Decision Nº ACQ 96 2006. Upper Tribunal (Lands Chamber), 30-11-2009
| Jurisdiction | UK Non-devolved |
| Judge | George Bartlett QC President |
| Date | 30 November 2009 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | ACQ 96 2006 |
|
UPPER TRIBUNAL (LANDS CHAMBER) |
|
|
UT Neutral citation number: [2009] UKUT 242 (LC)
LT Case Number: ACQ/96/2006
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – compulsory purchase – preliminary issues – freehold interest acquired by agreement in advance of CPO – whether claimant entitled to compensation in respect of underlease – held it was not underlessee – whether Tribunal had power to determine compensation for freehold interest – held it did not since interest transferred at agreed price – whether claimant could claim compensation for disturbance – held that it could
IN THE MATTER OF TWO NOTICES OF REFERENCE
LONDON DEVELOPMENT AGENCY Acquiring
Authority
Re: Haegil House,
42-44 New Road,
Dagenham,
Essex, RM9 6YS
Before: The President
Sitting at Procession House, 110 New Bridge Street, London EC4V 6JL
on 17-19 March 2009
Matthew Horton QC instructed by Charles Russell for the claimant
James Pereira instructed by Hammonds for the acquiring authority
Hughes v Doncaster MBC [1991] 1 AC 382
Horn v Sunderland Corpn [1941] 2 KB 26
DHN Food Distributors Ltd v Tower Hamlets LBC (1976) P & CR 240
The following further cases were referred to inargument:
City Permanent Building Society v Miller [1952] Ch 840
Milford Haven UDCv Foster (1961) 13 P & CR 289
Re the Local Government Superannuation Act 1937 and 1939, Algar v Middlesex County Council [1945] 2 All ER 243
Covell v Sweetland [1968] 2 All ER 1016
Hopgood v Brown [1955] 1 All ER 550
Holt v Markham [1923] 1 KB 504
Prasad v Wolverhampton BC [1983] RVR 55
Chamberlain v The West End of London and Crystal Palace Rly Co (1865) 2 B & S 617
J Evans & Sons (Portsmouth) Ltd v Andrea Merzano Ltd [1976] 1 WLR 1078
Brikom Investments Ltd v Carr [1979] QB 467
The Moorcock (1889) 14 PD 64
Johnstone v Bloomsbury Health Authority[1992] QB 333
Hamlyn & Co v Wood & Co [1891] 2 QB 488
Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130
Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd [1982] QB 84
Rogers v Kingston-upon-Hull Dock Co (1864) 11 LT 463
Holloway v Dover Corpn [1960] 1 WLR 604
DECISION Introduction-
On 21 June 2006 two notices of reference were made on behalf of Solartrack Plc by Mr N J Winbourne FRICS in respect of land at 42-44 New Road, Dagenham, Essex RM9 6YS. Each was stated to be a claim for compensation following a compulsory purchase order. The first was in respect of the freehold interest. The approximate amount claimed was stated to be £2,800,000. It stated as the statutory provision under which the reference was made: “Land Compensation Act 1961, Compulsory Purchase Act 1965, Section 7 (possibility of land Compensation Act 1973, S 30”. It indicated that it was a “claim for compensation following a compulsory purchase order”. It answered “No” to the question whether the acquiring authority had taken possession. And it said, “(NB Part payments have been made)”.
-
The second notice was stated to relate to “Unexpired underlease from 24 June 1964 for 42 years”, and the approximate amount of the claim was given as £700,000. It stated the same statutory provisions as in the first notice. It indicated that it was a “claim for compensation following a compulsory purchase order”, and answered “No” to the question whether the acquiring authority had taken possession. It added, “(NB An advance payment has been made)”.
