Decision Nº LCA 43 1999. Upper Tribunal (Lands Chamber), 21-03-2000
| Jurisdiction | UK Non-devolved |
| Judge | George Bartlett QC President |
| Date | 21 March 2000 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LCA 43 1999 |
|
|
LCA/43/1999
COMPENSATION - limitation of actions - footpath creation order under Highways Act 1980 section 28 - Limitation Act 1980 sections 9 and 39 - estoppel by convention - parties negotiating outside limitation period on basis that claim enforceable - notice given of compensating authority’s intention to take limitation point - claim held to be subject to Limitation Act - compensating authority held to be estopped until opportunity given to claimant to make reference - claimant failing to make reference within reasonable time after notice of authority’s reliance on Limitation Act - claim dismissed
IN THE MATTER of a NOTICE OF REFERENCE
BETWEEN
THE EXECUTORS OF THE ESTATE OF THE Claimants
RIGHT HONOURABLE HERBERT ROBERT CAYZER BARON ROTHERWICK
and
OXFORDSHIRE COUNTY COUNCIL Compensating
Authority
Re: Public footpath through Wychwood Forest
Cornbury Park Estate
Charlbury
Oxfordshire
Before the President
Sitting at 48/49 Chancery Lane
on 31 January 2000 and 1, 2 and 3 February 2000
The following cases are referred to in this decision:
Hillingdon LBC v ARC Ltd [1998] 1 WLR 174; [1999] Ch 139
Pegler v Railway Executive [1948] AC 332
China v Harrow UDC [1954] 1 QB 178
West Riding CC v Huddersfield Corporation [1957] 1 QB 540
Central Electricity Generating Board v Halifax Corporation [1963] AC 785
Re Farmizer (Products) Ltd [1997] 1 BCLC 589
Leivers v Barber Walker & Co Ltd [1943] 1 KB 385.
McCafferty v McAndrews & Co [1930] AC 599
Board of Trade v Cayser Irvine & Co Ltd [1927] AC 610
Sunday Times v UK [1979] 2 EHRR 245
De Geouffre de la Pradelle [1992] A253-B
Bellet v France [1995] A333-B
Stubbings v UK [1996] 23 EHRR 213
Society Levage Prestations v France [1996] 24 EHRR 351
James v UK [1986] 8 EHRR 123
Holy Monasteries v Greece [1994] 20 EHRR 1
Aka v Turkey [1998] VI - no 90 p 2669 ECHR, 23 September 1998
Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd [1982] 1 QB 84
K Lokumal & Sons (London) Ltd v Lotte Shipping Co Pte Ltd (The “August Leonhardt”) [1985] 2 LLR 28
Norwegian American Cruises A/S v Paul Mundy Ltd (The “Vistafjord”) [1988] 2 LLR 343
John v George and Walton (1995) 71 P & CR 375
Republic of India v India Steamship Co Ltd (No 2) [1988] AC 878
Co-operative Wholesale Society v Chester-le-Street District Council (1996) 73 P & CR 111
Lillis v North West Water Ltd [1999] RVR 12
Williams v Blaenau Gwent County Borough Council [1999] 2 EGLR 195
London Borough of Hillingdon v ARC Ltd (unreported; judgment handed down 30 April 1999)
Wright v John Bagnall and Sons Ltd [1900] QB 240
Hewlett v London County Council (1908) 72 JP 136
Fletcher and Son v Jubb, Booth and Helliwell [1920] 1 KB 275
Credit Suisse v Borough of Allerdale [1995] 1 LLR 315
Western Fish Products Ltd v Penwith DC [1981] 2 All ER 204
Robin Purchas QC instructed by Messrs Morgan Cole for the claimants
James Goudie QC and Martin Wood instructed by Mr H R Perkins, Joint Head of Legal Services, Oxfordshire County Council, for the compensating authority
DECISION ON A PRELIMINARY ISSUE
-
This reference concerns a claim for compensation under section 28 of the Highways Act 1980 following the creation of a footpath under the Oxfordshire County Council Public Path Creation Order 1988/Wychwood Forest. The path runs across land owned by the claimants. The order was confirmed on 21 November 1988 and came into effect on 19 December 1988. The claim for compensation was made to the compensating authority on 15 June 1989. It amounted to £1,568,700 and related to losses in respect of forestry, game shooting and estate management and to depreciation in the Cornbury Park Estate. In March 1999 the claim was amended to £1,120,000 plus professional fees.
