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RONALD CARTWRIGHT v. STAFFORDSHIRE MOORLANDS DISTRICT COUNCIL [1996] EWCA Civ 1122 (5th December, 1996)
IN
THE SUPREME COURT OF JUDICATURE
LTA 96/5991/E
COURT
OF APPEAL (CIVIL DIVISION
)
ON
APPEAL FROM THE QUEEN'S BENCH DIVISION
STOKE
ON TRENT DISTRICT REGISTRY
Royal
Courts of Justice
Strand
London
WC2
Thursday,
5th December 1996
B e f o r e :
LORD
JUSTICE HIRST
- - - - - - - -
RONALD
CARTWRIGHT
- v -
STAFFORDSHIRE
MOORLANDS DISTRICT COUNCIL
- - - - - - - -
(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-831 3183/0171-404 1400
Fax No: 0171-404 1424
Official Shorthand Writers to the Court)
- - - - - - - -
THE
APPLICANT'S WIFE, MRS. CARTWRIGHT
appeared on behalf of the Applicant.
- - - - - - - -
J
U D G M E N T
(As
approved by the Court)
- - - - - - - -
Crown Copyright
LORD
JUSTICE HIRST: This is an application by the plaintiff, Mr. Ronald Cartwright,
who has been represented here, as he has on other occasions, by Mrs Cartwright
-- sadly, he is unable to attend because of ill health -- for leave to appeal
against the order made by Mr. Wolton QC sitting as a deputy judge of the High
Court in Stoke on Trent on 28th March 1996 dismissing the plaintiff's appeal
from the order of District Judge Ilsley dated 17th January 1996, whereby the
District Judge had struck out the statement of claim on the ground that it was
vexatious and an abuse of the process of the court.
The
main issue in the court below was whether the action was an abuse of process
because the questions raised therein were res judicata or because there was an
issue estoppel.
The
present proceedings were issued on 2nd March 1984 with a statement of claim
indorsed on the writ, in which the plaintiff sought damages amounting to
£3,488,000 from the defendants on the basis of their failure to issue a
site licence in respect of a property of the plaintiffs. The pleading is as
follows:- "The plaintiff claims for loss of development rights of the caravan
site on the Sharpcliffe Estate [in the sum I have just mentioned]. On 11th May
1956 planning permission for a caravan site was given by the defendant's
predecessors in title, the Cheadle Rural District Council. In 1960 the Caravan
Sites and Control of Development Act required all caravan sites to be licensed,
whereon the site licence for Sharpcliffe Estate was applied for. Agreement was
reached between the plaintiff and the Cheadle Rural District Council that the
issue of a site licence should be deferred until the plaintiff was ready to
proceed with the development. On 27th January 1973 the Caravan Company Limited
submitted plans on behalf of the plaintiff and the site licence was requested.
Delay and/or refusal by the defendants caused the developers to lose interest
in the site. On 19th April 1983, at the request of the defendants, the plans
were resubmitted with a further request for the site licence. The defendants
have failed to issue the site licence and are in breach of their statutory duty
to do so, thereby causing a loss of ten years' income from rental in the sum of
£1,341,600."
Based
on an annual return of £218,000, the plaintiff claims an overall loss on
development of £3,488,000.
The
basis of the striking out application was that the matter was res judicata in
another action in 1984, the reference of which is 1984/S/247, where the present
defendants as plaintiffs obtained declarations against the present plaintiffs
as defendants going to the self-same issues as in the present case. That
declaration, which was made by Judge Blennerhassett sitting as a deputy High
Court judge at Stafford, and which, as will appear in more detail later in this
judgment, was upheld by the Court of Appeal, was as follows:
"1.
It is declared that the planning permission granted on 11th May 1956 by
Cheadle Rural District Council for the use of land as a caravan site at
Sharpcliffe Hall ... was in respect of no more than 30 caravans on the area of
land shown coloured pink . . . and the permission, the plan and the letter
should be read together.
2.
It is declared that no valid application for a caravan site licence was made
during the period of validity of the said planning permission of 11th May 1996.
3.
It is declared that no development of the site referred to in the said
permission of 11th May 1956 was begun before 1st April 1974 and that the said
planning permission ceased to have effect from that date."
That
was a plain declaration, firstly, that no valid application for a caravan site
licence was made during the period of validity of the planning permission, i.e.
between 1956 and April 1974, and, secondly, that as from 1st April 1974, the
1956 planning permission ceased to have effect. Deputy Judge Wolton held that
this declaration resulted in a res judicata of the issues presently raised in
this action in which an application for leave to appeal is brought.
