City of Glasgow District Council v Morrison McChlery & Company
| Jurisdiction | Scotland |
| Judgment Date | 19 June 1984 |
| Date | 19 June 1984 |
| Docket Number | No. 7. |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Compulsory powersCompulsory purchaseExpedited completionDeclaration of intent to expede notice of title providing for "possession, subject to existing tenancies, of the land"Notice of title providing that acquiring authority had "right absolutelyto the whole of the lands"Whether existing tenancies vested in acquiring authorityTown and Country Planning (Scotland) Act 1945 (cap. 33), sec. 621, Sched. 6, paras. 1 (3), 3 (1), (2), (3) and (4)Town and Country Planning (Scotland) Act 1947 (cap. 53), sec. 36 (1), Sched. 11.
RecompenseRelevancyAlternative remedies availableTenant continuing in occupation after alleged termination of leaseFailure to aver special circumstances justifying recompense.
A local authority raised an action of payment against a partnership whom they averred had continued to occupy certain subjects after their lease had
been acquired by the pursuers' statutory predecessors by virtue of their compulsory powers. They averred that after having served a purchase order their predecessors had executed a declaration which stated their intent to enter into possession of the land, but subject to existing tenancies, and to expede a notice of title in accordance with the procedure for expedited completion set out in Sched. 11, para. 3, to the Town and Country Planning (Scotland) Act 1947. The authority then expeded a notice of title which stated that it had the right absolutely and free of any security to the whole of lands affected, by the order. The authority had thus acquired the rights of the defenders under their lease. As the latter had remained in possession of the subjects of the lease without having paid any rent, the pursuers, as successors to the acquiring authority, were entitled on the principle of recompense to the sum sued for. The defenders pleaded inter alia that the pursuers' averments were irrelevant. The sheriff sustained that plea and dismissed the action. The pursuers appealed to the Court of Session and lodged a minute of amendment which the defenders conceded remedied certain deficiencies in their averments. The appellants contendedinter alia that "any interest in land" as defined by sec. 62 of the Town and Country Planning (Scotland) Act 1945 was sufficient to include the defenders' lease and that this construction was confirmed by the use of "absolutely" in para. 3 of Sched. 11 to the 1947 ActHeld (refusing the appeal) (1) that as para. 3 of Sched. 11 of the 1947 Act was part of a statutory procedure involving compulsory acquisition both it and the notice of title should be strictly construed.
(2) That the definition of "land" included "any interest in land" and not "all interests" and the acquiring authority could therefore competently acquire the rights of owners of the land without acquiring the rights of tenants; the authority required to specify in the declaration and notice which interests were to be acquired.
(3) That there had been no need to refer in the declaration and the notice to those tenancies excluded by statute and these documents therefore
expressly excluded the defenders' lease; the use in the notice of title of the word "absolutely" referred only to the land described in the declaration of intent which was "subject to existing tenancies"(4) That, in any event, it would require special circumstances to justify an action of recompense when there was, or had been, an alternative remedy open to the pursuers; in this case such a remedy, for example an action of removing, had existed.
Varney (Scotland) Ltd. v. Burgh of LanarkSC1974 S.C. 245applied.
City of Glasgow District Council raised an action in the Sheriff Court at Glasgow against Morrison McChlery & Company in which they concluded for payment of 46,924.93. The averments of the parties appear fully in the opinion of the Lord Justice-Clerk.
On 4th March 1982 the sheriff (Jardine) sustained the plea-in-law for the defenders as to the relevancy of the pursuers' averments and dismissed the action. The sheriff appended the following note to his interlocutor: "In this action the pursuers, the City of Glasgow District Council, seek decree against the defenders, Messrs Morrison, McChlery and Co., for payment of a sum of 46,924.93, in name of recompense in respect of a period of occupancy by the latter of certain premises situated at 44 Renfrew Street, Glasgow.
The basis for this claim, as it appears from the pursuers' written pleadings, has been challenged for the defenders by a preliminary plea, on grounds that the averments concerned are irrelevant andseparatelylack due specification. In the debate which arose from this plea, I had the advantage of hearing arguments lucidly presented by learned senior counsel for each of the parties, being Mr W. D. Cullen, Q.C., for the pursuers and Mr D. B. Weir, Q.C., for the defenders. The issues involved consideration of complex statutory provisions relating to compulsory acquisition of land by a local planning authority, and were particularly concerned with the effect of statutory procedures used upon the subsistence of a lease.
