Bethel and Others v Attorney General of the Commonwealth of Bahamas
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carnwath |
| Judgment Date | 24 October 2013 |
| Neutral Citation | [2013] UKPC 31 |
| Date | 24 October 2013 |
| Docket Number | Appeal No 0045 of 2012 |
| Court | Privy Council |
[2013] UKPC 31
Privy Council
Lord Mance
Lord Kerr
Lord Clarke
Lord Carnwath
Lord Hughes
Appeal No 0045 of 2012
Appellants
Kahill Parker
Cedric Parker
(Instructed by Cedric L Parker and Co)
Respondent
Howard Stevens QC
Edmund Von C Turner
(Instructed by Charles Russell LLP)
Heard on 3 October 2013
This appeal from the Court of Appeal of The Bahamas raises issues as to the proper construction of the Acquisition of Land Act (cap 252) and the related provisions of the Constitution. It concerns the compulsory purchase of land belonging to the appellants, commenced by a notice under the Act dated 19 January 2007. The acquisition was for a proposed development by a company called Park Ridge Securities Corporation ("Park Ridge"). By originating summons dated 28 April 2008, the appellants challenged the legality of the acquisition, both under the Act and under the Constitution. In a judgment given in December 2009, Albury J made declarations to the effect that compulsory acquisition "without prompt or any adequate compensation" was contrary to the Act and to article 27 of the Constitution, and that in default of payment of such compensation the appellants were entitled to immediate possession of their properties. That judgment was reversed by the Court of Appeal on 1 April 2011, the single judgment being given by Allen P. The appellants appeal to the Board as of right.
The Acquisition of Land Act was originally enacted in 1913 and has been subject to numerous amendments since then. The main issues in this case turn on the provisions of section 6 headed "Declaration of Intending Acquisition". This provides:
"6. (1) Whenever it appears to the Minister that any particular land is needed for a public purpose a notice to that effect signed by the promoters shall be published in the Gazette and posted on some conspicuous part of such land, but no such notice shall be published or posted unless the compensation to be paid for such land is to be paid out of public revenue or out of the funds of some statutory corporation.
(2) Such notice shall state the following particulars -
(a) the district in which the land is situate;
(b) the particular purpose for which it is required;
(c) its approximate area and all other particulars necessary for identifying it, and if a plan has been made of the land, the place where and time when such plan may be inspected;
(d) an intimation that all persons interested in the land shall, within thirty days from the publication of the notice or the posting of the same, state in writing to the promoters the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests.
(3) Subject to a right of appeal to the Supreme Court as to the legality of the proposed acquisition which shall be filed within thirty days of the publication of the notice or the posting of the same, the notice shall be conclusive evidence that the land is needed for a public purpose, and is selected land within the meaning and for the purposes of this Act…."
As defined by section 2, the term "promoters" means "a Minister or any statutory corporation by or on behalf of which the selected land may be acquired under this Act". "Public purpose" includes, subject to article 27 of the Constitution, a number of specific purposes, including —
"(d) any purpose for which land is, in the opinion of the Governor General, required for providing hotel accommodation, or promoting the tourist traffic of The Bahamas, or providing increased harbour or dock facilities,…"
"Selected land" is defined as "any land required for a public purpose".
Provision for compensation is made by section 15, under which, if the promoters and those interested in the land are unable to agree a private purchase, and if the value exceeds $4,000, then the value of the selected land and the compensation payable for interests therein, shall be determined by the court (defined for these purposes as the Supreme Court). There is provision for application to the court either by the promoters or by "any person interested". Section 16 provides for various special cases: where, for example, the claimants are absent from The Bahamas or cannot be found, payment is to be made to the Treasurer for the credit of the person interested subject to control of the court.
Section 18 has the side note "when possession obtainable". Either on payment of compensation, or, "if in the opinion of the Minister it is necessary for a public purpose" that possession should be obtained before payment, he may by notice in the Gazette declare that "the selected land has been appropriated for the public purpose mentioned in such notice", and thereupon, except as otherwise provided in the section,—
"the selected land and the fee simple and inheritance thereof and all the estate, use, trust and interest of all parties therein shall thenceforth become vested in and become the property of the promoters for such public purpose, and the promoters may enter upon and take possession of the same …"
Where possession is taken in advance of payment of compensation, the promoters must pay, "in addition to the purchase money or compensation" agreed or awarded, interest at a prescribed rate from the date of the notice in the Gazette until payment.
Section 28 deals with the principles on which compensation is to be assessed, generally based on market value (increased by 10% under section 29) and other consequential losses, but disregarding certain specified matters, such as the degree of urgency of the acquisition and any increase in value due to its use after acquisition. By section 50 there is a general limit of twelve months for the making of claims for compensation under the Act.
Turning to the Constitution, article 27 has the side-note "Protection from deprivation of property". It provides that no property may be compulsorily taken unless the taking is "necessary" in the interests of various defined public purposes including —
"the development or utilisation of any property in such manner as to promote the public benefit or the economic well-being of the community."
The necessity must be such as to afford "reasonable justification for the causing of any hardship that may result" to those interested in the property. It has been held that the word "necessary" does not import an absolute test, but involves "some elements of degree", referring to "what may be regarded as highly expedient in all the circumstances rather than to that which is quite indispensably required" (see Baker v Attorney General (1965 to 71) LRB 279, 283).
There must be provision for "the making of prompt and adequate compensation in the circumstances" to those interested, and for securing for them a right of access to the Supreme Court for the determination of the legality of the taking of the property and of the amount of any compensation, and for the purpose of obtaining prompt payment. Article 28(2) gives the Supreme Court jurisdiction to determine applications alleging contravention of article 27, but subject to the proviso —
"Provided that the Supreme Court shall not exercise its powers under this paragraph if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law."
The story begins with Heads of Agreement dated 9 November 2006, entered into between the government and Park Ridge providing for what was known as the "Albany Project". This was described as "an extensive multi-faceted land development scheme comprising a gated resort, exclusive residential areas, golfing and yachting amenities". As envisaged by the Heads of Agreement this development was concurrent in time with a separate proposal for the construction of a proposed new container port in Southwest New Providence. It was envisaged that there would be other public benefits, including improvements to the Clifton Heritage Park, and the provision of 320 acres of land to the government for affordable housing for Bahamians. Under the agreement the government agreed to secure the rerouting of a road which bisected the land upon which the project was to be developed. Park Ridge's commitment to the total value of the project was put by the agreement at $1.3 billion.
In relation to the "Proposed Port Road", Park Ridge undertook to contribute the funds necessary for the government to acquire additional land from other owners, referred to as "the acquisition properties" (cl 1.1.7). The government for its part undertook following the execution of the Heads of Agreement forthwith to commence the acquisition process in relation to the acquisition properties in accordance with the Acquisition of Land Act; it was provided that "the costs for the said acquisition shall be the responsibility of Park Ridge" (cl 9.9).
On 19 January 2007 a Declaration of Intended Acquisition was published, under the name of the responsible minister, giving notice that the lands described in the schedules were "needed for a public purpose, namely, construction of public roads and for uses related thereto…" All persons interested were required to state in writing to the promoter the nature of their interest and "the amounts and particulars of their claim to compensation". On 16 March 2007 a further notice was served stating that the responsible minister was of the opinion that possession should be obtained before payment of compensation and declaring that lands had been "appropriated" by the minister for the purpose mentioned in the Declaration with effect from the date of the notice. On 4 January 2008 there was published a "Declaration of Vesting"...
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