Prasad v Wolverhampton Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE FOX,LORD JUSTICE KERR |
| Judgment Date | 21 February 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0221-1 |
| Docket Number | 83/0079 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 1983 |
and
[1983] EWCA Civ J0221-1
Lord Justice Stephenson
Lord Justice Fox
and
Lord Justice Kerr
In The Matter of a Notice of Reference
83/0079
REF:141/1980
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
(W.H. REES ESQ., F.R.I.C.S.)
Royal Courts of Justice
THE MALE CLAIMANT (Appellant) appeared in person, representing both claimants)
MR. ALAN FLETCHER (instructed by Messrs. Sharpe Pritchard & Co, Solicitors, London WC2) appeared on behalf of the Respondents (Respondents)
MR. SIMON BROWN (instructed by The Treasury Solicitor) appeared as Amicus Curiae
,
,
I have stated the nature of this appeal and the facts of the case in the judgment which I gave, with the agreement of my Lords, on 10th November 1982. I incorporate what I then said at pp.1 to 5 A of the transcript, without repeating it, in the judgment which I now give.
We then rejected all the appellants' grounds of appeal save one, and we adjourned the hearing of the appeal on the one ground only, as Dr. Prasad was appearing in person for his wife and himself without legal assistance or qualifications and it appeared to us and to Mr. Fletcher on behalf of the respondent council to raise a point of law which had been the subject of conflicting decisions in England and Scotland and which called for the help of an amicus curiae.
This remaining head of claim is made under s.63 of the Housing Act 1957, now replaced by ss.37 and 38 of the Land Compensation Act, 1973, the statute which now deals with what it calls "disturbance payments" as follows:
"37.—(1) Where a person is displaced from any land in consequence of—
(a) the acquisition of the land by an authority possessing compulsory purchase powers;
(b) the making, passing or acceptance of a housing order, resolution or undertaking in respect of a house or building on the land;
(c) where the land has been previously acquired by an authority possessing compulsory purchase powers or appropriated by a local authority and is for the time being held by the authority for the purposes for which it was acquired or appropriated, the carrying out of redevelopment on the land,
he shall, subject to the provisions of this section be entitled to receive a payment (hereafter referred to as a 'disturbance payment') from the acquiring authority, the authority who made the order, passed the resolution or accepted the undertaking or the authority carrying out the redevelopment, as the case may be.
(2) A person shall not be entitled to a disturbance payment—
(a) in any case, unless he is in lawful possession of the land from which he is displaced;
(b) in a case within subsection (1) (a) above, unless either—
(i) he has no interest in the land for the acquisition or extinguishment of which he is (or if the acquisition or extinguishment were compulsory would be) entitled to compensation under any other enactment; or
(ii) he has such an interest as aforesaid but the compensation is subject to a site value provision and he is not (or if the acquisition were compulsory would not be) entitled in respect of that acquisition to an owner-occupier's supplement;
(c) in a case within subsection (1)(b) above, if he is entitled to an owner-occupier's supplement by reference to the order, resolution or undertaking.
In this subsection 'site value provision' means section 29 (2) or 59 (2) of the Housing Act 1957, section 20 of the Housing (Scotland) Act 1966 or section 10 of the Housing (Scotland) Act 1969 and 'owner-occupier's supplement' means a payment under Part II of Schedule 2 to the said Act of 1957, Schedule 5 to the Housing Act 1969 or sections 18 to 20 of the Housing (Scotland) Act 1969.
(2) For the purposes of subsection (1) above a person shall not be treated as displaced in consequence of any such acquisition or redevelopment as is mentioned in paragraph (a) or (c) of that subsection unless he was in lawful possession of the land—
(a) in the case of land acquired under a compulsory purchase order, at the time when notice was first published of the making of the compulsory purchase order prior to its submission for confirmation or, where the order did not require confirmation, of the preparation of the order in draft;
(b) in the case of land acquired under an Act specifying the land as subject to compulsory acquisition, at the time when the provisions of the Bill for that Act specifying the land were first published;
(c) in the case of land acquired by agreement, at the time when the agreement was made;
and a person shall not be treated as displaced in consequence of any such order, resolution or undertaking as is mentioned in paragraph (b) of that subsection unless he was in lawful possession as aforesaid at the time when the order was made, the resolution was passed or the undertaking was accepted".
