Lee v Minister of Transport
| Jurisdiction | England & Wales |
| Judgment Date | 03 June 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0603-1 |
| Court | Court of Appeal |
| Date | 03 June 1965 |
[1965] EWCA Civ J0603-1
In The Supreme Court of Judicature
Court of Appeal
From the Lands Tribunal
The Master of the Rolls
(Lord Denning)
Lord Justice Davies and
Lord Justice Russell
MR. W. J. GLOVER (instructed by the Treasury Solicitor) appeared as Counsel for the Appellant.
MR. D. P. KERRIGAN (instructed by Messrs Meynell & Penberton) appeared as Counsel for the Respondent.
His Honour Judge Lee owned a bungalow and nearly three acres of land at Liphook. The Minister of Transport proposed to cake a new road near the property. The Judge then tried to sell it. He got an offer of £5,500 but the sale fell through because of the road proposals. He advertised it in the Times, but with no result. He put it into the hands of Cubit & West, estate agents. Two persons were interested but, when they got to know about the new road, they withdrew. The road proposals had cast "blight" on the property. On the advice of the estate agents, Judge Lee then served a notice on the Minister requiring him to purchase the property. The Minister raised no objection. That meant that the case had to be treated as if the Minister had acquired the propretty compulsorily and had served a notice to treat for it. The estate agent and the district vaguer met to settle the price. It was fixed at £5,500. But then the question arose about the commission payable to the estate agents. Judge Lee wanted the Minister to pay it. But the district vaguer did not agree. He said that, apart from the "blight", if Judge Lee had sold it to a private purchaser for £5,500 he would have had to bear the commission himself. So he ought to do so, on a sale to the Minister. Judge Lee said that, if such was the law, he would, of course, bear the commission, but he wished for a ruling on it. The point is of practical importance. So the case has bean taken as a test case. The Minister has agreed to pay the costs of both sides to get it determined.
In an ordinary case of compulsory acquisition, it has been the practice for many years for the owner to receive as compensation, not only the value of the land, but also the fees which he has to pay to his surveyor to prepare the claim: and this practice has been recognized by the Courts. But this present is not an ordinary case of compulsory acquisition. It is a special case under the "blight" provisions of the Town and Country Planning Act, 1962. This statute, in Section 143(2),expressly says that the compensation "shall not include any amount attributable to disturbance". It is said on behalf of the Minister that surveyor's fees are attributable to "disturbance" and are thus excluded. It is said on behalf of Judge Lee that they are not attributable to "disturbance" but are part of the general compensation awarded for compulsory acquisition.
In 1919 Parliament laid down the rules on which compensation was to be assessed for compulsory acquisition. These rules were re-enacted in 1961. By these provisions Parliament modified the system which had stood since 1845. It took away the 10 per cent. Which used to be allowed for the fact of the acquisition being compulsory. It left untouched the compensation for injurious affection and severance. Then it preserved these three heads of compensation:-
(1) "The value of the land". The owner is to receive the value of the land as in the open market between a willing vendor and a willing purchaser. It must be valued as at the date of the notice to treat.
(2)Compensation for "disturbance". The owner is to receive the personal loss sustained by him by reason of being disturbed in his possession. That is, by reason of having to vacate the premises. This includes such items as the cost of moving his furniture, altering his curtains, and also the surveyor's fees on getting another house, see Harvey v. Crawley Development Corporation. 1957, 1 Queen's Bench, p. 485.
(3)Compensation for "any other matter not directly based on the value of land". This includes, I think, the fees which the owner has to pay to his surveyor, valuer or agent to prepare his claim. Such fees and commission have always been allowed on a compulsory acquisition. This was clearly recognized in London County Council v. Tobin, 1959, 1 Weekly Law Reports, p. 354. It cannot properly be said to be due to "disturbance".It must come, therefore, under "any other matter".
In 1962, when giving compensation for "blighted" land, Parliament applied these rules but said that nothing was to be given for "disturbance". That means that item (2) above goes out. But item (3) remains. It follows that the owner can recover the fees payable to his surveyor and valuer to prepare his claim.
Mr. Glover argued that "disturbance" in Section 143 was not confined to the loss due to having to vacate the premises. It covered, he said, all damage directly consequent on the taking of the house under statutory powers and thus covered surveyor's fees in preparing the claim. He relied on the words used by this Court in Harvey v. Crawley Development Corporation. 1957, 1 Queen's Bench, p. 485. But those words must be read in their context. The Court was not concerned there to define "disturbance" precisely. The truth is that nearly all items of loss (over and above the value of the land) are due to being disturbed. Hence they are generically described as compensation for disturbance. But "there may be some admissible items of loss which are not naturally attributable to disturbance", see Hull & Humber Investment Co. v. Hull Corporation. 1965, 2 Weekly Law Reports at p. 170 by Lord Justice Pearson. Surveyor's fees in preparing the claim are some of these. They are not "disturbance" and are not excluded by Section 143(1)(b) of the 1962 Act.
In my opinion therefore the Lands Tribunal were correct in allowing Judge Lee the commission payable to the estate agents: and I would dismiss the appeal.
The cornerstone of Mr. Glover's argument for the Minister upon the meaning of "disturbance" in Section 143 (1)(b) of the Town and Country Planning Act, 1962, is the submission that by 1959, when the Town and Country Planning Act of that year, which contained a similar provision, was passed, the word "disturbance" had by judicial decision been sointerpreted and construed as to include all personal loss due to or caused by compulsory acquisition. Surveyor's fees, he argues, incurred by the landowner for advice upon and the preparation of a claim for compensation are a part of such personal loss and therefore fall within the "amount attribute able to disturbance" within the meaning of the section under consideration.
According to Mr. Glover, the only matters for consideration in the assessment of compensation are (i) the value of the land, (ii) injurious affection, (iii) severance and (iv) disturbance. And there is nothing else.
The opposite contention put forward by Mr. Kerrigan is that disturbance is limited to such personal loss as is caused by the fact of having to vacate the premises. It is pointed out that section 2(6) of the Acquisition of land (Assessment of Compensation) Act, 1919, (now replaced by Section 5(6) of the land Compensation Act, 1961) provides that "the provisions of Rule (2) shall not affect...
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