Tithe Redemption Commission v Runcorn Urban District Council
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DENNING,LORD JUSTICE JENKINS |
| Judgment Date | 23 February 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0223-1 |
| Date | 23 February 1954 |
| Court | Court of Appeal |
[1954] EWCA Civ J0223-1
In the Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Sir Raymond Everched)
Lord Justice Denning
Lord Justice Jenkins
THE HON. CHARLES RUSSELL, Q.C., and MR. R. E. MEGARRY (instructed by Ponsford & Devenish, agents for Mr. J. J. Lewis, Clark to Runcorn U.D.C.) appeared for the appellants (first defendants).
MR. GEOFFREY CROSS, Q.C. and MR. W.F. WAITE( instructed by the Solicitor, Tithe Redemption Commission) appeared for the respondents (plaintiffs).
MR. R.L. STONE (instructed by Mr. J.W Ridsdale) appeared for the respondents, (second defendants).
The short question in this appeal is whether the appellants, the Runcorn Urban District Council, are liable to the respondents, the Tithe Redemption Commission, for an amount of tithe redemption annuity chargeable under the Tithe Act 1936. The amount claimed of a larger annual sum that part (and the correctness of the apportionment is not In dispute) which is attributable to certain highways now forming part of a larger area within the district of the Runcorn Counoil. The larger area la, apart from the highways, admittedly in the exclusive ownership of the respondents, Imperial Chemical Industries Limited.
The relevant history of this area in Runcorn and the legislative history which preceded the passing of the Tithe Act and the imposition of tithe rentcharge annuities for securing the compensation payment in extinguishment of the former tithe rentcharges, have been fully stated in an affidavit sworn in these proceedings by the Secretary of the plaintiff Commission, and ore not material to be set forth in this Judgment.
We ware informed that the present action was a test action to obtain the opinion of the Court upon the question whether, having regard to the language of the Tithe Act and in particular section 17 thereof, a highway authority in whom a highway has become vented by virtue of a statute has an interest in land of the kind or quality sufficient to render it liable to a charge in respect of tithe redemption annuity.
The Inquiry i s limited to cases in which the right of the highway authority to the highway depends on the operation of one or other of the statutes vesting highways in local authorities, as distinct from cases where such vesting has been by way of a grant of the soil of the highway in an ordinary conveyancing sense.
In the present action the vesting of the relevant highways took effect pursuant to section 29 of the Local Government Act 1929, an Act which was passed and came into operation afterthe coming into effect of the Law of Property Act 1925, the settled Land Act 1925, and the other statutes compendiously referred to as the 1923 property legislation.
As will presently appear, it is this last mentioned fact which to my mind gives rise to the real difficulty in the case.
It is conceded that the liability of the appellants depends on the answer to the question: Are the Runcorn Urban District Council owners of the relevant highways within the meaning of section 17 of the Tithe Act 1938?
So far as is relevant, sub-section (1) of that section provides as follows: "the person who is to be deemed for the purposes of this Act to be the owner of land shall be the estate owner in respect of the fee simple thereof". Sub-section (3) says that " 'estate owner' has the same meaning as in the Law of Property Act 1925".
That definition necessarily introduces, by reference, the definitions in the Law of Property Act 1925, section 205(1) of which includes the following; in paragraph (v) "Estate owner' means the owner of a legal estate", and in paragraph (x) "Legal estates' mean the estates, interests and charges, in or over land (subsisting or created at law) which are by this Act authorised to subsist or to be created as legal estates".
The result therefore (and so far there Is no difference between Mr. Russell, on the one hand, and Mr. Gross, on the other) Is that, if the plaintiffs are entitled to succeed, they must show that the Runcorn Urban District Council are as regards the relevant highways, the owners of a legal estate In fee simple.
In order to answer that apparently simple question, it will be necessary for me in due course to refer to other parts of the Law of Property Act 1925 for, as is well known, since the passing of that Act only certain kinds of interests in land are capable of subsisting as legal estates. But I must first ascertain what, by virtue of the relevant statute, hasbeen "vested" (and I put that word in quotation narks) In the Council In respect of these roads. As Z have already said, that vesting took effect by virtue of section 20 of the Local Government Act 1929, which, so far as is relevant, provides as follows: and all roads in relation to which they have" the functions previously mentioned "and the materials thereof and all drains belonging thereof shall vest In the "named council.
