 328; 59 T.L.R. 75; [1943] 1 All E.R. 16, H.L.

construction of by-laws, see Leyton Urban District Council v. Chew.²⁴

If any part of the condition was void for uncertainty there would be severance. If there were prescribed qualifications all of which must be possessed by any occupier of the cottages, the uncertainty of one might be fatal to the condition, as in Clayton v. Ramsden.²⁵ But the situation is defferent here in that this condition prescribes a number of alternative qualifications, so that, even if one fails, the others need not. If one class was described in unintelligible words, it would be struck out, leaving the rest. In any event, one is here dealing with a relaxation and that ought not to render the whole void.

It is true that some of the terms of the condition may give rise to anomalies, so that some persons whose connection with agriculture is remote or almost non-existent may satisfy it, while others, who might be expected to qualify, would be excluded. But broadly the distinction which it makes is between persons whose employment would require them to live in a rural area and persons whose employment is such that they need not do so. The effect of the condition is to exclude office or industrial workers who might otherwise come and live in the area. The condition thus makes a sensible contribution to the preservation of the rural character of this part of the country. Since it is right in principle, its imperfections in detail do not warrant its being held ultra vires or void for uncertainty.

As to the appellants' argument that the condition is ultra vires, even if the class of persons who may do a thing in connection with land cannot be made part of the description of its use, it does not follow that a valid condition cannot be made defining such a class. The subject-matter of such conditions as this can be very wide: see, for example, clause 41 (2), dealing with clause 18 of the Caravan Sites and Control of Development Bill, now before Parliament.

Agriculture will be promoted by this condition, even though its intention may be defeated in certain exceptional circumstances. In nine cases out of 10 its effect would be to limit occupation to Local farm-workers. On the question of possible anomalies the Court of Appeal²⁶ took a more sensible view than Roxburgh J.²⁷

24 [1907] 2 K.B. 283, 288, 289, D.C.

25 [1943] A.C. 320.

26 [1959] Ch. 543, 567, 571, 577; [1959] 2 W.L.R. 884; [1959] 2 All E.R. 321.

27 [1958] 1 W.L.R. 1161, 1167-1168; [1958] 3 All E.R. 521.

There is far less real possibility of a retired New Zealand farmer becoming tenant of one of these cottages than of an agricultural worker doing so. The words "is or was employment in agriculture" in the condition were probably put in to cover the case of, say, a farm-worker from Northumberland coming south before he has actually got employment there. The occupation contemplated is rateable occupation. The risk of including an unsuitable occupier was regarded as less important by those who drafted this condition than the possibility of excluding someone who should be included. A condition does not become ultra vires because it could have been better drafted.

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation²⁸ was correctly applied by the Court of Appeal. See also Short v. Poole Corporation²⁹ and Slattery v. Naylor.³⁰ As to Prescott's case,³¹ see what was said by Jenkins L.J.

Alan Fletcher following. Every part of this condition is at least connected with the planning policy of the local planning authority. The condition was meant to be permanent throughout the lives of these cottages. The Outline Development Plan and the Green Belt policy were meant (1) to restrain sporadic building and (2) to encourage agriculture and rural life. The housing policy in this area was to have only just enough houses to maintain its rural life and character. When the planning authority granted the application it must have been satisfied that Clark required the cottages for his farming purposes, but some condition had to be imposed. In drafting the condition the first thought would be to limit occupation to agricultural workers employed on the holding; but the houses might not always be needed for such persons, and in that case no one would be available who was within the condition. So it was reasonable to bring into the condition all agricultural workers or workers in industries serving the needs of agriculture, as workers in a milk bottling depot or in a workshop repairing tractors. It was undesirable to specify individual industries, as the needs of agriculture change. There was nothing unreasonable in the draftsman of the condition taking over the phrase from the Housing Acts. If ten workers in the Green Belt are looking for houses, it is far easier for each man to find a house that suits him if the condition attached to every house available is such that any man can go into any house; each

28 [1948] 1 K.B. 223, 228.

29 [1926] Ch. 66, 90; 42 T.L.R. 107, C.A.

30 (1888) 13 App.Cas. 446, 452; 4 T.L.R. 426, P.C.

31 [1955] Ch. 210, 235-236.

would be fitted into the house which was best for him, so there is an advantage in Making the condition wide, despite the risk of letting in some people who are not the sort of people wanted. Only the local planning authority could estimate the extent of the risk of persons who were not wanted getting in. As for the objection that the condition ought to have been limited to workers in the particular area, in the Housing Acts the word "district" has a technical meaning, namely, the area of a district council and a district might not be a suitable unit for planning purposes. The border of a district might be very close to a farm and so it might not be practical to limit occupation of the cottages to persons working in the "district." If a vague word like "neighbourhood" were used, that would be uncertain. To limit the workers to workers in the "county" would be unsatisfactory because some cottages might be near the Hertfordshire border and other parts of Buckinghamshire might be remote. One might prescribe an exact distance within which the occupants must work, but that would be artificial and would create difficulties, say, in the case of foresters working in several woods. There would be difficulty in limiting occupation to workers in the Green Belt, because its limits have not been fixed.

R. E. Megarry Q.C. in reply. The excessive latitude of this condition renders it void. Take a hypothetical case of a condition limiting occupation of the cottages (1) to persons employed in local agriculture, or (2) to persons having planning merits, or (3) to persons who work for the local authority. No. 2 would be void for uncertainty and No. 3 would be ultra vires because it would carry out no planning purpose. No. 1 would not preserve the validity of the condition by itself, because the whole of the condition must have sufficient certainty and be intra vires. According to the argument for the respondents, one could ignore Nos. 2 and 3 and limit oneself to No. 1, but that would mean that there was no extension of the latitude at all. Here there is an unalterable condition in three parts, exposing the landowner on breach to enforcement notices. If no agricultural workers want to occupy the cottages the owner must take this risk or leave them unoccupied.

Under section 14 of the Act of 1947 a condition is something subject to which permission to develop land may be granted, for example, a condition prescribing the number of rooms in a house.

Here the planning authority gave quite different reasons for this condition on the later occasion from those which it had given

on the previous occasion. The amenity element was emphasised at one time but not at the other.

Allowing workers "in an industry mainly dependent upon agriculture," for example, workers in a cotton factory, to live in these cottages does not carry out any planning policy. It has nothing to do with preventing sporadic building. If tractors have to be manufactured, there is no sense in manufacturing them in the Green Belt.

One must distinguish between (1) uncertainty of a concept, when one cannot say which of two or more possible interpretations the draftsman had in mind, and (2) difficulty in the application of a concept: see In re Gape,³² where Sifton v. Soften³³ was considered. What one is concerned with in any case of uncertainty is the question whether there is a sufficiently clear concept. See also In re Leverhulme (No. 2)³⁴ and In re Moore.³⁵ If the concept is certain and one knows what the draftsman is getting at from the surrounding subject-matter, the condition will not be avoided because there is some difficulty in its application: see Gill v. City of Prahran,³⁶ a case which does not touch on uncertainty of concept. If one has a general concept, difficulties in its application can be overcome. A condition saying "if the majority of the Buckinghamshire ratepayers consider ..." would express a clear concept, though there would be difficulty in its application. But the words "if a majority of Buckinghamshire men consider ..." would be uncertain because it would raise such questions as: Does the condition include men born there or men who live there? Does "men" embrace "women"? Does it mean ratepayers? Does it mean men over 21 years of age? The context might show what was meant. condition to be valid must have a workable meaning, but if on the wording there are two or more workable meanings possible, there must be something to show which is meant, for example, in the contract or in a statute. In section 34 (2) of the Housing Act, 1930, the addition of the words "of the district" makes it clear what is meant by "agricultural population." They would make it clear that a furrier from London spending week-ends in a country cottage is not part of the "agricultural population

32 [1952] Ch. 418, 421-422; [1952] 1 T.L.R. 971; [1952] 1 All E.R. 827; [1952] Ch. 743; [1952] 2 T.L.R. 477; [1952] 2 All E.R. 579, C.A.

33 [1938] A.C. 656.

34 [1943] 2 All E.R. 274.

35 [1901] 1 Ch. 936, 938; 17 T.L.R. 356.

36 [1926] V.L.R. 410, 413-414.

of the district." A by-law may be void for uncertainty or unreasonableness: see Halsbury's Laws of England, 3rd ed., vol. XXIV, p. 515, para. 948, and Russom v. Dutton (No. 2),³⁷ per Lord Alverstone C.J. A planning condition does not go through the same fire of criticism in the course of drafting as a by-law and so is more likely to be uncertainly expressed.

[LORD DENNING. In Rex v. King³⁸ a statute was held to be so "inaccurately penned" that no conviction should be upheld under it.

Bernard Mackenna Q.C. In Green v. Wood³⁹ a phrase in an Act of Parliament was held to be meaningless, so that it must be disregarded.]

One effect of this condition, if it is upheld, would be that a man would be properly in occupation of one of these cottages if he was employed in a factory engaged in an industry mainly dependent upon agriculture, but that, if the factory turned over to non-agricultural production, he would either have to leave the cottage or change his job.

In re Vince⁴⁰ supports the view that the whole of this condition is void for uncertainty. (The report of this case is fuller in the Law Times than in the Law Reports.) See also Murray v. Dunn.⁴¹

As to the wording of the condition, "employment" means world-wide employment anywhere at all. The phrase "is or was employment in agriculture" was probably meant to cover retired people. If the respondents are right and "occupation" means rateable occupation, an agricultural worker whose three sons, living with him, worked in the council offices would be within the condition, but a council employee whose three sons living with him worked in agriculture would not be within it. As to the word "dependants," In re Ball,⁴² relied on by the appellants, was not a defeasance case. In re Sayer⁴³ is distinguishable and does not hurt the appellants' case.

As to restrictions on the user of land, see section 15 (1) and (7) of the Land Charges Act, 1925.

As to the ultra vires point, the local authority may prescribe the actual use to be made of premises, but not the personal qualities of those who may use them - their capacity in relation

37 (1911) 104 L.T. 601, 602; 27 T.L.R. 197, D.C.

38 (1826) 2 C. & P. 412.

39 (1845) 7 Q.B. 178.

40 [1892] 2 Q.B. 478; 67 L.T. 70, 71-72; 8 T.L.R. 334, C.A.

