Anixter Ltd v The Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice McCombe,Lord Justice Dingemans |
| Judgment Date | 30 January 2020 |
| Neutral Citation | [2020] EWCA Civ 43 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2019/0261 |
| Date | 30 January 2020 |
[2020] EWCA Civ 43
THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (Lands Chamber)
Martin Rodger QC (Deputy President)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice McCombe
and
Lord Justice Dingemans
Case No: C3/2019/0261
Timothy Morshead QC (instructed by Bryan Cave Leighton Paisner LLP) for the Appellant
Richard Honey with Merrow Golden (instructed by Eversheds Sutherland (International) LLP) for the Respondent
Hearing dates: 16 th January 2020
Approved Judgment
Introduction
At the relevant time Anixter Ltd was the tenant of four units on the Saltley Business Park in Birmingham. One of the units was required for the construction of the HS2 railway. The issue on this appeal is whether Anixter served counter-notices in time under the relevant compulsory purchase legislation, such as to trigger its potential ability to require the acquisition of its interests in all four buildings. That, in turn, gives rise to two sub-issues:
i) Was Anixter's tenancy of Unit R “a long tenancy which is about to expire” for the purposes of section 2 (2) of the Compulsory Purchase (General Vesting Declarations) Act 1981 (“the 1981 Act”)?
ii) If it was, does time for service of a counter-notice under Schedule 2A to the Compulsory Purchase Act 1965 (“the 1965 Act”) start to run when a notice to treat is delivered to the address of the holder of the interest; or only when the holder of that interest has knowledge of it?
The Upper Tribunal (Martin Rodger QC, Deputy President) decided that Anixter's tenancy was a long tenancy which was about to expire; that time began to run when the notice to treat was delivered; and that the UT had no power to extend time. The decision of the UT is at [2018] UKUT 405 (LC), [2019] 1 P & CR 16.
I can take the facts from the UT's decision.
The facts
The Saltley Business Park at Wasbwood Heath in Birmingham lies directly in the path of the proposed route of the HS2 railway. Until 2018 Anixter occupied four buildings on the Park in connection with its business as a distributor of communications and security products. The site of one of those buildings, Unit R, is required in connection with the new railway.
The Secretary of State for Transport is the acquiring authority for the HS2 scheme. High Speed Two (HS2) Ltd (“HS2”), is the nominated undertaker for the scheme and is authorised to serve statutory notices relating to the compulsory acquisition of land for the scheme on behalf of the Secretary of State.
On 8 December 2017 notice to treat was served on Anixter by HS2 under s5 of the Compulsory Purchase Act 1965. The notice informed the company of HS2's intention to acquire Unit R, but not its other buildings at Saltley Park. At the same time, and as a precautionary measure, notice was also given under s.6 of the 1981 Act of the making of a general vesting declaration (a “GVD”) including Unit R. The GVD stated that the land comprised within it would vest in the acquiring authority as from the end of the period of three months from the date of completion of service of notices after the making of the GVD. (In the event, that date turned out to be 13 March 2018). The notices were sent by both ordinary and recorded delivery post; and were delivered to and received at Anixter's registered office on 12 December 2017.
The notices sent by HS2 on 8 December 2017 were addressed to Anixter's “Company Secretary”. But Anixter does not have (and is not required to have) a company secretary. In such a case the notices are treated as having been addressed to the company itself.
As HS2 was aware, the person who dealt with real estate matters on behalf of Anixter, including dealing with HS2, was Mr Brookes. The envelope containing notice of the GVD was delivered and signed for by a member of Anixter's post room staff. Mr Brookes was away on business at the time. The envelope stated on the outside that it was from HS2's Land & Property Team and warned that “this letter affects your property”. Because the letter was not addressed to Mr Brookes by name it was not scanned and emailed to him by the post room staff, as Anixter's procedures would otherwise have required. Because Anixter does not have a company secretary the letter was not immediately delivered to any individual, nor was it given to Anixter's facilities manager (as its procedures ordinarily required) because that post was temporarily vacant and being covered by Mr Brookes. Instead the envelope was left unopened on Mr Brookes' desk to await his return; and although he telephoned his office daily during his absence he was not alerted to its arrival.
Mr Brookes did not open the envelope containing the notice of the making of the GVD until his return to the office on 20 December 2017. The UT found that that was the first time that anyone within Anixter's organisation was aware of the GVD. The UT made no separate finding about the notice to treat; but it is not suggested that anyone within Anixter's organisation knew about it any earlier.