-
On 8 April 1999, over 10 years after the order came into effect, the claimants gave notice of reference to this Tribunal under section 307 of the Highways Act 1980. The compensating authority say that the claim is statute-barred under section 9 of the Limitation Act 1980. Two questions are raised in the preliminary issue that now falls to be determined: firstly, whether the claim is indeed statute-barred; and, secondly, whether the compensating authority should be estopped from relying upon the limitation.
-
Section 28 of the Highways Act 1980 provides as follows:
“(1) Subject to the following provisions of this section, if, on a claim made in accordance with this section, it is shown that the value of an interest of a person in land is depreciated, or that a person has suffered damage by being disturbed in his enjoyment of land, in consequence of the coming into operation of a public path creation order, the authority by whom the order was made shall pay to that person compensation equal to the amount of the depreciation or damage.
(2) A claim for compensation under this section shall be made within such time and in such manner as may be prescribed by regulations made by the Secretary of State, and shall be made to the authority by whom the order was made.”
-
The Public Paths Orders etc Regulations 1983 provided by regulation 16 that a claim for compensation should be made in writing and served within 6 months of the coming into operation of the order.
-
Section 307(1) of the Highways Act 1980 provided (as originally enacted) as follows:
“(1) Any dispute arising on a claim for compensation under any provision of this Act to which this section applies shall be determined by the Lands Tribunal.
The provisions of this Act to which this section applies are sections 21, 22, 28, 73, 74, 109, 110, 121(2), 126, 193, 200(2) and 292.”
The references to sections 193 and 299(2) have now been repealed.
-
Section 9 of the Limitation Act 1980 provides:
“(1) An action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date on which the cause of action accrued.”
And section 39 (so far as material) provides:
“This Act shall not apply to any action or arbitration for which a period of limitation is prescribed by or under any other enactment (whether passed before or after the passing of this Act) ...”.
-
In Hillingdon LBC v ARC Ltd [1999] Ch 139 the Court of Appeal had to determine whether a claim for compensation where land had been compulsorily acquired pursuant to a notice to treat was subject to section 9(1). It held, affirming the decision of Mr Stanley Burnton QC, sitting as a deputy judge of the Chancery Division ([1998] 1 WLR 174), that the section did apply to such a claim. Giving the principal judgment, Potter LJ (with whom Nourse and Mummery LJJ agreed) identified the issue as follows (at 147):
“13. It is not in issue between the parties that the compensation, if any, to which the defendant may be entitled is a ‘sum recoverable by virtue of any enactment’ under section 9(1) of the Act of 1980.
14. There is also no dispute that, subject to the limitation point, the defendant is entitled to be compensated for the taking of its land pursuant to the compulsory purchase order, notice to treat and notice of entry. Whilst none of the relevant statutory provisions explicitly confers the right to compensation, that right is assumed, or to be inferred, from the terms of sections 6, 7, 11(1) and 11(4) of the Act of 1965, which refer variously to compensation being ‘paid’, ‘agreed’ or ‘awarded’. Finally it is not disputed that both the council and the defendant were entitled, in the event that the amount of compensation was not agreed, to have the disputed compensation referred to the Lands Tribunal for quantification under section 1 of the Land Compensation Act 1961 and section 6 of the Act of 1965. The rival submissions are directed to the question whether, as the council contends, that right of the defendant itself amounts to a cause of action for the purposes of the Act of 1980 (reference by the defendant to the Lands Tribunal in default of agreement in term amounting to ‘an action to recover any sum recoverable by virtue of any enactment’) or whether, as the defendant contends, the cause of action does not arise unless or until the sum is quantified by agreement or decision of the Lands Tribunal.”
-
At 150 Potter LJ said:
“25. It seems to me that a number of authorities make clear that, for the purposes of limitation, a cause of action may accrue for ‘any sum recoverable by virtue of any enactment’ although that sum has yet to be quantified by some process of agreement or adjudication.”
-
He referred to Pegler v Railway Executive [1948] AC 332, China v Harrow UDC [1954] 1 QB 178, West Riding CC v Huddersfield Corporation [1957] 1 QB 540, Central Electricity Generating Board v Halifax Corporation [1963] AC 785 and In re Farmizer (Products) Ltd [1997] 1 BCLC 589. He went on (at 153):
“33. I would adopt the approach of Lord Goddard C.J. in West Riding County Council v Huddersfield Corporation [1957] 1 QB 540. I consider that, when the realities of the position are looked at in a case of this kind, the right to compensation which arises as at the date of entry of the acquiring authority is an immediate right which, in the absence of agreement (as to which there is no obligation upon the parties), can only be enforced at the suit of the claimant by initiating proceedings...
To continue reading
Request your trial