41 [1907] A.C. 283, H.L.

42 [1947] Ch. 228.

43 [1957] Ch. 423.

to the acts which they do off the premises. This is not like the case of a vicar in the vicar age, a game keeper occupying a cottage on a sporting estate, a pit manager occupying a house at the pit, a caretaker of a block of fiats occupying a flat there. The provision of a flat for the porter in an Inn of Court is one thing; the provision of a flat for him as a residence five miles away from the Inn is another and falls within the sphere of proper subject-matter for a planning condition. The decision in the present case cannot be rested on the size of the houses in question and on the fact that they are small cottages. That is not a decisive element, as suggested by Romer L.J.⁴⁴

On the question of the unfairness of this condition, one must judge it by its own words. If the council prescribes a condition which does not apply to local planning considerations, it is bad, no matter how good the council's intentions. Prescott's case⁴⁵ shows that one must judge the acts of the local authority by what it has actually done. In the present case there is a breach between planning policy and what the respondents have done. They did not have a clear concept of what they were trying to achieve by this condition.

Their Lordships took time for consideration.

1960. Oct. 26. LORD COHEN. My Lords, the question for yellower decision is as to the validity of a condition, which the respondents in exercise of powers conferred on them by section 14 (1) of the Town and Country Planning Act, 1947, imposed on the appellants' predecessor in title when granting on December 5, 1952, planning permission for the development of two farm-workers' cottages. The condition is in the following terms: "The occupation of the houses shall be limited to persons whose employment or latest employment is or was employment in agriculture as defined by section 119 (1) of the Town and Country Planning Act, 1947, or in forestry or in an industry mainly dependent upon agriculture and including also the dependants of such persons as aforesaid."

The appellants impugn the validity of the condition on four grounds. They say: (A) That the imposition of a condition restricting the user of premises according to the personal circumstances of the persons using them is ultra vires the respondents. (B) That the condition now under consideration is ultra vires in

44 [1959] Ch. 543, 574.

45 [1955] Ch. 210, 234-235.

that it is so wide that in the result it cannot fairly and reasonably be said to relate to the permitted development or to any policy possible under the Act of 1947. (C) That the condition is void for uncertainty, and (D) That in any event the condition has been fulfilled and its force is now spent.

Roxburgh J. rejected the first of those arguments but accepted the second and did not find it necessary to reach a conclusion on the third or fourth. The Court of Appeal rejected all four arguments.

My Lords, I have been privileged to read the opinion about to be delivered by my noble and learned friend, Lord Morton of Henryton, and do not find it necessary to restate the facts or the relevant sections of the 1947 Act and of the various housing Acts. Finding myself, as I do, in complete agreement with the opinions expressed by all your Lordships on the first, second and fourth of the arguments summarised above, I shall state my conclusions thereon quite shortly.

Dealing with the first of them, I agree entirely with what was said on the subject by their Lordships in the Court of Appeal. The argument that a planning authority cannot specify which persons may live in a house, but only the purposes for which it is to be used, apparently concedes that the defendants in the present case could have made it a condition that the cottages should only be used for the purpose of housing agricultural workers, and it is not easy to appreciate any significant difference between that condition and a condition that the occupation of the cottages should be limited to persons employed in agriculture. The difficulties in Mr. Megarry's argument are further illustrated by Romer L.J.¹ and I cannot usefully add anything to what he said on the subject.

The fourth argument, namely, that the condition has been fulfilled and its force is now spent, was not, I think, seriously pressed before us. Like the Master of the Rolls, I cannot think that any planning authority could sensibly, in a case of this kind, have supposed that it was discharging its statutory duty by imposing a condition restricted to the first occupation of the cottages.

I return to the second argument. Here, too, I find myself in complete agreement with their Lordships in the Court of Appeal. I assume, in dealing with this argument, that the condition which has been imposed is not so uncertain as on that ground to be

1 [1959] Ch. 543, 572; [1959] 2 W.L.R. 884; [1959] 2 All E.R. 321.

invalid. I shall deal with the question of uncertainty as a separate matter. On this basis, it seems to me quite plain that, though the wording of the condition may be unfortunate, it cannot be said to be unrelated to the planning purposes the fulfillment of which is the duty of the respondents.

The Master of the Rolls relied on the decision of the Court of Appeal in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation,² where the question at issue was as to the validity of a condition imposed by the Wednesbury Corporation in granting a licence to the plaintiff for Sunday cinema performances. The condition was to the effect that no child under 15 years of age should be admitted to Sunday performances at the cinema with or without an adult. It was sought to impeach the validity of this condition on the ground that it constituted an unreasonable exercise of the powers of the corporation. The court upheld the validity of the condition. The relevant passages of the judgment of Lord Greene, then Master of the Rolls, are fully set out in the judgment of the Master of the Rolls in the present case. I will content myself with citing one passage, which reads as follows³: "I do not read him [At kin J.] as in any way dissenting from the view which I have ventured to express, that the task of the court is not to decide what it thinks is reasonable, but to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose." In that case their Lordships were concerned with the policy of the local authority. In the present case it would perhaps be more accurate to say that what the House is concerned with is not planning policy but means of effectuating a policy predetermined. Be that so. I agree with Romer L.J.⁴ that the principle of the Wednesbury⁵ umbrella covers decisions reached in effectuating planning policy.

In support of this second alleged ground of invalidity Mr. Megarry relied mainly on the following argument. He said that the scope of the condition was unrelated to the policy declared in the outline plan or to any other sensible planning policy. He conceded that, if his first argument was ill-founded, the condition that the occupation of the houses should be limited to persons whose employment is employment in agriculture as defined by

2 [1948] 1 K.B. 223; 63 T.L.R. 623; [1947] 2 All E.R. 680, C.A.

3 [1948] 1 K.B. 223, 233.

4 [1959] Ch. 543, 569.

5 [1948] 1 K.B. 223.

section 119 (1) of the Act of 1947 was unobjectionable. But he said that extending the list of permitted occupants to (1) persons whose latest employment had been in agriculture, a category which would include persons who had been employed in agriculture overseas; (2) persons employed in "an industry mainly dependent upon agriculture"; and (3) dependants of such persons as aforesaid had so wide an effect that the condition could not be said to be reasonably related to the planning policy indicated in the permission. Mr. Megarry gave a number of illustrations in argument showing that a large category of persons could qualify as tenants whose occupation of the cottages could bear no relation to any sensible planning policy and certainly not to the policy outlined in the outline Development Plan.

The respondents, by their counsel both in the Court of Appeal and before your Lordships, frankly admitted that curious and anomalous positions might arise under the terms of the condition and that certain persons whose connection with agriculture was non-existent or remote might qualify as tenants whilst other persons who might ordinarily be expected to qualify would find themselves excluded. But they submitted that the condition made a broad division between persons whose employment is such that they may have to live in a rural area and persons whose employment is such that they need not; and that the effect of the condition was to exclude such persons as industrial or office workers who might otherwise have come into the area; that it therefore made a sensible contribution to the retention of the rural character of the part of the county concerned. The condition, it was said, was right in principle and the imperfection of detail afforded insufficient grounds for holding it to be ultra vires. Romer L.J. agreed with this contention but thought the condition was unfortunately worded. He added that absurd results could follow but that having regard to its terms it did seem that broadly speaking it was in line with the Outline Development Plan. "It is," he said,⁶ "not possible to say that the condition could not implement the policy outlined in that document; on the contrary, it seems to me that it almost certainly will implement it, notwithstanding that it is dissociated from the policy in certain of its aspects."

I agree with this view. It seems to me impossible to say that no reasonable planning authority, acting within the four corners of their authority, could have decided to impose it, and

6 [1959] Ch. 543, 571.

in my opinion your Lordships, applying the decision in the Wednesbury case,⁷ should hold that it is not ultra vires the respondents.

I turn now to the third argument, namely, that based on uncertainty. I confess that this point has caused me much difficulty but upon consideration I have come to the conclusion that for the reasons so clearly stated in the opinions which will soon be delivered by my noble and learned friends, Lords Denning and Jenkins, this argument also fails. It is based in the main on the principle relating to penal provisions of a statute which was concisely stated by my noble and learned friend, Viscount Simonds, in London & North Eastern Railway Co. v. Berriman,⁸ in these words. "A man is not to be put in peril upon an ambiguity." This principle involves that if a statutory provision is ambiguous, the court should adopt any reasonable interpretation which would avoid the penalty, but the court should not, I think, strike a provision out of an Act on the ground of uncertainty unless it is impossible to resolve the ambiguity which it is said to contain. In the present case your Lordships are considering not a statutory provision but a condition imposed in a planning permission. But the language of the condition is taken from the definition of "agricultural population" in section 34 of the Housing Act, 1930. See also section 115 (2) of the Housing Act, 1936. It is true that the context in which the expression under consideration is used in those Acts is different from that in which it is used in the condition imposed under the Town and Country Planning Act, 1947. But I agree with the Master of the Rolls⁹ that it is "inescapable that, if Mr. Megarry's arguments that the language in the condition to which I have referred is void for uncertainty in the context of the condition, it is no less void for uncertainty in the context of the Housing Acts."

Mr. Megarry also relied on Sifton v. Sifton¹⁰ and other cases on defeasance clauses. I agree with my noble and learned friend, Lord Denning, that these cases are sui generis. Such clauses may involve a forfeiture and the courts have insisted that they must be so worded that persons affected by them can know with certainty what events will give rise to the forfeiture.

In the present case the words which are alleged to create the uncertainty are not added to restrict the land-owner's enjoyment

7 [1948] 1 K.B. 223.

8 [1946] A.C. 278, 313-314; 62 T.L.R. 170; [1946] 1 All E.R. 255, H.L.

9 [1959] Ch. 543, 568.

10 [1938] A.C. 656; 54 T.L.R. 969; [1938] 2 All E.R. 435, P.C.

of his land but to mitigate the severity of the restriction which the respondents are imposing on that enjoyment. It would indeed be unfortunate if these words were now to be held to have the effect of nullifying entirely a restriction which was, in part, at any rate, plainly within the policy of the Act.