On 10 January 2018 Anixter responded to the notices by serving counter-notices requiring the Secretary of State to acquire not only Unit R but its remaining premises as well. Anixter's counter-notices arrived the following day.
Anixter's interest in Unit R was under a lease granted on 20 May 2013 for a term expiring on 24 December 2018 (referred to in the lease as the “Contractual Term”). At the vesting date provided for by the general vesting declaration the lease therefore had a contractual period of a little over nine months still to run. That period was less than the specified period of one year and one day.
Anixter was in occupation of Unit R for the purposes of its business; and therefore, its tenancy was one to which Part II of the Landlord and Tenant Act 1954 applied.
The statutory framework
Ever since the early days of compulsory purchase Parliament has recognised that if an acquiring authority only requires part of a person's land holding, that may cause the landowner significant harm. Thus, beginning with section 92 of the Lands Clauses Consolidation Act 1845, the legislation has provided that in certain circumstances a person cannot be compelled to sell part of his land holding if he is willing to sell the whole. The landowner signified his willingness to sell the whole by counter-notice given to the acquiring authority. That rule was repeated in section 8 of the 1965 Act. Neither of those two Acts laid down any particular time limits for the exercise of the right to require a sale of the whole. If counter-notice is given the acquiring authority must decide whether to take the whole, or to abandon the acquisition. It is that right which Anixter wishes to exercise.
When this rule was incorporated into the 1981 Act Parliament, for the first time, introduced a time limit for the service of a counter-notice. That time limit was 28 days after service of notice under section 6 of the 1981 Act; but that time could be extended where it was proved either that the notice was never received; or that it was received less than 28 days before the date on which the period specified in the GVD expired: 1981 Act Sched 1 paras 2, 10 (both now repealed).
Subsequent amendments to the 1965 Act introduced a time limit; and subsequent amendments to the 1981 Act altered the time limit contained in that Act. But the time limits in the two Acts are expressed in different words.
The current time limit for the service of a counter-notice under the 1965 Act is 28 days “beginning with the day on which the notice to treat was served”: 1965 Act Sched 2A para 5. The current time limit for service of counter-notice under the 1981 Act is 28 days “beginning with the day the owner first had knowledge of” the GVD: 1981 Act Sched Al para 3. Both these amendments were made by the same Act: Housing and Planning Act 2016 section 199; and Schedules 17 (amendments to the 1965 Act) and 18 (amendments to the 1981 Act).
It is (now) common ground that if the 1981 Act applies to Anixter's interest then the counter-notices were in time. But whether the 1981 Act applies to Anixter's interest is the first main issue on this appeal. If it does not, the second issue is whether the counter-notices given under the 1965 Act were in time.
The GVD procedure was first introduced in the Land Commission Act 1967. Its purpose is to short-circuit the lengthier process of notice to treat followed by notice of entry. Execution of a GVD is (after preliminary notice) a single-step process which vests title to subject land automatically in the acquiring authority without need for formal conveyance or investigation of title. It is of particular value to an acquiring authority where many titles are to be acquired or where the investigation of title may be complex. It also simplifies the date for assessment of compensation, which will be measured as at the vesting date.
If an acquiring authority makes a GVD, it takes effect as a notice to treat served on every person on whom the authority could have served notice to treat; except a person entitled to a minor tenancy or a long tenancy which is about to expire: section 7 (1). Any land specified in the general vesting declaration, together with the right to enter upon and take possession of it vests in the acquiring authority on the vesting date: section 8. But there is an exception to this contained in section 9, which provides:
“(1) This section applies where any land specified in a general vesting declaration is land in which there subsists a minor tenancy or a long tenancy which is about to expire.
(2) The right of entry conferred by section 8(1) above shall not be exercisable in respect of...
To continue reading
Request your trial
-
Robert MacCallum v Secretary of State for Education
...this sentence in Adesina at [15], as have other courts subsequently (see for example Anixter Ltd v Secretary of State for Transport [2020] EWCA Civ 43; [2020] 1 WLR 2547 at [67]). 51 Care needs to be taken in relation to this additional statement. The reference to a litigant doing all tha......
-
Lars Stuewe v The Health and Care Professions Council
...this sentence in Adesina at [15], as have other courts subsequently (see for example Anixter Ltd v Secretary of State for Transport [2020] EWCA Civ 43; [2020] 1 WLR 2547 at [67]).51 Care needs to be taken in relation to this additional statement. The reference to a litigant doing all that t......