The
judgment of Judge Blennerhassett is before the court, as is the judgment of the
Court of Appeal, in which his judgment was upheld by Purchas L.J., Mustill L.J.
and Butler-Sloss L.J. It is convenient to identify the relevant passages of
Judge Blennerhassett's judgment and of his order via the Court of Appeal
judgment which was delivered by Purchas L.J., Mustill LJ and Butler-Sloss LJ
agreeing with that judgment. I start at page 21 where Purchas L.J. embarks
upon a section of his judgment under the heading
"Current
Litigation."
I regard this passage as important, as indeed are a number of other passages
which I shall read. The significance of this passage is that there is copious
reference to the present proceedings which had by then already been started,
and which are numbered 319. Just to clarify the numbers, the Judge
Blennerhassett/Court of Appeal action in which the council were plaintiffs is
numbered 247, and the present action in which Mr. Cartwright is plaintiff and
the district council are defendants is numbered 319. I shall interpose the
numbers to make it clear when it is convenient to do so. This is what Purchas
L.J. said:
"It
is now possible to come to the present situation. On 2nd March 1984 Mr.
Cartwright issued a writ claiming damages from Moorlands caused by an alleged
failure on their part to carry out their statutory functions under the planning
and caravans legislation [that is 319 of the present action]. Independently, on
5th March, Moorlands issued and served on each of the appellants writs seeking,
inter alia, the declarations which are the subject matter of this appeal [that
is 247]. Mr. Cartwright's defence [in 247] was delivered on 6th April 1984.
Mrs Cartwright's defence [247] was delivered on 25th April 1984. In the
meanwhile Mr. Cartwright had issued a summons dated 17th April 1984 seeking an
order striking out Moorlands' claim on the grounds that Moorlands were not
´an aggrieved party' and therefore had no locus standi. Alternatively, he
alleged that the action was frivolous, vexatious and an abuse of the process
of the court. This application was dismissed by District Registrar Dunne... His
appeal . . . was dismissed by McCowan J on 21st January 1985. Although Mrs
Cartwright had at this time not challenged the issue of proceedings by the
district council she attended the hearing of her husband's appeal and during
the course of the presentation of the appeal by her husband with the consent of
McCowan J, she appears to have taken over the argument of her husband's appeal.
McCowan J had already indicated that he was not impressed by the locus standi
point made by Mr. Cartwright; but he listened to a further argument presented
by Mrs. Cartwright. Mrs. Cartwright argued that it was too late for Moorlands
to seek a declaratory judgment and that they should have long since proceeded
under the powers granted to them under the 1971 Act."
That
is exactly the point that she is making before me this morning:
"In
any event" -- this is a very interesting sentence -- "she submitted that,
instead of initiating their own action, [247] they should have counterclaimed
in the action brought by Mr. Cartwright [319]. McCowan J referred to the
letter from Mrs Cartwright, which I have already cited in this judgment, and
commented upon the fact that in bringing these proceedings Moorlands were
acting upon a suggestion made by Mrs Cartwright. He summarised his view thus:
´I
am not in any way surprised that the plaintiffs have come to the conclusion in
the end that only by an action through declaration can it be resolved.'"
There
was then abundant reference to 319 in the Court of Appeal judgment, including
the astonishing fact that Mrs Cartwright at that stage was saying that the
council should have counterclaimed in 319. It is therefore almost beyond
belief that in the notice of appeal, paragraph five, it is said that:
"There
is nothing in any of the documents to couple the two actions. In fact No. 247
was dealt with without any reference to this action. The transcript will show
there is no reference in that action to this action No. 319."
That
is palpably untrue. A little later in the judgment, Purchas L.J. goes on:
"Mrs
Cartwright has continued to argue both the position of locus standi and, in the
alternative, the merits of the planning issues" -- that is the very point she
is taking here -- "in support of her appeal. There is one matter of procedural
history to which I should refer before coming to deal with the separate issues
raised. Although Moorlands did not counterclaim in the action for damages
brought by Mr. Cartwright [319] for the obvious reason that if they did so Mrs.
Cartwright would have had to be joined as a third party defendant to the
counterclaim, they did apply to consolidate their action and the action brought
by Mr. Cartwright. This application was resisted by the Cartwrights.
That
is another explicit reference to 319 and the other astonishing feature that the
two actions could have been consolidated years ago, as the council requested,
but that request was unsuccessful because it was opposed by the Cartwrights.