I do not find myself driven to this conclusion. In my opinion, in construing a statute or a contract a court should not hold a provision thereof to be void for uncertainty unless it cannot resolve the ambiguity which is said to be contained therein. I am not satisfied that the condition in the present case contains any such insoluble ambiguity. I do not desire to anticipate what the decision will be if at some future time any particular occupancy of these cottages is challenged as infringing the conditions. It is sufficient to say that as at present advised I see no reason to think that the court would be unable to resolve the ambiguity.

For these reasons I would dismiss the appeal.

LORD MORTON OF HENRYTON. My Lords, the appellants are the owners of two cottages situate off Dibden Hill Lane, Chalfont St. Giles, in the county of Buckingham. The respondents are the local planning authority for that county under the Town and Country Planning Act, 1947. The cottages were erected by the appellants' predecessor in title, pursuant to a permission granted by the respondents under powers contained in that Act. In this appeal the appellants challenge the validity of a condition attached by the respondents to the permission so granted.

It will be convenient to refer at once to certain provisions of the Act of 1947. The opening words of the title are: "An Act to make fresh provision for planning the development and use of land, for the grant of permission to develop land and for other powers of control over the use of land." There follow other objects of the Act, and the title ends with the words: "and for purposes connected with the matters aforesaid."

Section 5 (1): "As soon as may be after the appointed day" (July 1, 1948), "every local planning authority shall carry out a survey of their area, and shall, not later than three years after the appointed day, or within such extended period as the Minister may in any particular case allow, submit to the Minister a report of the survey together with a plan (hereinafter called a 'development plan') indicating the manner in which they propose that land in that area should be used (whether by the carrying out thereon of development or otherwise) and

the stages by which any such development should be carried out."

Section 5 (4): "The Minister may approve any development plan submitted to him under this section either without modification or subject to such modifications as he considers expedient ..."

Section 12: "(1) Subject to the provisions of this section and to the following provisions of this Act, permission shall be required under this Part of this Act in respect of any development of land which is carried out after the appointed day. (2) In this Act, except where the context otherwise requires, the expression 'development' means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land ..."

Section 14: "(1) Subject to the provisions of this and the next following section, where application is made to the local planning authority for permission to develop land, that authority may grant permission either unconditionally or subject to such conditions as they think fit, or may refuse permission; and in dealing with any such application the local planning authority shall have regard to the provisions of the development plan, so far as material thereto, and to any other material considerations. (2) Without prejudice to the generality of the foregoing subsection, conditions may be imposed on the grant of permission to develop land thereunder - (a) for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appears to the local planning authority to be expedient for the purposes of or in connection with the development authorised by the permission ..."

Section 36: "Where, under the foregoing provisions of this Part of this Act, a local planning authority are required to have regard to the provisions of the development plan in relation to the exercise of any of their functions, then, in relation to the exercise of those functions during any period before such a plan has become operative with respect to the area of that authority, that authority shall have regard to any directions which may be given to them by the Minister as to the provisions to be included in such a plan, and subject to any such directions shall have regard to the provisions which in their opinion will be

required to be so included for securing the proper planning of the said area."

By article 5 (9) of the Town and Country Planning General Development order, 1950 (S.I. 1950, No. 728), which was made under powers contained in the Act of 1947, "Every such notice" (of the local planning authority's decision) "shall be in writing and (a) in the case of an application for planning permission or approval, where the local planning authority decide to grant such permission or approval subject to conditions or to refuse it, they shall state their reasons in writing ..."

My Lords, it is to be observed that under section 14 (1) of the Act of 1947 the planning authority may impose "such conditions as they think fit" when they grant permission to develop land. These words are extremely wide, but the appellants rely upon the words of my noble and learned friend, Lord Denning, in Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government¹¹: "... nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development." They submit (inter alia) that the condition imposed in the present case fails to answer this test, and further, that the condition is void for uncertainty.

The events leading up to this appeal are as follows. On November 22, 1952, Mr. D. D. Clark, who was then the owner of the land upon which the two cottages were subsequently erected, applied in writing for permission to develop the said land by "the erection of a pair of farm-workers' cottages." At the date of this application no development plan under section 5 of the Act of 1947 had become operative in the county of Buckingham and the Minister had not given any directions as to the provisions to be included in such a plan, but the respondents had published in February 1950 a document described as an "outline Development Plan for Buckinghamshire" which recognised that certain parts of the said county, including the site in question, should form part of the "Metropolitan Green Belt" and should be preserved against building development so as to form a barrier against the further outward spread of London.

On December 5, 1952, the Amersham Rural District Council, acting as agents for the respondents, granted permission in writing for the erection of a pair of farm-workers' cottages in accordance with Mr. Clark's application subject to a condition that: "The

11 [1958] 1 Q.B. 554, 572; [1958] 2 W.L.R. 371; [1958] 1 All E.R. 625, C.A.; [1960] A.C. 260; [1959] 3 W.L.R. 346; [1959] 3 All E.R. 1, H.L.

occupation of the houses shall be limited to persons whose employment or latest employment is or was employment in agriculture as defined by section 119 (1) of the Town and Country Planning Act, 1947, or in forestry or in an industry mainly dependent upon agriculture and including also the dependants of such persons as aforesaid. The definition of "agriculture" referred to in the condition is as follows: "'agriculture' includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes." The language of the condition, from the word "persons" on-wards, is identical with the language employed in section 34 (2) of the Housing Act, 1930 (now section 115 (2) of the Housing Act, 1936), except that the words "or in forestry" do not appear in either of these statutes. The permission included a statement of the reason for imposing the condition as follows: "Because the council would not be prepared to permit the erection of dwelling-houses on this site unconnected with the use of the adjoining land for agricultural or similar purposes."

It is common ground between the parties that the cottages now in question were occupied for some time by farm-workers after they had been erected by Mr. Clark.

On December 31, 1956, the appellants bought the cottages with knowledge of the condition, which had been registered as a local land charge. Letters were exchanged between the parties on the subject of the removal or modification of the condition but they led to no result and on January 21, 1958, the appellants issued the specially indorsed writ in this action. By their statement of claim the appellants asked for a declaration that the condition is and was ultra vires, alternatively is and was void for uncertainty and of no effect, and that the cottages might lawfully be occupied without regard to the nature of the employment of the occupant. Alternatively they asked for a declaration that the condition had been fulfilled and that its force was spent. They further asked for an order to rectify the register of local land charges. Before the learned trial judge, Roxburgh J., in the Court of Appeal and in your Lordships' House, counsel for the appellants contended that the condition was invalid on one or

more of the following grounds: 1. The imposition of a condition restricting the occupation of premises according to the personal circumstances of the occupant is ultra vires the respondents. 2. It is ultra vires the respondents to impose the condition that they sought to impose in this case, since the condition as a whole, or alternatively a substantial part thereof, cannot fairly and reasonably be said to relate to the permitted development or to any policy possible under the Act of 1947. 3. The condition is void for uncertainty. 4. The condition has already been fulfilled and its force is spent.

Roxburgh J. rejected the first contention, but accepted the second contention, granted a declaration that the condition was ultra vires upon that ground, and ordered the vacation of the entry in the register of local land charges. He expressed no opinion on the third and fourth contentions. The Court of Appeal (Lord Evershed M.R., Romer and Holroyd Pearce L.JJ.) in a reserved judgment rejected all four contentions, allowed the appeal of the present respondents and dismissed the action.

My Lords, I agree with the reasoning and the conclusion of the Court of Appeal in regard to the first, second and fourth contentions, but in my opinion the condition ought to be held void on the ground of uncertainty.

On the question of uncertainty, the Master of the Rolls, after referring to the criticisms directed at the language of the condition by leading counsel for the present appellants (Mr. Megarry, Q.C.) observed¹² "It is undeniable that these criticisms have much force." Romer L.J. said¹³: "It remains to consider whether the condition imposed by the defendants is void for uncertainty, and this question has caused me considerable doubt." Later, he said¹⁴: "It is, in my judgment, quite wrong that a condition couched in such vague and ambiguous terms should be imposed by any planning authority, and I can only hope that it will never be imposed again." Holroyd Pearce L.J. said¹⁵: "There is no doubt that the condition is cumbrous and unsatisfactory, and can in extreme instances produce ridiculous results."

My Lords, I agree with these last two observations. Before returning to the words of the condition, I desire to say this. It is, to my mind, particularly important that the language of a condition imposed under the provisions of the Act of 1947 should be clear and unambiguous, for sections 23 (as amended by section

12 [1959] Ch. 543, 565.

13 Ibid. 573.

14 Ibid. 573-574.

15 Ibid. 576.

2 of the Town and Country Planning (Amendment) Act, 1951) and 24 of the Act impose penal sanctions upon any breach of such a condition. As my noble and learned friend, Viscount Simonds, said in London & North Eastern Railway Co. v. Berriman ¹⁶: "A man is not to be put in peril upon an ambiguity." In my opinion, a condition which is accurately described in the words of Romer and Holroyd Pearce L.JJ. already quoted should not be allowed to remain as a permanent burden attached to the ownership of these two cottages.

Mr. Megarry, for the appellants, in this House submitted that the condition was "riddled with uncertainty." His criticisms were most forcibly directed to the words "an industry mainly dependent upon agriculture," but he pointed out that the opening words: "The occupation of the houses shall be limited to persons," etc., at once raise an ambiguity. Do these words mean that no one is ever to live in either house unless he comes within the condition, or is it enough that the rateable occupier is within the condition, so that he can take in lodgers or paying guests who are not within it? If the former is the true meaning, a farmer occupying one of the cottages could not have living with him an adult son who was earning his own living, e.g., in the county council offices, for he would not be a "dependant." If the latter is the true meaning, as there is no limitation upon the land whereon the "person" is or was employed, a retired farmer from, for example, Devonshire, could become tenant of the two cottages and take in as paying guests persons who daily travelled to work in London. It is difficult to see what planning purpose could possibly be served by such a condition and equally difficult to reconcile it with the reason which the respondents gave for the imposing of the condition, referring to "the use of the adjoining land."

Mr. MacKenna, for the respondents, submitted that the word "agriculture," read in the light of the reason so given, ought to be construed as meaning "agriculture in the locality." My Lords, there are two fatal objections to this submission. First, to insert the words "in the locality" is not to construe the condition but to rewrite it. Secondly, the insertion of the words "in the locality" merely makes the condition even more uncertain. Mr. MacKenna was asked to define the limits of the territory designated by the words "the locality," and it is not surprising that he was unable to do so.