"(6) A disturbance payment shall carry interest, at the rate for the time being prescribed under section 32 of the Land Compensation Act 1961 or, in Scotland, section 40 of the Land Compensation (Scotland) Act 1963, from the date of displacement until payment".
"(10) This section applies if the date of displacement is on or after 17th October 1972".
"38—(1) The amount of a disturbance payment shall be equal to—
(a) the reasonable expenses of the person entitled to the payment in removing from the land from which he is displaced; and
(b) if he was carrying on a trade or business on that land, the loss he will sustain by reason of the disturbance of that trade or business consequent upon his having to quit the land.
(2) In estimating the loss of any person for the purposes of subsection (1) (b) above, regard shall be had to the period for which the land occupied by him may reasonably have been expected to be available for the purposes of his trade or business and to the availability of other land suitable for that purpose.
This subsection has effect subject to section 46 (7) below".
"(4) Any dispute as to the amount of a disturbance payment shall be referred to and determined by the Lands Tribunal or, in Scotland, the Lands Tribunal for Scotland."
The items of this claim are not precisely defined either in Dr. Prasad's notice of appeal, paragraph 3,p.l, or in his so-called pleadings, paragraph (9), p.9.
But it is the sort of loss specified in s.38 (1)—expenses of moving and loss of patients and consequent financial loss—for which Dr. Prasad seeks compensation. In his claim to the Lands Tribunal he put the amount of that loss at no less than £39,000. That was item 5 of his claim; the Lands Tribunal dealt with that at p.5 of the decision in this way:
"With regard to item 5, Mr. Powis' evidence that Dr. Prasad vacated the subject premises at the end of 1979"—and if one looks back at page 2 of the decision it looks as if that means October 1979—"before he had received notice to treat, was not contested. Having regard to that, the acquiring authority's solicitor (Mr. Webb) submitted that the claimant was not entitled to compensation for disturbance and in that connection he referred me to Walters and Others v. South Glamorgan County Council (1976) 238 The Estates Gazette 733 and M. Bloom (Kosher) & Son Ltd., v. Tower Hamlets London Borough (1978)"—the case was in fact decided in 1977—"247 The Estates Gazette 1091. The claimant said that he had had to move because large numbers of houses close to his surgery had been demolished and he lost his patients in consequence. I accept the submission made by the acquiring authority's solicitor and determine that no compensation is payable in respect of item 5 of the claim; in any event the figure of £39,000 is quite unsupported".
Mr. Fletcher, I think ultimately conceded that that was simply a conclusion by the Member that the claim was bad in law, not that it was unsupported by any facts. He was following the authorities cited to him and indicating that if he had felt able to depart from them he could not think that the appellants' loss and expenses before the notice to treat could come to anything like £39,000.
The Council acted under Part III of the Housing Act 1957. The relevant provisions of that Part are:
S.42:"(1) Where a local authority….. are satisfied as respects any area in their district—(a) that the houses in that area are unfit for human habitation……. the authority—shall cause that area to be defined on a map…and shall pass a resolution declaring the area so defined to be a clearance area, that is to say, an area to be cleared of all buildings in accordance with the subsequent provisions of this Part of this Act…."
S.43:"(1) So soon as may be after a local authority have declared any area to be a clearance area, they shall, subject to and in accordance with the provisions of this Part of this Act, proceed to secure the clearance of the area in one or other of the following ways, or partly in one of those ways and partly in the other of them, that is to say—
(a) by making one or more orders (in this Act referred to as 'clearance orders' for the demolition of the buildings in the area; or
(b) by purchasing the land comprised in the area and themselves undertaking, or otherwise securing, the demolition of the buildings on that land".
S.47:"(1) Subject to the provisions of the next following section, a local authority who have under this. Part of this Act purchased any land comprised in, or surrounded by, or adjoining, a clearance area shall, so soon as may be, cause every building thereon to be vacated and shall deal with that land in one or other...
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