London Corporation v Cusack-Smith
| Jurisdiction | UK Non-devolved |
| Judge | Lord Oaksey,Lord Porter,Lord Reid,Lord Tucker,Lord Keith of Avonholm |
| Judgment Date | 20 January 1955 |
| Judgment citation (vLex) | [1955] UKHL J0120-2 |
| Date | 20 January 1955 |
| Court | House of Lords |
[1955] UKHL J0120-2
Lord Oaksey
Lord Porter
Lord Reid
Lord Tucker
Lord Keith of Avonholm
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Corporation of London against Cusack-Smith and others, that the Committee had heard Counsel, as well on Tuesday the 16th, as on Wednesday the 17th, Thursday the 18th and Monday the 22d, days of November last, upon the Petition and Appeal of the Corporation of London, 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 15th of December 1953, 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 printed Case of Sir William Robert Dermot Joshua Cusack-Smith (Baronet) and Elizabeth Dora Allworth (Widow), the Trustees of the Real Estate of Alexander Jones (deceased); and also upon the printed Case of the Minister of Housing and Local Government (who was, in pursuance of an Order of this House, of the 5th day of May last, added as a Respondent in the Appeal), 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 15th day of December 1953, in part complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Divisional Court of the Queen's Bench Division of the 29th day of April 1953, thereby set aside, be, and the same is hereby, Restored: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
In this case the Appellants are appealing from a judgment of the Court of Appeal in England dated the 15th day of December, 1953, whereby the Court allowed an appeal by the first-named Respondents (hereinafter called "the Jones trustees") from a judgment of a Divisional Court of the Queen's Bench Division dated the 29th day of April, 1953, for an order of Certiorari quashing a decision by the second-named Respondent (hereinafter called "the Minister") dated the 31st day of December, 1952, and made pursuant to the Town and Country Planning Act, 1947, 10 & 11 Geo. VI c. 51 (hereinafter called "the Act").
The issue in this appeal is whether the Jones trustees who are the freeholders of certain premises known as Number 69 Ludgate Hill in the City of London (hereinafter called "the said premises") are "owners" within the meaning of subsection (1) of section 19 of the Act.
The immediately relevant provisions of the Act are as follows:—
Section 19 (1) "Where permission to develop any land is refused, whether by the local planning authority or by the Minister, on an application in that behalf made under this Part of this Act, or is granted by that authority or by the Minister subject to conditions, then if any owner of the land claims—
( a) that the land has become incapable of reasonably beneficial use in its existing state; and
( b) in a case where permission to develop the land was granted as aforesaid subject to conditions, that the land cannot be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with those conditions;
( c) in any case, that the land cannot be rendered capable of reasonably beneficial use by the carrying out of any other development for which permission has been or is deemed to be granted under this Part of this Act, or for which the local planning authority or the Minister have undertaken to grant such permission,
he may, within the time and in the manner prescribed by regulations made under this Act, serve on the council of the county borough or county district in which the land is situated a notice (hereinafter referred to as a 'purchase notice') requiring that council to purchase his interest in the land in accordance with the provisions of this section."
Section 119 (1) "In this Act, except so far as the contrary is provided or the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say:—
* * * *
'land' means any corporeal hereditament, including a building as defined by this section, and in relation to the acquisition of land under Part IV of this Act includes any interest or right in or over land;
* * * *
'owner', in relation to any land, means, except in Part VI of this Act, a person, other than a mortgagee not in possession, who, whether in his own right or as trustee or agent for any other person, is entitled to receive the rack-rent of the land or, where the land is not let at a rack-rent, would be so entitled if it were so let, and, in Part VI of this Act, has the meaning assigned to it by section sixty-four of this Act; …"
The only question in the case is whether the definition of "owner" in section 119 is such as to prevent a freeholder who has let the premises at less than a rack rent from serving a purchase notice in respect of his interest in the land under section 19.
It is, however, I think, desirable to state in detail the devolution of the said premises.
The Jones trustees are trustees of the real estate of Alexander Jones deceased, and they are, and they or their predecessors in office as trustees of the said real estate at all material times have been, entitled in fee simple to the said premises as trustees as aforesaid.
By a lease (hereinafter called "the lease") dated the 29th day of September, 1873, the Commissioners of Sewers of the City of London, who were then freeholders of the said premises, demised them to Thomas Treloar for a term of eighty years from the said 29th day of September at a yearly rent of £350. By a conveyance dated the 26th day of May, 1874, the said Commissioners of Sewers conveyed the freehold reversion in the said premises immediately expectant upon the lease to the said Alexander Jones. On the 13th day of February, 1881, the said Alexander Jones died and on the 5th day of March, 1881. Probate of his Will was granted out of the Principal Probate Registry to predecessors in office of the Jones trustees.
By an Underlease (hereinafter called "the underlease") dated the 23rd day of May, 1922, the trustees of the said Thomas Treloar deceased sub-demised the said premises to Samuel Taylor Williamson and Eric Bryan Williamson for a term of eighty years less seven days from the 29th day of September, 1872, at an annual rent of £1,136. By an assignment dated the 2nd day of October, 1924, the said Samuel Taylor Williamson and Eric Bryan Williamson assigned the underlease to Eric Bryan Williamson and Cameron Matthew Walker.
By a lease dated the 23rd day of June, 1925 (hereinafter called "the lease of the reversion") the predecessors in office of the Jones trustees demised the freehold reversion in the said premises vested in them (but subject to and with the benefit of the lease) to Eric Bryan Williamson and Cameron Matthew Walker for a term of seventy-five years from the 29th day of September, 1924, at an annual rent of £750.
By an assignment dated the 19th day of February, 1940, the said Eric Bryan Williamson and Cameron Matthew Walker in consideration of the payment to them of £4.000 assigned the underlease to Hampton and Sons Ltd. (hereinafter called "Hamptons").
On the 10th day of May, 1941, the buildings comprised in the said premises were completely destroyed by enemy action. The annual rent of £750 due under the lease of the reversion was nevertheless duly paid until the 29th day of November, 1951.
By an assignment dated the 8th day of April, 1942, the personal representatives of the last surviving trustee of the said Thomas Treloar deceased in consideration of the payment to them of £4,000 assigned the lease to Hamptons.
On and after the 8th day of April, 1942, the position was that the lease, underlease and lease of the reversion had all become vested in Hamptons, while the freehold was vested in the predecessors in office of the Jones trustees.
By a letter dated the 9th day of February, 1950, and addressed to the Appellants Messieurs Gerald Eve and Company submitted an application on behalf of Hamptons as lessees for planning permission to rebuild the said premises. By a letter dated the 2nd day of May, 1950, addressed to Hamptons and a Refusal of Permission to Develop enclosed therewith the Appellants refused planning permission for the said development. The reason stated for refusal was that the proposed development would prejudice the new layout of the area of extensive war damage in which the said premises were situated, including the provision of a roundabout at the junction of Ludgate Hill. New Bridge Street. Fleet Street and Farringdon Street.
On the 17th day of August, 1950, Hamptons served notice on the Appellants under section 19 of the Act requiring the Appellants to purchase the lease of the Reversion, the Appellants being by virtue of section 114 (2) of the Act the proper recipients of such a notice. By a letter dated the 9th day of November, 1950, the Minister of Town and Country Planning confirmed the said purchase notice.
On the 27th day of November, 1951, Hamptons at the instance of the Appellants served on the Jones trustees a notice of retention under the Landlord and Tenant (War Damage) Acts, 1939 and 1941, in respect of the...
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