Shonleigh Nominees Ltd v HM Attorney General, at the Relation of Hampshire County Council
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Hodson,Viscount Dilhorne,Lord Salmon |
| Judgment Date | 30 January 1974 |
| Judgment citation (vLex) | [1974] UKHL J0130-3 |
| Date | 30 January 1974 |
| Court | House of Lords |
[1974] UKHL J0130-3
House of Lords
Lord Reid
Lord Morris of Borth-y-Gest
Lord Hodson
Viscount Dilhorne
Lord Salmon
Upon Report from the Appellate Committee, to whom was referred the Cause Shonleigh Nominees Limited against H.M. Attorney General, at the relation of Hampshire County Council, that the Committee had heard Counsel as well on Wednesday the 28th and Thursday the 29th, days of November last, as on Monday the 3d day of December last, upon the Petition and Appeal of Shonleigh Nominees Limited, whose registered office is situate at 44 Stonebridge Park, London, N.W.10, 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 8th of February 1972, might be reviewed before Her Majesty the Queen in Her Court of Parliament, and that the said Order 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 Her Majesty's Attorney General, at the relation of Hampshire County Council, 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 8th day of February 1972, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
For the reasons given by my noble and learned friend, Viscount Dilhorne, I would dismiss this appeal.
My Lords,
The Appellants are the beneficial owners of land known as Thruxton Airfield at Thruxton in Hampshire. They purchased the land in 1966 from a company called Thruxton Investments Ltd. That Company bought the land from the Secretary of State for Air. The land was conveyed by the Secretary of State to Thruxton Investments Ltd. by a conveyance made on the 2nd September, 1959. It was sold as an airfield that was capable of civilian use. The conveyance recited that the Secretary of State was the estate owner on behalf of Her Majesty in respect of the fee simple absolute in possession and that subject as mentioned the property conveyed was free from incumbrances. The vendor, as trustee and in exercise of his statutory and other powers, conveyed the land together with certain buildings and constructions and with the benefit of certain rights easements and restrictive covenants and with the benefit of but subject to certain leases affecting the land. In respect of a certain entrance way to the land there was an express exception to the effect that the land was sold subject to a right of way for the owner or occupier of some adjoining land but otherwise there was no exception in regard to any right of way of a public or private nature.
The Respondents assert, however, that there was and is a public right of way across the land. This the Appellants deny. They say that there never was such a right. There has not yet been any adjudication as to this matter.
Prior to the last war the land appears to have been farm land. Early in the last war the land was requisitioned with a view to its being converted into and used as an airfield. Later, by a conveyance made on the 9th October, 1943, the Secretary of State for Air bought the land. The conveyance recited that the vendor was seised of the property for a legal estate in fee simple absolute in possession and that the Secretary of State had agreed to purchase the property for the like estate in possession free from incumbrances. There was no reference to the existence of any public right of way. The Appellants assert that title deeds to the land going back to the year 1921 have been examined and that in none of them is there any reference to any right of way. There are plans which show that a barn was previously in position towards the centre of the land in question and which show that there was a roadway or metallic track leading to the barn and continuing past it. The plans do not of themselves show whether or not anyone apart from the owner or occupier of the land or barn had any right to use or pass along the roadway or track. The same observation applies to the ordnance survey map which it is said before the last war showed an unmetalled road or track.
After the land came into the possession of the Secretary of State the airfield was constructed. It was opened in 1941. The airfield was then used as such during the last war. Since 1946 it has been duly licensed as a civil airfield. It has been used as a civil airfield. Furthermore, a track running round it has been used for motor-racing.
If there ever was a public right of way across the land (the alleged route of which would cross one or more of the now existing runways of the airfield) it is common ground ( a) that an order made in 1942 under the General Defence Regulations would have had the effect of preventing any use being made of the right of way and ( b) that such prevention would not have operated any later than the end of the year 1960.
It appears that some of those who live in the vicinity of Thruxton Airfield view the motor racing activities with disfavour. In 1968 a local resident asserted the existence of a public right of way across the land and proceeded to assert and exercise a right to use it. An interlocutory injunction was obtained against him: but no hearing involving a full investigation of the claim resulted. The next development was that on the 16th April, 1969, the Hampshire County Council, who are the Highway Authority, commenced proceedings against the Appellants. When Thruxton Investments Ltd. bought Thruxton Airfield from the Secretary of State in 1959 it was a condition of the sale that, having regard to section 14 of the Defence Act, 1842, a copy or abstract of the Conveyance of the 9th October, 1943, (i.e. the assurance of the property to the Secretary of State) would be furnished and that no further abstract should be required: the purchaser was to admit the title of the Secretary of State to the property free from incumbrances (except as mentioned) without requisition or enquiry. The Secretary of State sold and conveyed as trustee.
By the proceedings which they commenced the Hampshire County Council sought a declaration that:
"upon the true construction of the Defence Act 1842 or otherwise that in the events that have happened all or any right of the public to use as a highway a roadway or track formerly crossing the land of the Defendant Company at Thruxton in Hampshire known or formerly known as Thruxton Airfield are still exercisable."
Two questions then arose. They were considered on the hearing of a summons by the Appellants to strike out the originating summons of the Hampshire County Council. One of these questions was whether the County Council could in legal proceedings assert and protect the rights of the public to highways without joining the Attorney-General. The other was whether the issue raised in the proceedings was not purely hypothetical. If the Appellants were right in their contention that there never had been a right of way then the construction of the Defence Act, 1842, would not arise. If, on the other hand, the provisions of the Defence Act would have the result that even if there had been a right of way it would no longer continue after the conveyance in 1959 then the time and expense involved in ascertaining whether there had been a public right of way would all have been wasted. It was and is common ground that if there had been a public right of way its existence and continuance would not be affected by the circumstance that there was a suspension of its existence as a consequence of an order made under the Defence Regulations: if there had been a public right of way it would still exist apart from the effect of the Defence Act, 1842. As to the first question, the Court ordered that the originating summons would be struck out unless the Attorney-General gave his fiat. As to the second question the conclusion of the Court was that as a decision on the construction of the Defence Act would be decisive of the dispute between the parties it would not be appropriate to strike out the originating summons.
The Attorney-General did give his fiat and the proceedings continued in his name at the relation of the Hampshire County Council. It follows that the proceedings continued on the assumed basis that before 1959 there was a public right of way which (though temporarily non-exercisable during the period covered by an order made under the Defence Regulations) would still be in existence unless the provisions of the Defence Act produced a contrary result.
The Defence Act of 1842, was an Act to consolidate and amend "the laws relating to the services of the Ordnance Department, and the vesting and purchase of Lands and Hereditaments for those Services, and for the Defence and Security of the Realm." There had been Acts in the years 1804, 1821, 1822 and 1832. In the 1842 Act some sections dealt with the acquisition of lands (referred to as messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, or hereditaments) or of leases of lands: some sections dealt with the disposal of lands. There is no logical sequence in the arrangement of the various sections. Nor, as a careful reading of...
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