16 [1946] A.C. 278, 313-314.

Other criticisms were directed to other words in the condition, but I shall not detain your Lordships by travelling through them, for in my opinion the words "mainly dependent upon agriculture" are of themselves enough to lead your Lordships to declare the condition void. The word "mainly" at once gives rise to difficulties. Probably it means "more than half" and this was the meaning which this House gave to the phrase "the bulk thereof" in Bromley v. Tryon.¹⁷ Even so, one must ask "more than half of what?" There is no context in the condition which gives any assistance. Does the word refer (for instance) to turnover, to value or volume of goods produced for agriculture, to value or volume of raw material supplied by agriculture, or to profits? There is no reason, in a planning condition, for selecting one alternative rather than another. Indeed, two or more of these possible alternatives were suggested from time to time in the course of the argument, either by your Lordships or by counsel for the respondents, as being the correct solution of the problem. Moreover, all these factors may vary from time to time, and a business which is "mainly dependent" at one time may cease to be "mainly dependent" at another. In these circumstances a tenant who was within the condition when he entered upon his tenancy would become outside the condition, and the owner and occupier would both be in peril under sections 23 and 24 of the Act of 1947.

Again, in what sense is the word "dependent" used? Does it mean dependent for its supplies, as in the case of a beet sugar factory, or dependent for its customers, as in the case of a business which produces tractors and fertilisers to be used in agriculture ? Or does it mean dependent in some other sense?

My Lords, ambiguity in any part of the condition may at any time put the owner of the cottages in grave peril under the provisions of sections 23 and 24 of the Act of 1947. The condition remains in effect as long as the cottages are in existence, and a time may come - it may have come already - when no one employed in agriculture or forestry desires to occupy them or one of them. The owner may then have great difficulty in determining whether a tenant or prospective tenant is or is not within the terms of the condition. It may be said that the court can interpret the condition and apply it to the particular facts of each case on an appeal under section 23 (3) of the Act of 1947, but to this there are two answers. First, that the owner of the

17 [1952] A.C. 265; [1951] 2 T.L.R. 1119; [1951] 2 All E.R. 1058, H.L.

cottages ought not to be put to the trouble and expense of going to the court by reason of ambiguity in the condition. Indeed, he might have to go to the court on several occasions, in regard to several successive tenants. Secondly, in choosing between the various possible meanings of the words the court would be merely making a guess. There is no context which points to any one meaning of the words "mainly" and "dependent" and reveals the concept in the mind of the draftsman. The Master of the Rolls and Romer L.J. were strongly influenced by the fact that the wording of the greater part of the condition had been taken from section 34 (2) of the Housing Act, 1930, but I would adopt the words of Holroyd Pearce L.J.¹⁸: "... it is no answer, as Mr. Megarry rightly says, to an accusation of uncertainty that the condition contains words used in an Act of Parliament in another context." If any court has to interpret the statutory words hereafter, it may well find in the context some clue to the meaning of the words. In the present case one gets no such guidance.

For these reasons, my Lords, I would allow the appeal and grant a declaration that the condition in question was and is void for uncertainty. I add that it was not, I think, suggested by counsel for the respondents that it is not open to your Lordships to take this course, if you are satisfied that the words of the condition are so uncertain as to justify it.

LORD KEITH OF AVONHOLM. My Lords, in his argument for the appellants, Mr. Megarry placed in the forefront the submission that the condition attached to the planning permission given by the respondents, the county council, was void for uncertainty. The other challenges of the validity of the condition put forward by the appellants do not need to be considered if this submission is sound. Logically, therefore, it should be considered first.

As stated the point is one of uncertainty of concept. If it is impossible, on construction of the condition, to reach a conclusion as to what was in the draftsman's mind, the condition is meaningless and must be read as pro non scripto. It is not a question of ambiguity. If a clause may convey several different meanings it is for the court to say, looking to the general background, surrounding circumstances, subject-matter of discourse and other aids derived from the context of the clause, supplemented not infrequently by certain legal presumptions, what

18 [1959] Ch. 543, 577.

meaning is to be attributed to the clause. Reference was made in the course of the argument to a dictum of Lord Simonds in London & North Eastern Railway Co. v. Berriman¹⁹ that a man is not to be put in peril upon an ambiguity. That has much force in a penal statute, as was the Act there under consideration. Where two constructions are open one of which involves penal consequences, or even civil liability, and the other does not, it may be proper to adopt the construction which avoids these consequences, though I should not accept this as a universal rule in all circumstances. (See also Elmdene Estates Ltd. v. White,²⁰ per Lord Simonds.) But the question here is different. It is whether one or more intelligible concepts can be extracted from the condition here under challenge.

The condition is a condition attached to a planning permission and the permission was for the erection of a pair of farm-workers' cottages. The argument for uncertainty consisted largely in dissecting various words or phrases in the condition and submitting that their width, or scope, was such as to make it impossible to say what was in the draftsman's mind. Reading the condition as a whole I do not find any insuperable difficulty in arriving at a reasonable and clear idea of the content of the condition. It refers in the first place to "the occupation of the houses," which I read as being confined to occupation by persons having certain defined qualifications and to the dependants of these persons. There may be a certain ambiguity here, but your Lordships are not concerned here with resolving ambiguities or placing a considered and final meaning on the condition. Speaking for myself I would not read the occupation as covering an independent occupation by dependants of the persons mentioned, but as including occupation by such dependants while living in family with such persons and occupying the houses along with them. Death, or removal from the houses, of the persons defined would terminate the occupation of the dependants. Nor can I see any difficulty in construing "dependants," when brought within the confines of a house, as meaning persons living in family with the person defined and dependent on him in whole or part for their subsistence and support. Then I come to the words "whose employment or latest employment." Latest employment would, I think, cover the case both of a man who

19 [1946] A.C. 278, 313-314.

20 [1960] A.C. 528, 539; [1960] 2 W.L.R. 359; [1960] 1 All E.R. 306, H.L.

was temporarily unemployed or of a man who from old age, or illness, was no longer able to work. Nor, as I see it, need the words necessarily exclude a man who was engaged in other part time, or temporary, employment, if he could still be regarded as a farm-worker, or retired farm-worker, or a worker in one of the other specified categories. The words "agriculture as defined by section 119 (1) of the Town and Country Planning Act, 1947," were next prayed in aid as showing the width of the condition. A man retired from sheep farming in New Zealand or fur trapping in Canada would, it was said, come within the condition. So be it, if that was the proper construction of the condition. That does not establish uncertainty. But again, for myself, I should doubt if any such result followed. This is an Act applying to England. We were not referred to the use of the word "agriculture" in the body of the Act. But I see no reason to suppose that it was intended to refer to agriculture outside England and I should be disposed to construe "agriculture," as defined in the Act, with that limitation. In paragraphs 4 and 5 of Schedule III (in which on a cursory survey of the Act I have found the word used) it could have no other meaning. It may be that in a planning scheme for a particular area it should further be confined to agriculture within that area. That point may be left for future determination should it ever arise. Lastly there are the words employment "in an industry mainly dependant (sic) upon agriculture." What, it is said, does this connote? In a very wide sense it may be said that all industry depends on agriculture, inasmuch as the workers in industry, to enable them to work, require the corn, meat and to some extent clothing produced by agriculture. If so the industry of agriculture itself depends on agriculture. So wide a meaning need hardly be considered. But an industry may be dependent on agriculture in a more limited sense, if it depends for its raw material on the products of agriculture. Such, for instance, would be a corn mill, a sugar-beet factory, or a harvester combine. The converse case of an industry which produces machinery, implements or material for agriculture may be more doubtful. There it might be said rather that agriculture is dependent on the manufacturing industry. I say nothing, however, to prejudice any particular case that may arise. On either or both of the views indicated the general concept seems to me to be clear enough and in relation to the occupier of one of these small cottages I would anticipate no difficulty in deciding on which side of the line he falls or in dubio giving him the benefit of the doubt.

The argument for invalidity is largely countered by the fact that the condition is substantially borrowed from words found in the Housing Acts. It will be sufficient to refer to the definition of "agricultural population" in section 34 of the Housing Act, 1930 (20 & 21 Geo. 5, c. 36), which is, I think, more apt for a solution of the present question than Mr. Megarry would suggest. It was said that the agricultural population there referred to was the agricultural population of the district, that is, under section 34, the rural district of the district council concerned, and that the definition of agricultural population had to be construed in this context. The suggestion, as I understood it, was that in this context the definition was capable of a definite meaning which, in the absence of any such context, was not possible in this town planning condition. On the contrary I think there is considerable correspondence in the respective situations in which the definitions fall to be construed. Under section 34 (2) of the Housing Act an estimate has first of all to be made of the number of houses likely to be required by the district council for the housing of the agricultural population of the district. If matters had stood thus there might have been no great difficulty in forming an estimate in light of the definition. The difficulty would arise under the latter part of the subsection and this has, I think, great relevance in the present case. Within the ceiling estimated the county council had to undertake to pay to the district council, and I quote, "in respect of each of the forty years next following the completion of the houses a contribution at the rate of one pound per house payable, subject as hereinafter provided, in respect of so many of the houses provided with the approval of the Minister as are in that year occupied for a period or periods exceeding nine months by members of the agricultural population: Provided that no such contribution shall be payable in respect of a number of houses greater than the number of houses so determined as aforesaid to be required for the accommodation of the agricultural population of the district."

That means that each year for forty years a calculation had to be made of the number of houses provided under the Act occupied by members of the agricultural population, before the subsidy could be paid in respect of a particular house. Thus the definition had to be considered with reference to each occupant of the respective houses every year to see whether or not he came within the definition. If the definition fitted he was necessarily a member of the agricultural population "of the

district," for he was living "in the district." The same questions, as I see it, would arise there as here. In particular the county council might have to consider the question which was so much stressed in argument, whether some of the occupants were employed "in an industry mainly dependent upon agriculture." This particular requirement disappeared with the Housing Act, 1935, but that does not touch the matter and the definition of agricultural population was left standing for the other purposes of the Acts. The question as I see it is precisely the same as arises in the present case. The houses are in the area of the planning authority and the only question is, are they occupied by persons who come within the definition?

