R v Minister of Housing and Local Government. ex parte Corporation of London
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL,LORD JUSTICE DENNING,LORD JUSTICE ROMER |
| Judgment Date | 15 December 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J1215-4 |
| Court | Court of Appeal |
| Date | 15 December 1953 |
[1953] EWCA Civ J1215-4
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Somervell
Lord Justice Denning and
Lord Justice Romer
MR H. HEACHCOTE-WILLIAMS, Q.C., and MR OLIVER LODGE (instructed by Messrs Box all & Box all) appeared on behalf of the Appellants (Trustees of Alexander Jones' Estate).
MR HAROLD B. WILLIAMS, Q.C. and MR DEREK WALKER-SMITH (instructed by The Comptroller and City Solicitor) appeared on behalf of the Respondents.
MR J.P.ASHWORTH (instructed by the Solicitor, Ministry of Health and the Solicitor, Ministry of Housing and Local Government) appeared as Counsel for the Minister of Housing and Local Government.
This is an appeal from a Judgment of the Divisional Court quashing an Order made by the Minister of Housing and Local Government. The Applicants were the Corporation of London. The Order of the Minister confirmed or purported to confirm a purchase notice served under section 19 of the down and Country Planning Act. 1947, in respect of the fee simple in No.69, Ludgate Hill. The present Appellants, the owners of the fee simple, opposed the application. Section 19 is dealing with cases in which, as a result of a refusal of permission to develop, either absolute or conditional, land is incapable of reasonably beneficial use. In such cases it gives any owner the right to serve a purchase notice on the Council of the County Borough or district. If this is confirmed by the Minister, as here, the Council are deemed to be authorised to acquire his interest in the land compulsorily.
The only question before us is whether the Appellants are "any owner" within the meaning of section 19 (1), the relevant parts of which I will now read; "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" — and that is particularised and developed in (b) and (c) which I do not think I need read — "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". Subsection 2 is: "Where a purchase notice is served on any council under this section, that council shall forthwith transmit a copy of the notice to theMinister, and subject to the following provisions of this section the Minister shall, if he is satisfied that the conditions specified in paragraphs (a) to (c) of the foregoing subsection are fulfilled, confirm the notice, and thereupon the council shall be deemed to be authorised to acquire the interest of the owner compulsorily in accordance with the provisions of Part IV of this Act, and to have served a notice to treat in respect thereof on such date as the Minister may direct".
In 1873 C., the thon freeholders leased the land to T. for 80 years at £350 per annum. This was, we were told, a ground leaso. At some date before 1925 the Appellants acquired the freehold reversion. In 1922 T's trustees, T. having died, sublet to W. at £1,136 a year for the remainder of the term less seven days. By a lease of 23rd. June, 1925, between the Appellants and W., the sub-lessee, the premises were let for 75 years at £750 a year. This was said to be concurrent with and with the benefit of the original lease which at that date had some 28 years to run. The result was that T's trustees paid the £350 to their sub-lessee; W. got an extension of his lease and would pay £400 more during the period of the 1873 lease, that is, the sub-rent less £350 plus £750. After 1953 he would pay £750 only. The premises were, completely destroyed by enemy action in May, 1941. W. had by this time assigned to Hamptons who continued to pay the £750 rent. In April, 1942, Hamptons obtained an assignment from T's trustees of the original leasehold interest. Thereafter there were two parties only, the Appellants and Hamptons, the 1873 lease being formally deleted from the Register by the Land Registry in 1951. Under section 12 of the 1947 Act permission to develop has to be obtained from the planning authority — in this case the Respondents. On the 9th. February, 1950, Hamptons applied for such permission, the development being the rebuilding of the destroyed premises. On the 2nd. May this was refused, the reason being' that under the Respondent's plan for this area the site in question was to be part of a roundabout.Hamptons thereupon served a purchase notice undated which was forwarded to the Minister on the 21st. August, 1950, on the 22nd. September the Minister caused a letter to be written to the Town Clerk of which I will read the second paragraph: "The Minister is satisfied that the land has become incapable of reasonably beneficial use in its existing state and, having regard to the fact that it is situated within the boundaries of the City of London Declaratory Order, and is affected by proposals for the comprehensive redevelopment of the surrounding area of extensive war damage, including the provision of a roundabout at Ludgate Circus, he does not consider that he would be justified in reversing the Common Council's decision of the 2nd. May, £1950, whereby permission to rebuild was refused, or in directing that permission should be granted for any other development". The writer went on to say that unless any of those entitled wished to be heard he would confirm the notice which ho did on 9th. November, 1951. The Appellants had no notice of these various steps. Hamptons interest was ultimately purchased for £71,000. On 27th. November, 1951, a notice of retention under section 10 of the Landlord & Tenant (War Damage) Act, 1939, was served by Hamptons on the Appellants. The effect of such a notice under section 10 is to relieve the tenant of rent and to impose on him a covenant to reinstate. It gives the landlord a right to claim the rent in whole or in part if the tenant fails to reinstate when it is practicable for him to do so. The notice of Retention was served according to the evidence on the procuration of the Corporation of London. The Corporation are, as will be seen, using their statutory powers to make the fulfillment of the covenant illegal. Whether in these circumstances they can maintain the non-pay ability of rent is not before us. It would seem a remarkable contention. On 24th March the Appellants asked for planning permission to erect a building similar to that destroyed. This was refused and the Appellants appealed to theMinister against this refusal and the appeal was dismissed. The Appellants on 1st, September, 1952, served a purchase notice. The Corporation, the present Respondents, contended that the Appellants were not owners. The Appellants submitted to the Minister, but do not submit to us, that the Minister was not concerned with the question of ownership. The Minister one imagines gratefully accepted this submission and on that basis confirmed the notice. If the Appellants are "any owner", then the confirmation stands. If, as the Divisional Court have held, they are not, it is a nullity. "Owner" is defined unless the context otherwise requires in section 119: "Owner", in relation to any land, means, except in Part VI of this Act; — and we are in concerned with Part III — "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 then there is a reference to Part VI which I do not think I need read. Then: "'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".
It was submitted to the Divisional Court and to this Court that the definition does not apply to section 19 because the context otherwise requires. The Divisional Court held that it did apply, and, as I have said, quashed the Minister's Order. The definition or a definition on similar lines is to be found in other Acts. It has come before the Court before. Its obscurity and difficulty is always common ground between the parties inter se and the Court. I will give an illustration. A. the freeholder lets to 3. at below the full value. B. may be an old servant or an impecunious friend. The lease is a quarterly one and there is no prohibition against sub-letting. In ( Truman Hanbury Buxton & Co, v. Kerslake 1894, 2 Queens' Bench, 774) premises were let and sub-let at a rent below the Rack-rent. The sub-lessee was held to be the owner under a definition similar to that with which we are concerned. Mr Justice Kennedy said: "The words of the section in our judgment, in the case of there being no one who in fact receives a rack-rent from the actual occupier, designate as 'owner' the person who ' rebus sic stantibus', that is to say, with the interests in the premises as they then are, would, if they were let to an occupier at a rack-rent, receive that rack-rent". If that case is right, then in the case I have put B. is the owner and A. is not. The leases in the Truman case were longer, but the decision was not based on...
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