Essex Incorporated Congregational Church Union v Essex County Council
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Jenkins,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Devlin |
| Judgment Date | 17 January 1963 |
| Judgment citation (vLex) | [1963] UKHL J0117-2 |
| Date | 17 January 1963 |
| Court | House of Lords |
[1963] UKHL J0117-2
Lord Reid
Lord Jenkins
Lord Morris of Borth-y-Gest
Lord Hodson
Lord Devlin
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Essex County Council against Essex Incorporated Congregational Church Union, that the Committee had heard Counsel, as well on Thursday the 29th day of November last, as on Monday the 3d day of December last, upon the Petition and Appeal of the Essex County Council, of County Hall, Chelmsford, in the County of Essex, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 3d of April 1962, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the Essex Incorporated Congregational Church Union, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 3d day of April 1962, in part complained of in the said Appeal, be, and the same is hereby, Discharged except as to Costs: And it is hereby Declared, That this House doth refuse to answer the Question in the Case Stated: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Lands Tribunal, to do therein as shall be just and consistent with this Judgment: And it is also further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal to this House, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
In this case the Lands Tribunal on 26th June, 1961, stated a Case at the request of the present Appellants for the decision of the Court. It was stated in the Case that the question on which the decision of the Court was desired was a preliminary point of law arising in a reference by the present Respondents, and was "the question whether or not the provisions of Part IV of the Town and Country Planning Act, 1959, enable a purchase notice to be served under section 39 of that Act in respect of land part of which (being a church) is exempt from rates and has no rateable value, and whether or not the purchase notice served by the Claimants in the case is valid".
The Court of Appeal did not give effect to a preliminary objection by the present Respondents but proceeded to answer the question in the Case in their favour. Your Lordships, being inclined to take a different view about the proper answer to this question, heard a fuller argument on the preliminary objection. For reasons which I shall state in a moment, I am of opinion that the Lands Tribunal had no jurisdiction to entertain or decide this preliminary point of law, and that accordingly this Case should never have been stated and the question in it should not have been answered by the Court of Appeal, and should not now be answered by your Lordships.
The matter arose in this way. Part IV of the Act of 1959 enables owner-occupiers of, inter alia, land proposed to be taken for road widening to require the appropriate authority to purchase the whole of any hereditament of which part is proposed to be taken. The Respondents own a site in High Street, Wickford, on which there are a Church and Hall. Part of this site is shewn on an approved plan for road widening and is land coming within the scope of section 39(1)( f) of this Act. Section 39(2) provides that—
"Where the whole or part of a hereditament or agricultural unit is comprised in land of any of the specified descriptions, and a person claims that—
( a) he is entitled to an interest in that hereditament or unit, and
( b) the interest is one which qualifies for protection under this Part of this Act, and
( c) since the relevant date he has made reasonable endeavours to sell that interest, and
( d) he has been unable to sell it except at a price substantially lower than that for which it might reasonably have been expected to sell if no part of the hereditament or unit were comprised in land of any of the specified descriptions,
he may serve on the appropriate authority a notice in the prescribed form requiring that authority to purchase that interest …".
The Appellants are admittedly the appropriate authority and the Respondents duly served a notice requiring them to purchase the whole of their hereditament.
The Act then provides by section 40 that the appropriate authority may within two months after the service of the notice serve a counter-notice objecting to the notice. Section 42 provides that where a notice has been served and there is either no counter-notice objecting to the notice, or where a counter-notice has been served and "the objection is withdrawn or, on a reference to the Lands Tribunal is not upheld by the Tribunal". the appropriate authority shall be deemed to be authorised to acquire the land compulsorily and to have served a notice to treat.
The Appellants did serve a counter-notice and it is necessary to set out in some detail what they did and what the Act provides with regard to counter-notices and how they are to be dealt with.
Section 40, having in subsection (1) provided for service of a counter-notice, sets out in subsection (2) six "grounds on which objection may be made in a counter-notice", and provides by subsection (3):
"Any counter-notice … shall specify the grounds (being one or more of the grounds mentioned in the last preceding subsection) on which the appropriate authority object to the notice".
One of those grounds is "( e) that (for reasons specified in the counter-notice) the interest of the claimant is not an interest qualifying for protection under this Part of this Act." There is nothing in the Act entitling the appropriate authority to add to or amend its counter-notice after the expiry of the two months, or entitling the Lands Tribunal to make or authorise any such addition or amendment. This omission appears to me to be deliberate and I can see good reason for it.
The Appellants' counter-notice was duly served within the two months period. It contained the following statements—
"The grounds on which objection is taken are—
The conditions specified in paragraphs ( c) and ( d) of subsection (2) of Section 39 of the Town and Country Planning Act, 1959 are not fulfilled.
Note. If you do not accept this objection, you may require the objection to be referred to the Lands Tribunal, under the provisions of section 41 of the Act. In that case you should notify the Registrar of the Lands Tribunal, 3 Hanover Square, London W.1, within 2 months of the date of service of this notice."
Admittedly there is nothing in the counter-notice which could be construed as a reference to paragraph ( e) of section 39 (2), and Counsel for the Appellants frankly admitted that it was only at some later date that it occurred to them that the Respondents' interest did not qualify for protection under the Act.
The Tribunal is brought in in this way. Section 41 (1) provides that, where a counter-notice has been served objecting to a notice, the claimant "may require the objection to be referred to the Lands Tribunal". The Respondents did so require. The duty of the Lands Tribunal is then specified as follows (omitting provisions which do not apply to this case):
"(2) on any such reference, if the objection is not withdrawn, the Lands Tribunal shall consider the matters set out in the notice served by the claimant and the grounds of the objection specified in the counter-notice; and, subject to the next following subsection, unless it is shewn to the satisfaction of the Tribunal that the objection is not well-founded, the Tribunal shall uphold the objection"
"(4) If the Tribunal determines not to uphold the objection, the Tribunal shall declare that the notice to which the counter-notice relates is a valid notice".
Before the reference to the Tribunal had proceeded very far it occurred to the Appellants that the interest of the Respondents did not qualify for protection because it did not fall within section 39 (4), and they took the view that they could bring this before the Tribunal notwithstanding the fact that it could have been but was not raised in their counter-notice. As I understand it, their argument was that there could not be a valid reference to the Tribunal unless there was a valid notice, that a notice could not be valid if any of the conditions in section 39 (2) was not satisfied or at least if the interest was not one which qualified for protection, and that the provision in section 41 (2) that the Tribunal "shall consider the matters set out in the notice" enabled them to raise the point. Accordingly they applied to have this matter dealt with on a preliminary point of law.
In my judgment this was a complete misapprehension. In the first place it would go far to nullify the elaborate provisions of section 40. Why should that section provide that the counter-notice must specify the grounds of objection to the notice and in the case of ground ( e) must further specify the reasons, if it is to be open to the authority to disregard these requirements and make a case under ground ( e) before the Tribunal without even mentioning it in the counter-notice? What is referred to the Tribunal is not the validity of the notice but the validity of the objection in the counter-notice. Any...
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