I should find it difficult, as the Court of Appeal found it difficult, to say that the definition in the Housing Acts had no intelligible or ascertainable content, in which case it could not have been applied to the important matter of ascertaining, in some cases at least, whether subsidy was payable to the district council. And if it had a definite and ascertainable meaning in the statute I should find it impossible to say that it could not have the same meaning for the purposes of this town planning condition.

In my opinion, the argument that the condition is void for uncertainty fails and your Lordships are left with the other grounds on which the condition is attacked. It is said that the condition is not related to the permitted development or to the reason given for imposing the condition. Prima facie I should have thought there was a close relationship between the permission to erect a pair of farm-workers' cottages, the condition imposed and the reason for the condition. Under section 14 of the Act the planning authority may grant permission to develop land "subject to such conditions as they think fit." I agree with what my noble and learned friend Lord Denning said in Pyx Granite Co. Ltd. v. Minister of Housing and Local Government²¹ that "conditions, to be valid, must fairly and reasonably relate to the permitted development." The condition here would cover the occupation of the cottages by farm-workers on adjacent land or by such workers when unemployed, and the condition does not, in my opinion, become invalid because some persons may creep under the umbrella of the condition who may not have been contemplated as normal occupants of the houses. Some of the illustrations that were given in argument were, I thought,

21 [1958] 1 Q.B. 554, 572.

somewhat far fetched and unlikely to arise and, as I indicated when dealing with the question of uncertainty, probably not covered by the condition at all. The policy of the planning authority was to protect the green belt by limiting the kind of buildings that should be built there and the kind of occupier that should occupy them and I cannot say that that was not a reasonable and proper exercise of the powers of the planning authority under the Act.

It was said that there was no power to restrict the occupation of the cottages by reference to the personal circumstances of the occupants. This I have covered in what I have already said. There might be personal attributes or circumstances required of the occupants which had no conceivable relevance to planning policy and, if so, such requirements would be bad. But that cannot, in my opinion, be said here. The power to impose conditions is given by the statute and if exercised with due regard to the principles already mentioned cannot be successfully challenged.

I agree also that the point taken that the condition is spent and has now no operative effect must be rejected, for the reasons stated by the Court of Appeal.

I would dismiss the appeal.

LORD DENNING. My Lords, in 1952 Mr. Clark, a farmer at Chalfont St. Giles, sought permission from the Buckinghamshire County Council to build two cottages for farm-workers. His farm was somewhat isolated and he needed the cottages for his men. The Buckinghamshire County Council, as the local planning authority, gave him permission to build a pair of farm-workers' cottages. But the land was in the green belt and the county council were anxious to preserve its character. They wanted to see the cottages occupied by persons connected with the land. So when the county council granted the farmer permission to build the cottages, they attached a condition which was intended to ensure that the cottages were occupied by members of the agricultural population.

In pursuance of this permission the farmer built the cottages, and they were occupied at first by farm-workers. But five years later they were acquired by a property company called Fawcett Properties Ltd. who now seek to remove the condition, saying that it is bad. If this contention is correct it means that the property company can sell or let the cottages to town workers, and this part of Buckinghamshire will see a piece of "sporadic

and isolated residential development" which is the very thing which the county plan condemned.

Now, the whole of the attack on the condition springs from this: when the county council framed their condition limiting the cottages to members of the agricultural population, they took the definition of "agricultural population" straight out of the Housing Acts. They used the self-same words as were used in those statutes. And these words are said by the property company to be so riddled with uncertainty that the condition is void for uncertainty: or alternatively that the condition is so unrelated to any planning purpose that it is ultra vires the planning authority. To support these contentions, Mr. Megarry gave your Lordships a series of examples of difficulties that night arise in the application of the condition.

My Lords, it is a bold suggestion to make that these words, taken as they are from a statute, are void for uncertainty. Mr. Megarry was unable to point to any case where a statute had ever been held void for uncertainty. There are a few cases where a statute has been held void because it is meaningless but none because it is uncertain. Thus in Rex v. King²² a statute was so "inaccurately penned" that the judges thought that no conviction ought to take place upon it. And in Green v. Wood²³ and Salmon v. Duncombe²⁴ a phrase in a statute was rejected because no sensible meaning could be given to it. But when a statute has some meaning, even though it is obscure, or several meanings, even though there is little to choose between them, the courts have to say what meanings the statute is to bear, rather than reject it as a nullity. As Farwell J. put it when speaking of a statute: "Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning, and not to declare them void for uncertainty": see Manchester Ship Canal Co. v. Manchester Racecourse Co.²⁵ Following the guidance of these authorities I should have thought it quite impossible to suggest that the definition of "agricultural population" in the Housing Acts was void for uncertainty.

Mr. Megarry sought to overcome this difficulty by saying that the words in the planning condition were used in a different context from the Housing Acts: and he pointed out, truly enough,

22 (1826) 2 C. & P. 412.

23 (1845) 7 Q.B. 178.

24 (1886) 11 App.Cas. 627, P.C.

25 [1900] 2 Ch. 352, 360-361; 16 T.L.R. 429.

that the planning condition had something of a penal character to it. The breach of it could - at one remove - be made the subject of a criminal prosecution. If the condition was not complied with, the local authority could serve an enforcement notice: and then if the enforcement notice was not complied with, the offender could be brought before the magistrates and fined. The condition was therefore, said Mr. Megarry, to be construed subject to the same rule as a penal statute which prescribes a duty and a penalty for the breach of it. The rule, he said, was that "a man is not to be put in peril upon an ambiguity," see London & North Eastern Railway Co. v. Berriman.²⁶ But it seems to me that there is a short answer to this contention. The rule thus quoted by Mr. Megarry may be a perfectly good reason for construing a penal statute narrowly, but it is no reason at all for holding it to be void. Let alone is it a reason for holding this condition to be void. Mr. Megarry was on stronger ground when he likened the condition to a by-law. It is a local rule laid down by a local authority and enforceable by a penalty. And he said, rightly enough, that a by-law might be held to be invalid not only because it was unreasonable but also because it was uncertain. The only case which he cited for this proposition was Scott v. Pilliner,²⁷ but when examined it turned out that the by-law there was held void, not as being uncertain, but as being unreasonable. I can well understand that a by-law will be held void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning. But if the uncertainty stems only from the fact that the words of the by-law are ambiguous, it is well settled that it must, if possible, be given such a meaning as to make it reasonable and valid, rather than unreasonable and invalid. Lord Wensleydale said so in this House in Reg. v. Saddlers' Co.²⁸: "As in one sense of the word the by-law is good and in the other not, the rule is that it ought to be construed so as to make it valid, not to defeat it."

Finding such slender support from by-laws, Mr. Megarry turned to defeasance clauses and showed truly enough that they could be avoided for uncertainty. He cited Sifton v. Sifton²⁹ for his purpose. But I do not think they advanced his case in the slightest: for it is apparent on the most casual examination that defeasance clauses are treated with peculiar stringency.

26 [1946] A.C. 278, 313-314.

27 [1904] 2 K.B. 855; 20 T.L.R. 662, D.C.

28 (1863) 10 H.L.C. 404, 463.

29 [1938] A.C. 656.

They work a forfeiture: and the courts have insisted that they must be so worded that the persons affected can know with certainly the exact event which will give rise to the forfeiture: see Clayton v. Ramsden.³⁰

Lastly, when he came to his reply on uncertainty, Mr. Megarry mentioned the contract cases such as In re Vince.³¹ But here again he got nowhere: because in cases of contract, as of wills, the courts do not hold the terms void for uncertainty unless it is utterly impossible to put a meaning upon them. The duty of the court is to put a fair meaning on the terms used, and not, as was said in one case, to repose on the easy pillow of saying that the whole is void for uncertainty: see Doe d. Winter v. Perratt³² by Lord Brougham, In re Roberts³³ by Jessel M.R.

Reverting now to the examples given by Mr. Megarry, all of these were, it seemed to me, examples of ambiguity or absurdity and not of uncertainty, or at any rate, not of such uncertainty as makes a condition void. For I am of opinion that a planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results. It is the daily task of the courts to resolve ambiguities of language and to choose between them; and to construe words so as to avoid absurdities or to put up with them. And this applies to conditions in planning permissions as well as to other documents. If you should take any of Mr. Megarry's examples the courts, I am sure, could say whether the case came within the condition or not. They would not have to give up the task in despair.

Next I turn to the question of ultra vires. The local planning authority is empowered to grant permission to develop land "subject to such conditions as they think fit." But this does not mean that they have an uncontrolled discretion to impose whatever conditions they like. In exercising their discretion they must, to paraphrase Lord Greene's words in the Wednesbury case,³⁴ have regard to all relevant considerations and disregard all improper considerations, and they must produce a result which does not offend against common sense; or to repeat my own words in the Pyx case,³⁵ the conditions, to be valid,

30 [1943] A.C. 320, 326, 329; 59 T.L.R. 75; [1943] 1 All E.R. 16, H.L.

31 [1892] 2 Q.B. 478; 8 T.L.R. 334; 67 L.T. 70, C.A.

32 (1843) 6 M. & G. 314, 361, H.L.

33 (1881) 19 Ch.D. 520, 529, C.A.

34 [1948] 1 K.B. 223, 233-234.