I
now go on to page 28C where the issues presently under consideration are
considered by the Court of Appeal. This is Purchas L.J.:
"It
remains only, on this aspect of the appeal, to consider the impact of the Town
and Country Planning Act 1968 . . . and Schedule 24 to the 1971 Act upon the
1956 permission. Mrs Cartwright deployed the same submissions in this court as
she made before His Honour Judge Blennerhassett, namely that as section 41 of
the 1971 Act which provided that planning permissions should be subject to a
five year limit unless implemented within that period and as Schedule 24,
paragraph 18, provided that this section should not apply to permissions
granted before 1st April 1969, therefore there was no time limit to be implied
in the 1956 permission. This submission by Mrs Cartwright is, I regret to have
to say, entirely misconceived. The effect of the 1968 Act and Schedule 24,
paragraph 19, to the 1971 Act is to import into every planning permission
granted . . . a term that, if the development to which the provision related
was not implemented before 1st April 1974, the planning permission would lapse."
Then
a very important section:
"The
1956 permission provided that no development should be commenced until details
of the proposed layout of the site had been submitted to and approved by the
local planning authority. After a careful review of the evidence both
documentary and oral given before him, the judge came to the following
conclusion as to whether adequate plans had been submitted as was alleged by
the Cartwrights in January 1973 in the following terms."
Here
he quotes the heart of Judge Blennerhassett's judgment:
"It
follows from what I have said that I think Mr Smith and Mr. Cartwright are
wrong in believing that they submitted plans and certainly no adequate plans
were submitted in January 1973. It follows that the planning permission is no
longer valid
and
that a site licence could not have been issued before the expiration of the
planning permission
.
It seems to me that the whole extraordinary saga results from the fact that
the Cartwrights were reliant upon others to finance such a prospect and that it
became financially impractical for a site limited to 30 caravans if adequate
facilities had to be provided."
Purchas
LJ goes on:
"From
what I have earlier said in this judgment, it must be clear that I wholly
endorse the judge's findings as set out in this paragraph."
So
there is a plain statement, firstly, that the planning permission had never
become effective because the condition of submitting plans of the layout of the
site had never been met -- Mrs Cartwright still disputes that but she
realistically recognizes that that point has been finally decided against her
in 247 -- and, secondly, that because there was no valid planning permission,
no site licence could have been issued -- I emphasise the past tense -- before
the expiration of the planning permission. In other words, there is a plain
finding by the Court of Appeal, since they adopted Judge Blennerhassett on that
point, which is binding upon me, as is the one about planning permission, that
at no stage up to 1974, when the planning permission expired, could a site
licence have been issued. Both those points are clearly stated.
Before
I leave the judgment I would refer to another point which Mrs Cartwright made,
which again was unfortunately without foundation, as to what was said or not
said in the Court of Appeal judgment. She said that there was no reference to
the Act of 1960. In fact, Purchas L.J. said this page at 16D:
"It
is to be noted that at the time of this exchange" -- that was the
correspondence -- "it was Mr. Cartwright's position that, there being planning
permission for a caravan site in existence under section 3(4) of the Act of
1960, Cheadle were obliged to issue a licence. I regret to say that on both
aspects Mr. Cartwright was wholly misinformed."
What
Mrs Cartwright has said before me this morning is that the council were obliged
to issue a site licence after 1960 because of the existence of planning
permission at that juncture, and that statute obliged them to do so. She
refers to the appendix to Circular 42/60, where it says:
"There
is no power to refuse a licence if a site has planning permission."
Of
course that is right, but it does not avail her here for sound reasons:
firstly, because there was no planning permission, as the Court of Appeal held;
secondly, because there being no valid planning permission no valid site
licence could have been issued during the period of planning permission between
1956 and 1974. I would go still further than that. It is Mrs Cartwright's
firm position today that the council were obliged by law, at any time
immediately after 1960, to issue the site licence, but that point is expressly
rejected by the Court of Appeal as part of their ratio decidendi on page 16:
"It
is to be noted that at the time of this exchange it was Mr. Cartwright's
position that, there being planning permission for a caravan site in existence
under section 3(4) of the Act of 1960, Cheadle were obliged to issue a licence.
I regret to say that on both aspects Mr. Cartwright was wholly misinformed."
There
the Court of Appeal explicitly rejects, in clear and unequivocal terms, the
very point which Mrs Cartwright has raised before me this morning and which she
mistakenly suggests has never been canvassed before. It was canvassed in terms
before Judge Blannerhassett and before the Court of Appeal. As I have shown,
it fails.
I
admire Mrs. Cartwright's pertinacity and the courtesy and skill with which she
advanced her appeal, but I am afraid that a proper scrutiny of the Court of
Appeal judgment, such as I have carried out extensively in this judgment, shows
that her position is misconceived, and, for all those reasons, I dismiss this
application.
© 1996 Crown Copyright
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