The claim in this case arises out of the acquisition by the Corporation of the City of Glasgow, under and by virtue of the Cowcaddens Compulsory Purchase Order No. 3,1963, of lands which included the said premises at Renfrew Street.
The action is at the instance of the present pursuers as statutory successors to the said corporationAs the amended closed record (17 of process) discloses, and as was further borne out at the debate, there is much about the background to this matter which is not in dispute between the parties. Apart from various matters of admission on the record, counsel for each party referred during the debate to copies lodged of documents which are mentioned in the pleadings, and it was my understanding that the existence of the originals and the authenticity of the copies was not in question. On this basis, it seemed to be accepted in common that, as at 16th November 1965 (when the notice of title vesting the said corporation in inter alia the said premises was recorded), the defenders were already in occupation of the premises as tenants under a minute of lease and relative minute of agreement, of which 18/1 of process is a copy, and whichsubject to a tenants' right to terminate the tenure in 1970still then had a remaining term of about 7 years to run, at a fixed rent of 750 per annum (plus owners' rates) for these particular premises. It was also a matter of admission that the defenders had remained in occupation of the premises until 6th January 1978.
On the view that the defenders' other pleas in law would, if needed, require some form of enquiry into facts, Mr Weir confined his submissions to his clients' first plea, but, on this basis, moved strongly for dismissal of the action on grounds of both relevancy and want of specification. In my understanding, a party's averments are irrelevant when, even if proved, his case must necessarily fail (Jamieson v. JamiesonSC 1952 S.C. (H.L.) 44,per Lord Normand at p. 50). I believe further that it was incumbent upon the pursuers to state their averments with sufficient specification to support the crave (e.g., see Maclaren,Court of Session Practice, p. 389).
In this particular case there appeared to be no doubt about the statutory procedures of acquisition which had actually been adopted, and, in outlining these, counsel for the defenders made it clear that his clients were not challenging either the form or the regularity of the procedures thus used. Accordingly, it was my understanding that the compulsory acquisition concerned arose out of the provisions of section 35 of the Town and Country Planning (Scotland) Act 1947, and that, in accordance with section 36 of that
Act, the relative compulsory acquisition order (as approved) included a direction to apply the provisions of the Sixth Schedule to the Town and Country Planning (Scotland) Act 1945 (as amended), and thus incorporated and empowered the use of what is referred to as the expedited completion of purchase procedure. The detailed provisions of the said Sixth Schedule (as amended) are conveniently reprinted as a part of the Eleventh Schedule to the said 1947 ActIn my understanding, 18/2 of process is accepted as being a true copy of the compulsory purchase order concerned, with relative minute of confirmation appended, which was recorded in the appropriate division of the General Register of Sasines on a date which I have taken as being 15th July 1965. It should be noted that, in terms of paragraph 1 (1) and (2) of the said Sixth Schedule, such recording is deemed to be the equivalent of service on that date of a notice to treat on all parties interested in the lands concernedthat is to say, such a notice as is mentioned in section 17 of the Lands Clauses Consolidation (Scotland) Act 1845. However, paragraph 1 (3) of the Schedule creates two exceptions to this, as follows. [The sheriff quoted the paragraph and continued.]
As I believe was not in question, the defenders' tenancy of the premises at Renfrew Street did not fall within either excepted category, because it did not conform with the definition given for either category. It was plainly not a short tenancy, and, in so far as regards the alternative concept of a long tenancy which is about to expire, I have found nothing in the relative Order (18/2) which bears to specify a period for the operation of that provision, as the definition requires.
The next step in sequence was, in my understanding, the execution and service by the said corporation (as purchasing authority) of a declaration of intention to enter and to expede a notice of title relative to the lands concerned, in accordance with paragraph 3 (1) to (3) inclusive of the said Sixth Schedule, of which 18/3 is a copy and bears that it was dated 16th September 1965. After an explanatory preamble, this...
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