35 [1958] 1 Q.B. 554, 572.

must fairly and reasonably relate to the permitted development: or yet again, to borrow the words of Lord Macnaghten and Lord Wrenbury in this House, a public authority which is entrusted with a discretion must act reasonably, see Westminster Corporation v. London & North Western Railway Co.,³⁶ Roberts v. Hopwood³⁷; and I take it that if the authority acts reasonably the result will be reasonable. Out of these various shades of meaning I am not sure that the last is not the best: for it puts planning conditions on much the same footing as by-laws made by a local authority, to which they are so closely akin. Indeed, I see no difference in principle between them. As with by-laws so with planning conditions. The courts can declare them void for unreasonableness but they must remember that they are made by a public representative body in the public interest. When planning conditions are made, as here, so as to maintain the green belt against those who would invade it, they ought to be supported if possible. And credit ought to be given to those who have to administer them, that they will be reasonably administered. see Kruse v. Johnson.³⁸

Such being the tests, how does this condition measure up to them? Mr. Megarry contended that the condition was totally unrelated to any legitimate planning considerations. He put forward the wide proposition that the statute gives the planning authority power to say in what way property is to be used: but no power to say by what persons it is to be used. I cannot subscribe to this proposition for a moment. I should have thought that a planning authority could very reasonably impose a condition that cottages were to be reserved for farm-workers and not let to city dwellers: for this would help to preserve the green belt. Forced from his wide proposition, Mr. Megarry took up the issue on a narrower front. He said that this condition was so expressed that it carried out no conceivable planning policy. For this purpose he resorted again to his examples. He concentrated his main attack on the words "an industry mainly dependent upon agriculture," though he did not neglect the others. If these words are capable of any ascertainable meaning, he said, it is a meaning which is totally unrelated to any planning considerations. Agriculture is defined so widely that it includes the growing of cotton in Egypt, the raising of sheep in

36 [1905] A.C. 426, 430; 21 T.L.R. 686, H.L.

37 [1925] A.C. 578, 613; 41 T.L.R. 436, H.L.

38 [1898] 2 Q.B. 91, 99; 14 T.L.R. 416, D.C.

Australia and the breeding of chinchilla in South America: with the result that the industries which are mainly dependent upon agriculture include the textile industry, the leather industry, the fur industry and many others. If this be right, he said, many London workers will be eligible to occupy the cottages. And take the word "latest." It means that a retired farmer from Australia would be eligible for the cottages equally with a retired furrier from London. But a telephone operator from Chalfont St. Giles would not. How can such distinctions, it is asked, be fairly related to any legitimate planning considerations?

My Lords, I think the true answer to this attack on the condition is that Mr. Megarry is giving it too wide an interpretation altogether. The definition of "agricultural population" in the Housing Acts is limited by the context to the agricultural population "of the district," that is, of the locality. So here the words of the condition are to be read in the light of the reasons which the planning authority are enjoined to give, see Crisp from the Fens Ltd. v. Rutland County Council.³⁹ So read, I am clearly of opinion that the word "agriculture" does not include world-wide agriculture, nor even all-England agriculture, but means agriculture in the locality. And "industry" does not mean far-off industry in London or the big towns. It means local industry. The condition, properly construed with the reason, means, I think, that the occupation of the cottages must be limited to persons who are employed in agriculture in the locality or in a local industry mainly dependent upon agriculture in the locality. The word "occupation" is used to denote the head of the household. The word "latest" to show that he may stay on in the cottages after his retirement. The word "dependants" to show that he may have with him his wife and family and anyone else dependent on him. So construed it seems to me that the condition fairly and reasonably relates to the permitted development. Its effect is to ensure that the cottages will be occupied by persons who will help to maintain the normal life and character of this part of the green belt and not by outsiders to use as a dormitory. The cottages are for farm-workers or for men who work at the smithy shoeing horses, at the mill grinding the corn, or at the saw mills cutting up wood; or in modern times at the milk depot bottling the milk or at the repair shop mending the tractors; and so forth. They are not for people who go up and down to London every day.

39 (1950) 1 P. & C.R. 48, C.A.

There is only one further point. Mr. Megarry suggested that this condition was spent. It was satisfied, he said, as soon as the first occupant was installed in compliance with it. The only alternative, he claimed, was to hold that the condition applied in perpetuity: and this was an unreasonable construction seeing that the condition could not be modified. If this contention were correct, it would provide an easy escape from planning control, for the first occupant might only stay for a week or a fortnight. In my opinion this contention is not correct. The condition is a continuing condition and applies to the land indefinitely. I am not prepared, as at present advised, to accept the suggestion that a planning condition can never be modified. When conditions are imposed limiting the purposes for which the property can be used, and afterwards fresh circumstances arise in which the owner seeks to use it for different purposes, he may well be able to apply for permission under section 12 on the ground that he wishes to make a "material change in the use."

In my opinion, therefore, the challenge to this planning condition should fail and this appeal should be dismissed.

LORD JENKINS. My Lords, this appeal concerns the validity of a condition imposed by the respondent council, as local planning authority under the Town and Country Planning Act, 1947, in granting permission to the appellant company's predecessor in title, Mr. Donald Decimus Clark, to erect a pair of farm-workers' cottages on freehold land belonging to him at Dibden Hill Lane, Chalfont St. Giles in the County of Buckinghamshire.

The permission in question was granted on December 5, 1952. At that date the council had (in February 1950) published a provisional document described as an "Outline Development Plan for Buckinghamshire," but had not as yet submitted to the Minister the development plan called for by section 5 of the Act. It was nevertheless incumbent on Mr. Clark (under section 12) to obtain the permission of the council (under section 13 (1) (b)) for the development constituted by the erection of the proposed pair of cottages.

The section of the Act upon which the present dispute mainly turns is section 14 (1). [His Lordship read the subsection and continued:] By article 5 (9) of the Town and Country Planning General Development order, 1950 (S.I. 1950, No. 728) which was made under powers contained in the Act: "Every such notice [of the local planning authority's decision] shall be in

writing and (a) in the case of an application for planning permission or approval, where the local planning authority decide to grant such permission or approval subject to conditions or to refuse it, they shall state their reasons in writing. ..." Reference should also be made to section 36. [His Lordship read the section and continued:]

It should be observed that no such directions as are mentioned in section 36 had been given by the Minister at the material time, but that the "Outline Development Plan" to which I have already referred recognised that certain parts of the county, including the site of the proposed cottages, should form part of the "Metropolitan Green Belt" and should be preserved against building development so as to form a barrier against the further outward spread of London.

The combined effect of sections 14 (1) and 36 in the circumstances of the present case therefore was that in dealing with Mr. Clark's application the council were to have regard to the provisions which in their opinion would be required to be included in the development plan for securing the proper planning of the area (such opinion having been to some extent indicated in their "Outline Development Plan"), and to any other material considerations.

At this point I should mention, to show I have not forgotten it, the circumstance that Mr. Clark had on July 22, 1952, obtained permission from the council for a similar development on a different site, but had abandoned this project owing to some difficulty as to his rights in regard to building upon it, and had substituted as the site of his proposed development the land to which the permission now in question relates. Notwithstanding some argument to the contrary, I am of opinion that differences in the terms of the abortive permission of July 22, 1952, and the effective permission of December 5, 1952, are for present purposes irrelevant, and that your Lordships are concerned only with the terms of the latter document.

The effective permission of December 5, 1952, was signed by the clerk to the Amersham Rural District Council as agents for the county council and omitting formal parts was in these terms. In pursuance of their powers under the above-mentioned Act and Order the Bucks County Council as Local Planning Authority hereby permit erection of pair of farm-worker's cottages at Dibden Hill Lane, Chalfont St. Giles in accordance with your application dated November 22, 1952, and the plans and particulars accompanying it subject to the following

conditions: (1) The occupation of the houses shall be limited to persons whose employment or latest employment is or was employment in agriculture as defined by section 119 (1) of the Town and Country Planning Act, 1947, or in forestry, or in an industry mainly dependent upon agriculture and including also the dependants of such persons as aforesaid. The reasons for imposing the above conditions are: (1) Because the council would not be prepared to permit the erection of dwelling-houses on this site unconnected with the use of the adjoining land for agriculture or similar purposes."

The condition to which the permission was expressed to be subject was duly registered in the register of local land charges.

For some time after the erection of the cottages they were occupied by farm labourers whose employment undeniably complied with the terms of the condition.

On December 31, 1956, the appellant company bought the freehold interest in the cottages, with vacant possession, from Mr. Clark's mortgagees, admittedly buying with notice of the condition as registered.

The cottages being vacant, the company wanted to let them to persons not qualified as occupants by the terms of the condition. The council refused to allow this, and after considerable correspondence the present action was brought by the appellant company as plaintiffs against the council as defendants, claiming substantially as follows: (1) A declaration that the condition was ultra vires or alternatively void for uncertainty, and that the cottages might be lawfully occupied without regard to the nature of the employment of the occupants; (2) alternatively, a declaration that the condition had been fulfilled and that its force was now spent, with similar results; and (3) rectification of the local land charges register.

The case was heard by Roxburgh J., who on October 29, 1958, gave judgment for the company on the ground that the condition was "ultra vires as not fairly or reasonably relating to any local planning considerations."⁴⁰ That aspect of the ultra vires argument may be called the "narrow" ultra vires claim, turning as it does on the terms and apparent scope of the particular condition in question. An alternative argument on ultra vires, which may be called the "broad" ultra vires claim, proceeds on the more general ground that the council had no power the the Act to impose a condition restricting the occupation of premises

40 [1958] 1 W.L.R. 1161, 1170; [1958] 3 All E.R. 521.

according to the personal circumstances of the occupant. The learned judge rejected the "broad" ultra vires claim, and reached no conclusion on the submission to the effect that the condition had been fulfilled and its force was now spent, or on the submission to the effect that the condition was void for uncertainty, his decision on the "narrow" ultra vires claim making it unnecessary for him to do so.

The Court of Appeal (Lord Evershed M.R., Romer and Holroyd Pearce L.JJ.) agreed with the judge in rejecting the "broad" ultra vires claim, and also rejected the claim to the effect that the condition was spent, with which the learned judge had not dealt, and which had not been seriously pressed before them. I find myself in complete agreement with the conclusions expressed by both courts on the former, and by the Court of Appeal on the latter, of these two points, and no useful purpose would be served by discussing them further.

There remain the more difficult matters of the "narrow" ultra vires claim and the claim of uncertainty, both of which were rejected by the Court of Appeal, who accordingly by the judgment now under appeal (delivered on April 27, 1959) discharged the judgment of Roxburgh J. and dismissed the action. The considerations advanced in support of these two claims to some extent overlap.

The law relating to the "narrow" ultra vires claim is not in dispute, and may be thus summarised:

(1) Under section 14 (1) of the Act of 1947 the council as local planning authority were empowered to grant permission for the proposed development either unconditionally or subject to such conditions as they thought fit or might refuse permission, and under section 36 they were enjoined in the exercise of their functions to have regard to the provisions which in their opinion would be required to be included in the development plan for securing the proper planning of the area.

