Smith v East Elloe Rural District Council

JurisdictionUK Non-devolved
JudgeViscount Simonds,Lord Morton of Henryton,Lord Reid,Lord Radcliffe,Lord Somervell of Harrow
Judgment Date26 March 1956
Judgment citation (vLex)[1956] UKHL J0326-3
Date26 March 1956
CourtHouse of Lords
Smith
and
East Elloe Rural District Council and Others

[1956] UKHL J0326-3

Viscount Simonds

Lord Morton of Henryton

Lord Reid

Lord Radcliffe

Lord Somervell of Harrow

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Smith against East Elloe Rural District Council and others, that the Committee had heard Counsel, as well on Tuesday the 21st, as on Wednesday the 22d and Thursday the 23d, days of February last, upon the Petition and Appeal of Kathleen Rose Smith (Widow), of 11 The Crescent, Norwich, in the County of Norfolk, 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 4th of March 1955, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or 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 the East Elloe Rural District Council, John Cecil Pywell and the Ministry of Housing and Local Government, 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 4th day of March 1955, complained of in the said Appeal, be, and the same is hereby, Discharged except as to Costs, and that the Order of the Queen's Bench Division of the High Court of Justice of the 4th day of October 1954, thereby affirmed, be, and the same is hereby. Discharged except as to Costs: And it is further Ordered, That the Writ of Summons be struck out except as regards the Defendant Pywell, and except as regards Claims 3, 5, 6 and 7: And it is further Ordered, That there be no Order as to Costs in this House: And it is also 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.

Viscount Simonds

My Lords,

1

On the 6th July, 1954, the Appellant, Kathleen Rose Smith, issued a writ against the East Elloe Rural District Council, Mr. Pywell, the Clerk to that Council, and the Ministry of Health, whose functions and obligations were subsequently transferred to the Ministry of Housing and Local Government, claiming as against the Council, ( a) damages for trespass to the Appellant's land at Hallgate, Holbeach, in the County of Lincoln, ( b) an injunction against further trespass, and ( c) a declaration that a certain Compulsory Purchase Order dated the 27th August, 1948, was "wrongfully made and in bad faith"; against the Ministry of Health a declaration that the said Order "was wrongfully confirmed … and in bad faith"; against the Ministry of Housing and Local Government that "the said compulsory purchase order and confirmation of the same are in bad faith"; and against Pywell a declaration that "he knowingly acted wrongfully and in bad faith procuring the said Order and confirmation of the same"; and as against all the Defendants further or other relief and damages. The Ministry of Health is no longer a party to the proceedings; the present Respondents are the Council, Pywell and the Ministry of Housing and Local Government.

2

All the Respondents entered conditional appearances to the writ and then applied to the Master in Chambers to have the writ set aside upon the ground that "the writ of summons in this action is invalid for lack of jurisdiction, it being provided by paragraph 16 of Part IV of the First Schedule to the Acquisition of Land (Authorisation Procedure) Act, 1946, that save by the procedure specified in the said Schedule, a compulsory purchase order confirmed in accordance with the provisions of the said Act (as was here the case) shall not, either before or after it has been confirmed, be questioned in any legal proceedings whatsoever. By reason whereof this Honourable Court has no jurisdiction to grant the relief sought against the said Defendants". Two summonses in similar terms were in fact taken out, one by the two Ministries, the other by the Council and their Clerk, but nothing at this stage of my Opinion turns on it.

3

Orders as asked by the summonses having been made by the Master and an appeal from them having been dismissed by the Judge in Chambers, an appeal was taken to the Court of Appeal. That Court in turn dismissed the appeal. It is clear from the judgment of the Court, which was delivered by Lord Justice Parker, that the main question there argued was on a point of construction of the Schedule which was in the proceedings before this House relegated to the background. Before your Lordships the argument was almost wholly devoted to what was justifiably described by leading counsel for the Appellant as a matter of great public importance.

4

In my statement of the application to strike out the writ I have indicated the nature of the question. I must now be more specific.

5

The Compulsory Purchase Order challenged in these proceedings was made by the Respondent Council on the 26th August, 1948, and authorised them subject to its provisions to acquire compulsorily a house and some 8 1/2 acres of land described in the Schedule thereto of which the Appellant was the owner. The statutory public local enquiry having been duly held, the Minister of Health confirmed the Order on the 29th November, 1948, by an Order cited as the East Elloe (Holbeach) Housing Confirmation Order, 1948, which was duly advertised on the 13th and 20th December. 1948. A notice to treat and a notice of entry were duly served on the Appellant, and in due course the compulsory purchase price for the said house and land was fixed by the Lands Tribunal at £3,000. The Respondent Council caused a firm of builders to demolish the house and to erect on its site and on the said land a number of houses. The writ in this action was, as I have said, issued on the 6th July, 1954.

6

I must now turn to a consideration of the provisions of the Acquisition of Land (Authorisation Procedure) Act, 1946. But I must preface it by two observations. First, I would remind your Lordships that the Act is applicable to a great variety of transactions, in which a large or small area of land is required by a national or local authority for public purposes, and, secondly, I do not forget that this Act is the last example of a long series of similar enactments, in which by one provision or another Parliament has sought to give finality and security from challenge to compulsory acquisitions of land. I have not myself been able to get any assistance from a comparison of the language of this enactment with that of its predecessors. Learned counsel on both sides craved such a comparison in aid. I shall be doing no injustice if I say it helps neither of them and base my opinion on the very words of the Act.

7

Section 1, subsection (1) of the Act enacts that "The authorisation of any compulsory purchase of land—( a) by a local authority where, apart from this Act, power to authorise the authority to purchase land compulsorily is conferred by or under any enactment contained in a public general Act and in force immediately before the commencement of this Act, other than any enactment specified in subsection (4) of this section; ( b) .… shall, subject to the provisions of this and the next following section, be conferred by an order (in this Act referred to as a "compulsory purchase order") in accordance with the provisions of the First Schedule to this Act (being provisions which, subject to certain adaptations, modifications and exceptions, correspond with provisions as to the authorisation of the compulsory purchase of land of the Local Government Act, 1933)". Sub-section (2) of section 1 made provision for a special procedure in relation to the purchase of land to which Part III of the First Schedule of the Act applied. This does not affect the land the subject of this action. It has been observed that the language of subsection (1) is somewhat involved, but there appears to be no doubt that a local authority authorises its own authority to make a purchase.

8

I need refer to no other section of the Act and come to the first Schedule, which, after making the familiar provisions in regard to advertisements, notices to persons affected, objections, local enquiry and confirmation, provides as follows by paragraphs 15 and 16 of Part IV.

"15. (1) If any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of a compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in subsection (1) of section one of this Act, or if any person aggrieved by a compulsory purchase order or a certificate under Part III of this Schedule desires to question the validity thereof on the ground that any requirement of this Act or of any regulation made thereunder has not been complied with in relation to the order or certificate, he may, within six weeks from the date on which notice of the confirmation or making of the order or of the giving of the certificate is first published in accordance with the provisions of this Schedule in that behalf, make an application to the High Court, and on such application the Court—

( a) may by interim order suspend the operation of the compulsory purchase order or any provision contained therein, or of the certificate, either generally or in so far as it affects any property of the applicant, until the final determination of the proceedings;

( b) if satisfied that the authorisation granted...

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