-
The factual background is somewhat complex. Put shortly it is this. Between March 2001 and March 2003 there was negotiation between Solartrack and the London Development Agency which resulted in a conveyance on 28 March 2003 to the LDA of the freehold interest in the property, pursuant to a contract of the previous day, for the sum of £445,000. On 14 October 2003 the LDA made the London Development Agency (Chequers Corner, Dagenham) Compulsory Purchase Order 2003. The CPO was confirmed by the Secretary of State for Trade and Industry on 22 July 2005. Included within it were all the interests in 42 and 44 New Road, the LDA being given as the owner, and the occupier was given as Solartrack plc “(as to the Ground Floor and Basement)”. On 23 September 2005 Solartrack and the LDA entered into an agreement under which the LDA paid Solartrack £100,000 as an advance payment towards its disturbance costs. On 12 December 2005 the LDA made a general vesting declaration. Included in the schedule of interests in land and buildings so vested were “42 and 44 New Road … except those interests of the Authority … Seco-Larm (UK) Ltd, Solartrack Plc and the National Westminster Bank Plc.” As I will explain more fully, National Westminster Bank Plc was the head-lessee of part of the premises under a lease dated 18 February 1965 for a term of 42 years from 24 June 1964 and Seco-Larm (UK) Ltd, an associated company of Solartrack, had been the underlessee under a lease dated 28 June 1983 of the “shop and room at 42 New Road, Dagenham” and the “single storey extension and strongroom at the rear thereof”. The term of the underlease was 23 and a quarter years less three days from 25 March 1983, expiring on 21 June 2006. Solartrack claims that the underlease was assigned to it on 1 November 1996.
-
The LDA, having received copies of the notices of reference, considered that the claimant had no right to compensation for the underlease: that it had not compulsorily acquired the freehold of the property but had purchased it by agreement; and that the claim for disturbance was premature since it had not, at that time (June 2007) taken possession of the property pursuant to the compulsory purchase order. It therefore applied for the references to be struck out. Following exchanges of statement of case and reply, on 15 April 2008 I ordered that the following issues be determined as preliminary issues:
(a) Whether the claimant is entitled to compensation in respect of the underlease dated 28 June 1983.
(b) Whether the claimant is entitled to compensation for the freehold interest in 42/44 New Road, Dagenham.
(c) Whether the claimant is entitled to claim compensation for disturbance under section 37 of the Land Compensation Act 1973.
-
Although there is a large measure of agreement on the primary facts there are disputes as to the alleged assignment to Solartrack of the Seco-Larm lease; on certain aspects of the negotiations between the parties; and on certain aspects of the occupation of the premises. Evidence for the acquiring authority was given by Steven Kidd, a senior development manager at the LDA, who was involved in negotiations with the claimant from February 2003, and by Colin Cottage, a chartered surveyor and member of the Glenny LLP, who was the surveyor instructed on behalf of the LDA to negotiate the acquisition of the freehold with the claimant’s advisers. Evidence for the claimant was given by Anthony Leslie Pipkin, a director of Solartrack Plc and also of Solartrack Leisure Limited and Solartrack Installations Limited. He had also been a director of Seco-Larm (UK) Limited. The facts set out below are derived from the agreed statement and the evidence of the witnesses, including the documents appended to their witness statements. Following the hearing closing submissions in writing were received dated 31 March 2009 and 1 June 2009 respectively.
The reference property
-
Numbers 42 and 44 New Road were built as the semi-detached components of a three-storey building. Each has a shop front, and it appears that, before occupation by the claimant, 42 had been a bank and 44 the offices of an insurance company. Number 42 contains a ground floor and basement of approximately 153 sq m and a rear extension with its own entrance, arranged as an office with ancillary space. It has the use of half the rear car park, the front forecourt and a rear service yard. There is a front door. The ground floor of number 44, is about 103 sq m in area. Inside the front entrance is a corridor and stairway leading to the first and second floors, each spanning across numbers 42 and 44, the first floor being offices, the second floor residential.
The interests
-
The freehold was formerly owned by Liverpool and Victoria Friendly Society and was sold by the Society to the claimant. The...
To continue reading
Request your trial