(2) The power to impose conditions though expressed in language apt to confer an absolute discretion on a local planning authority to impose any condition of any kind they may think fit is, however, conferred as an aid to the performance of the functions assigned to them by the Act as the local planning authority thereby constituted for the area in question. Accordingly the power must be construed as limited to the imposition of conditions with respect to matters relevant, or reasonably capable of being regarded as relevant, to the implementation of planning policy. This accords with the concluding passage in section 36

above referred to. As was said by Lord Denning in Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government⁴¹: "The principles to be applied are not, I think, in doubt. Although the planning authorities are given very wide powers to impose 'such conditions as they think fit,' nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest."

(3) This does not mean that the wisdom or merits of a condition imposed in any given case can be made the subject of an appeal to the court at the instance of a person objecting to the condition. See Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation,⁴² the effect of which is for the present purpose sufficiently indicated in the following passage from the headnote: "Held, that the local authority had not acted unreasonably or ultra vires in imposing the condition. In considering whether an authority having so unlimited a power has acted unreasonably, the court is only entitled to investigate the action of the authority with a view to seeing if it has taken into account any matters that ought not to be or disregarded matters that ought to be taken into account. The court cannot interfere as an appellate authority to override a decision of such an authority, but only as a judicial authority concerned to see whether it has contravened the law by acting in excess of its power."

While fully accepting the principle of the Wednesbury case,⁴³ Mr. Megarry (for the appellants) submits that in the present case the persons to whom the condition purports to limit the occupation of the two houses are defined in such comprehensive terms that on the face of it the condition (though it cannot be said to be entirely unrelated to any planning considerations) bears as a whole no fair or reasonable relation to any conceivable planning, policy and is therefore beyond the powers of the local planning authority, and open to review by the court under the limited jurisdiction described in the Wednesbury case.⁴³ Moreover, the terms of the condition do not accord with the reason given for imposing it, or in other words are not related to the respondents own statement of their planning, policy as set forth in the reason.

41 [1958] 1 Q.B. 554, 572.

42 [1948] 1 K.B. 223.

43 [1948] 1 K.B. 223.

The features of the condition mainly relied on by Mr. Megarry in support of this branch of his argument for the appellants were these. The condition includes amongst the persons eligible to occupy the cottages persons whose latest employment was employment in agriculture as defined in section 119 (1) of the Act. There is no geographical limit as to the place of such latest employment. Accordingly the condition would permit occupation of either cottage by (e.g.) a retired sheep farmer from New Zealand. Occupation by such a person (said Mr. Megarry) could have no possible relevance to the use of the green belt in the respondents' area, or anywhere else, for agricultural purposes. Again, the condition permits occupation by persons currently employed in agriculture, with no geographical limit as to the place of such employment. This means that an agricultural labourer could be let into occupation of either cottage notwithstanding that his place of work was many miles away in a different county, so that his activities could have no relevance to the use of the green belt in the respondents' area for agricultural purposes. Mr. Megarry also contended that the definition of "agriculture" in section 119 (1) of the Act was wide enough to include (e.g.) an assistant in a boot-shop in a town in any part of the country on the ground that "agriculture" as so defined includes the production of skins, that leather is made from skins, and that bootmaking is an industry mainly dependent on leather. He submitted that the condition would allow occupation by the supposed boot-shop assistant, although in this and other imaginary cases of persons employed in industries mainly dependent upon agriculture the employment of the individuals concerned could have no possible relevance to the use for agricultural purposes of the green belt in the respondents' area. This last category of hypothetical forms of employment was also strongly relied on by Mr. Megarry in support of the claim based on uncertainty. As I have said, the two arguments to some extent overlap, and Mr. Megarry gave us a large number of examples of varying degrees of probability or improbability in support of one or other or both of them.

I cannot accept Mr. Megarry's argument, or Roxburgh J.'s conclusion, on the narrow ultra vires claim.

As I understand the position, it would have been open to the council as local planning authority simply to grant unconditional permission for the erection of the two cottages, relying on their situation and character as sufficient for practical purposes to ensure that they would in fact be occupied by agricultural

workers or persons engaged in kindred employments in the locality. If the council had taken that course, so far as I can see, they would clearly have been acting within their powers. But, as stated in the reason, the council's policy was "not to permit the erection of dwelling-houses" on the site in question "unconnected with the use of the adjoining land for agriculture or similar purposes." They therefore thought it expedient to impose an express condition designed to implement that policy, and accordingly did impose the condition now said to be ultra vires. The question, then, is whether (apart from the question of uncertainty, which at this stage I ignore) this condition with all its faults could fairly and reasonably be held to make it more likely that the policy stated in the reason would be implemented than it would have been if the council had simply given unconditional permission for the erection of the two cottages. In my opinion the answer to that question must clearly be in the affirmative, and if I am right in that opinion it follows in my judgment that the narrow ultra vires claim must fail. The condition, no doubt, fell short of perfection, but so far as it went it was designed to carry out, and in practice might reasonably be expected to carry out, the respondents' planning policy. The various imaginary cases in which the council's object might be defeated without breach of the condition loomed large in argument but appeared to me to be for the most part of little importance from a practical point of view, judged, that is to say, by reference to what would be likely to happen, as distinct from what might conceivably happen. Be that as it may, so far as these examples demonstrate that the condition might in various hypothetical cases fail to achieve its object, they merely show that the condition was imperfect, and not that it was ultra vires.

I may now turn to the argument that the condition was void for uncertainty, which seems to me to be the difficult point in the case. It is said that the condition is so imperfectly expressed and defines the persons to whom the occupation of the cottages is to be limited with such lack of precision that many cases might occur in which no owner of the cottages could tell, and no court could decide, whether by letting a given person into, or permitting him to remain in, occupation, the owner would be committing a breach of the condition.

Mr. Megarry pointed out the penal consequences which would or might ensue from such a breach under the provisions of

sections 23, and 24 of the Act, and placed in the forefront of his argument the principle that "a man is not to be put in peril upon an ambiguity," see per Lord Simonds in London & North Eastern Railway Co. v. Berriman.⁴⁴ He pointed out further the difficulties which in his submission would confront the owner and the occupier in the event of the latter having been let into occupation while pursuing some plainly agricultural employment, but thereafter changing to a different employment with respect to which it was impossible to determine whether it did or did not exclude the occupier from the permitted range.

But it is first necessary to consider whether the condition ought in all the circumstances of the case to be held uncertain to the point of invalidity. If it was, then the present appeal must succeed. If it was not, then it cannot be invalidated on the ground that in certain hypothetical cases it might be fraught with untoward consequences. I will read it again: "The occupation of the houses shall be limited to persons whose employment or latest employment is or was employment in agriculture as defined by section 119 (1) of the Town and Country Planning Act, 1947, or in forestry, or in an industry mainly dependent upon agriculture and including also the dependants of such persons as aforesaid."

Mr. Megarry claimed that this language is "riddled with uncertainty." He contended that the word "occupation" was in itself an expression of doubtful import and also criticised reference to "dependants" as lacking in precision. These two points, though not without force, were in my view rightly rejected by the Court of Appeal and I say no more about them, except to observe that this part of Mr. Megarry's argument in volves the proposition that a simple condition to the effect that the occupation of the cottages was to be limited to persons employed in agriculture, uncomplicated by the other provisions included in the condition, would have been void for uncertainty - a proposition which, for my part, I find impossible of acceptance. I have already mentioned Mr. Megarry's point as to the possibility of an occupier changing his employment after being let into occupation on the strength of undeniable employment in agriculture, but this, as I think, goes to the consequences of uncertainty rather than the question whether the condition ought to be held void for uncertainty. Mr Megarry also (as I understood him) instanced the case of a person who divided his time

44 [1946] A.C. 278, 313-314.

with mathematical equality between agriculture and some other employment. But this does no more than indicate a possible (and highly improbable) case not provided for by the condition, and I cannot regard the remote possibility of such a casus omissus as a ground for holding the condition void for uncertainty.

But Mr. Megarry's main attack was upon the word "employment ... in an industry mainly dependent upon agriculture," the expression "agriculture" being defined in the condition by reference to the definition of that expression in section 119 (1) of the Act of 1947. Mr. Megarry contended that no certain meaning could be attached to the words "dependent upon agriculture," and a fortiori to the words "mainly dependent upon agriculture."

These words considered in vacuo are no doubt capable of a very wide interpretation. They might be said on the one hand to include any industry depending on agriculture for the raw materials used in the trade or manufacture which it carries on, and on the other hand also to include any industry which provides goods (e.g., fertilisers and agricultural machinery) required to enable agriculture to be carried on, and depends on persons engaged in agriculture as customers for such goods. Moreover, the former construction might be extended to include not merely raw materials received from agriculture in their original state, but any materials used in the industry concerned at no matter how many removes from agriculture, so long as they could be shown to have been in origin derived from agriculture. It could thus be plausibly claimed that the imaginary boot-shop assistant referred to in argument would be employed in an industry dependent on agriculture, because under section 119 (1) agriculture includes the keeping of livestock for the production of skins, leather is made of skins and boots are made of leather. The same could be said (with the substitution of wool for skins) of the manufacture and sale of woollen garments and I do not know how many other industrial activities.

By way of reductio ad absurdum my noble and learned friend, Lord Keith, suggested in the course of the argument that all industry might be said to be dependent upon agriculture, inasmuch as no industry could be carried on without food.

Speaking for myself, I confess I have been attracted by the view that one aspect of the argument on uncertainty could be met by construing the words "dependent upon agriculture" in close conjunction with the statutory definition of agriculture expressly adopted by the condition. That definition defines

agriculture as including a number of activities, e.g., "horticulture, fruit growing" ... "the breeding and keeping of livestock" ... "the use of land as grazing land meadow land osier land market gardens and nursery grounds ..." and so forth. True it is that the definition is not exhaustive, but that only means that there are or may be other activities proper to be classed as "agriculture." On this view it would follow that by the expression "an industry ... dependent upon agriculture" the condition means an industry which depends on some one or more of these activities for its raw materials as distinct from an industry which depends on people engaged in agriculture as customers for the agricultural necessaries which it supplies, e.g., in the form of agricultural machinery or fertilisers. Thus a fruit-canning factory would be carrying on an industry dependent on agriculture because it would depend for its supplies of fruit on agriculture in the shape of the agricultural activity of "fruit growing" to which the definition refers. On the other hand a company selling fertilisers to farmers would not be carrying on an industry dependent on agriculture within the meaning of the condition, for the definition of agriculture does not expressly include and cannot be regarded as including by implication, the provision of fertilisers for agricultural use.

In short, I am tempted to hold that in the examples given the hypothetical fruit-canning factory would for the purposes of the condition be dependent on agriculture (i.e., fruit-growing), while agriculture (as represented by the farmers concerned) would be dependent on the hypothetical company for its supplies of fertiliser.

This reasoning, if accepted, would dispose of so much of the argument on uncertainty as turns on the view that an industry is dependent on agriculture within the meaning of the condition if the demand for the goods or services which it supplies depends on the continuation of agricultural activities. It must, however, be admitted that the words of the condition literally read are wide enough to include dependency in this sense, and for the purposes of this case I am content to assume, without deciding, that they do include it.

There remains the argument, already touched upon, that no sure line can be drawn to enable the point at which dependence on agriculture ceases in a case in which a particular agricultural product after leaving the farm is put (perhaps by several stages) into a different state, in which it is sold or, it may be, subjected to some further manufacturing process. The examples of leather

boots and woollen garments have already been mentioned, but many others could be devised. The miller depends on agriculture (i.e., wheat-growing) for making flour. The baker buys flour from the miller and makes it into bread. Is the bread-making industry, as carried on by the baker, dependent on agriculture within the meaning of the condition? A jam manufacturer is dependent on agriculture (i.e., fruit-growing) for the fruit he makes into jam. Is the business of a grocer who buys jam from the manufacturer and sells it by retail dependent quoad the jam on agriculture within the meaning of the condition? one may add the case of a tailor making suits out of cloth which originated as sheep's wool, and has since passed through many processes. Is the tailors' business dependent on agriculture within the meaning of the condition?

I think the answer is that the dependence on agriculture contemplated by the condition is a direct dependence. The condition is capable of that meaning, and if construed as including any degree of dependence, however remote or indirect, it would lead to manifest absurdity. I would say that in the examples given the miller and the jam manufacturer would be dependent on agriculture, but that the baker and the grocer would be dependent not on agriculture but on the miller and the jam maker respectively. Each actual case would no doubt turn on its own facts, but I see no reason for supposing that if the question ever arose in practice it would be incapable of decision on the lines I have indicated.

As to the qualification of the word "dependent" by the word "mainly" in the condition, I do not think it gives rise to any real difficulty. I think that, as Mr. MacKenna (for the respondents) submitted, the question whether a given industry was "mainly" dependent on agriculture could legitimately be resolved by looking at the particular manifestation of that industry in which the potential occupier was employed, and determining by reference to that particular example whether the industry concerned was mainly so dependent. Approached in that way, I cannot believe that the court would find it impossible to decide whether the use of the word "mainly" was warranted by the facts.

As to the argument to the effect that in view of the absence from the condition of any geographical limit as to the place in which a person must be employed, or must have been employed, in agriculture, or in an industry mainly dependent upon agriculture,

in order to be eligible to occupy one of the cottages, a retired sheep farmer from New Zealand, or a farm labourer whose place of work was many miles away in a different county, would be eligible for that purpose, I do not see how this submission, if accepted, could assist the claim on uncertainty. Moreover, I find it impossible to accept. I think the condition must be construed as relating to employment in agriculture, or in an industry mainly dependent upon agriculture, in the area falling within the jurisdiction of the county council as local planning authority, and moreover (I am disposed to think but need not now decide) in the part of that area which was to form part of the green belt. The object which the county council had in view was that if the cottages were built in the green belt contrary to the general rule against building there, they were to be used for the purpose of providing living accommodation for persons employed or last employed in agriculture, or in an industry mainly dependent thereon, in the green belt. I think the council's much criticised reasons support this view.

It remains to consider whether, if and so far as the condition contains any element of uncertainty, the degree of uncertainty involved is sufficient in all the circumstances of the case to justify your Lordships in holding the condition void.

In determining this question it is right to remember that this is not a case comparable to that of a condition subsequent which, if valid, would create a forfeiture of a beneficial interest under a settlement or will, or that of a trust in favour of a class of persons so imperfectly described as to make it impossible to ascertain its composition.

In cases of the former description the condition is construed with the utmost strictness and, to be valid, "must be such that the court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine": see Sifton v. Sifton,⁴⁵ perLord Romer citing Lord Cranworth in Clavering v. Ellison.⁴⁶ See also Clayton v. Ramsden⁴⁷: "The modern idea, perhaps, is that the beneficiary should be in a position to know what he is to do or not to do if he is to avoid a forfeiture," per Lord Wright. In cases of the latter description it is obviously impossible to carry out the trust if the members of the class cannot be ascertained, and the result is no different if the trust is for such

45 [1938] A.C. 656, 670.

46 (1859) 7 H.L.C. 707, 725.

47 [1943] A.C. 320, 329.

members of an unascertainable class as the trustees may select: see Inland Revenue Commissioners v. Broadway Cottages Trust.⁴⁸ So far as cases of these kinds have any bearing at all on the present case, it seems to me that In re Gestetner⁴⁹ is nearer in point. In that case it was held - I quote from the headnote, "that, where a power does not impose a trust on the donor's conscience, it is not necessary to know all the objects to appoint to one of them, and that a power may be good although in favour of an indefinite class."

In the present case there is no question of a trust for an undefined class, or of a condition operating, if valid, to bring about the forfeiture of a beneficiary's interest. It clearly cannot be necessary to the validity of the condition here in question that it should be possible to identify all the persons who, according to the terms of the condition, are at any given time eligible in point of employment or latest employment to be let into occupation of the cottages. The owner is under no obligation to let anyone into occupation, and, in particular, is under no obligation to any person who satisfies the condition to let such person into occupation on that account. If the owner was indeed subject to such an obligation, it might well be necessary to the validity of the condition that it should be possible to decide with certainty as regards each and every claimant, whether he satisfied the condition or not. But as the case stands, the owner's obligation is merely not to allow occupation by any person who does not fall within the limit as regards occupation imposed by the condition. That means that it behoves the owner to satisfy himself that any proposed occupier does fall within the prescribed limit before he lets him into occupation. If, on investigation, the owner finds that the proposed occupier is clearly within the prescribed limit he can, if he chooses, let him into occupation. If, on the other hand, the owner finds that the proposed occupier is clearly outside the prescribed limit he must, in order to comply with the condition, refuse the application. Again, if it appears doubtful whether the proposed occupier does or does not fall within the prescribed limit, the owner will be well advised to refuse, and will be perfectly free to do so. Such being the position of the owner, I see no reason why the possible occurrence of doubtful cases, which he would be free to reject, should be held to invalidate the condition so as to entitle him to let into possession

48 [1955] Ch. 20; [1954] 3 W.L.R. 438; [1954] 3 All E.R. 120, C.A.

49 [1953] Ch. 672; [1953] 2 W.L.R. 1033; [1953] 1 All E.R. 1150.

persons clearly outside the permitted limit. The question should perhaps be regarded to some extent as one of degree. The above line of argument would, of course, have no application to a condition framed in such terms that it would be ex facie impossible to attribute satisfaction of it to anyone, for in such a case the result would be to preclude the owner from letting altogether. But where, as here, the character and situation of the cottages are such as to make it highly improbable that there will be any lack of would-be occupants who do demonstrably satisfy the condition (e.g., as farm-workers, in actual employment as such, on neighbouring farms in the green belt, with or without wives and children (the latter, if any, under 21)), I think it would be unreasonable to hold the condition invalid on account of the theoretically possible emergence of cases in which the eligibility of the would-be occupants, whom, be it remembered, the owner would be under no obligation to accept, might be open to doubt.

As regards the hypothetical case, on which Mr. Megarry placed much reliance, of the occupant who is qualified when he goes in but later becomes disqualified by a change in his employment, or through the industry in which he is employed ceasing to be mainly dependent on agriculture, I think the owner would be substantially protected by granting no more than weekly tenancies, and perhaps also making the tenancy expressly subject to the condition, and requiring the tenant to report any change in his employment. Having done this, I think the owner would have done all that in him lay to comply with the condition, apart from serving notice to quit and taking proceedings in ejectment if and when he deemed it necessary to do so, or was required to do so by an enforcement notice. If ejectment proceedings were precluded by some other enactment he would not be to blame. In these circumstances I can attach no great importance to the possibility of penal consequences. The opening words of the condition - "The occupation of the houses shall be limited" - are not, in my view, to be construed as obliging the owner to do the impossible.

I would add that, as a matter of common sense, if there is any room for such in a case of this kind, timely consultation between the owner and the council would probably suffice to resolve most difficulties.

In conclusion, I would observe that in common with the Court of Appeal and the majority of your Lordships, I attach great importance to the circumstance that the language of the condition

from the words "persons whose employment" down to the words "the dependants of such person as aforesaid" (omitting the words from "as defined" down to "or in forestry") are borrowed ipsissimis verbis from the definition of the expression "agricultural population" contained in section 34 (2) of the Housing Act, 1930, which definition is reproduced in section 115 (2) of the Housing Act, 1936, and section 114 (5) of the Housing Act, 1957. Having regard to the close similarity between the language of the condition now under consideration and that of the Housing Act definition to which I have just referred, I think it would be very difficult for your Lordships to hold the condition void for uncertainty. To do that it would be necessary (in effect) to overrule the implied opinion of the leglislature that the definition in section 34 (2) of the Housing Act, 1930, was sufficiently precise and certain to make it possible to determine by reference to that definition the question whether any given house was required for the accommodation of the agricultural population of the district so as to rank for subsidy under the same subsection. The context in which the definition in section 34 (2) occurs is, of course, different from that of the condition, and it occurs in an Act of Parliament while the condition does not. The difference in context is not, I think, such as to be material for the present purpose, and while your Lordships are not bound to accept the validity of the condition as if it was a statutory provision, the definition in section 34 (2) does provide the language of the condition with statutory sanction which your Lordships should be slow to reject. For these reasons, although I confess that I have found the ease a difficult one, I would dismiss this appeal.

Solicitors: Phillips & Co.; Sharpe, Pritchard & Co. for R. E. Millard, Aylesbury.

F. C.