It is to be noted that the formula that I have quoted was incorporated by Parliament in the Act of 1929, passed after 1st January 1926, when Parliament must be taken to have been aware of the terms and effect of its previous enactments of 1925. The formula is not novel. The same formula is found in many previous statutes in pari materis; for example, the Public Health Act, 1875. prima facie, therefore, Parliament in 1929, as regards the vesting of highways, must have Intended the same effect as had been produced by the earlier and similar legislation. I have thought it desirable to state that apparently obvious fact because one of the peculiarities of this case is that, on one view of the matter, the situation of highway authorities via-a-vis tithe rentcharge annuities may, as a result of property legislation, be different according as the vesting took place before or after 1st January 1926. If that view were right, the result would be no doubt surprising; but, if it is so, it has revealed a curious and no doubt unpremeditated by-product of the 1925 property legislation.
In those circumstances i t la desirable, in my judgment, first, to inquire what was the effect In law of the vesting by virtue of such a formula as Is found in the 1929 Act, according to the old law of the land before the 1925 legislation.
It has been Mr. Russell's main argument that the effect was not to vest in or confer upon the highway authority a few simple or legal estate In the highway of one of the kinds well recognised and understood by the old land law, but rather a special and peculiar species of proprietorship, having nodoubt attributes common to the old estates In land, but not being In truth such an estates conferring that la to say a special right to the surface and en undefined area below and above the surface with all such ancillary rights and powers as were requisite for the authority in the performance of its statutory duties, but no more; in any event not conferring an estate or interest in the land an known and understood to the general law. Support for this view was invoked particularly from the language of Mr. Justice Farwell in the case of Hertfordshire County Council v. Lea Hand Limited and another (98 Justice of the pence, page 109 at page 112): "It is quite unnecessary for me to refer in detail to any of the many authorities which relate to this question, because it is now clearly established, I think beyond all doubt, that a highroad does vest in the road authority. It does not vest in fee simple; that at any rate is plain. The right of the original owner of the land remains untouched, and he remains the owner in fee simple of the land, but subject to these being vested in the road authority the actual road itself and so much of the coil as is necessary to enable the road authority to perform its statutory duties of repairing and maintaining the road as a highway.
If this view is correct, then Kr. Russell advances, as the necessary consequence, the attractive conclusion that all the difficulties are circumvented. The highway authority is not and never was the owner of the legal estate for the purposes of the Tithe Act 1936 or any analogous statute. In particular, its interest is altogether outside the scope, and conveyancing purview of the property legislation of 1925.
I have been unable to accept this premise, notwithstanding the language I have quoted from Mr. Justice Farwell's Judgment; for in my judgment we are bound by authority to hold that a vesting, according to a formula such as that of the 1929 Act, did operate to confer upon a highway authority In respect of some port of the land, which although undefinite in extent in-cluded the essential surface (that is, essential for the purpose of tithe, tithe rentcharges and the Tithe Redemption Act), a legal estate known to the law, namely, a fee simple determinable on the happening of a particular event, the event of the land in question ceasing to be used as a highway.
This, in my Judgment, la the result of a number of eases, beginning (perhaps somewhat uncertainly) with Cover dale v. Charlton (4 Queen's Bench Division, page 104) and ending with Foley's Charity Trustees v. Dudley Corporation (1910 King's Bench Division, page 317). I propose to refer to three of those oases, namely: Rolls v. Vestry of st. George the Martyr, Routhwark (14 Chancery Division, page 785); The Mayor of Tunbridge wells v. Baird and Others (1898 Appeal Cases, page 434); and Foley's Charity Trustees v. Dudley Corporation, which I have already mentioned. These cases, in ray view, and particularly the last, constitute authority binding on this court that the highway authority acquired, by virtue of what I will call the statutory vesting of a highway In the form noticed, a legal estate, that is, a fee simple...
To continue reading
Request your trial
- Wiltshire County Council v Frazer
-
R (Smith) v The Land Registry
...and scrapings appear to be whatever is used to make the surface of the road, such as tarmac, gravel, sand etc.. 12 In Tithe Redemption Society v Runcorn UDC [1954] Ch 383, relied on by Mr David Watkinson who appears for Mr Smith, this court considered the effect of a provision in s 29 of th......
-
Southwark London Borough Council and Another v Transport for London
...and repair it, and to supervise its safe operation. That lower slice was famously labelled “the top two spits” in Tithe Redemption Commission v Runcorn Urban District Council [1954] 1 Ch 383 at 407. A spit is a spade's depth. Although colourful, that phrase says nothing about the necessary ......
-
Bybrook Barn Garden Centre Ltd v Kent County Council
... ... Industrial Society Ltd v Norton-Radstock Urban District CouncilELR((1968) Ch 605) by which, ... ...
-
The Lands of the Lord
...(Smith) v The Land Registry (Peterborough Office) [2010] EWCA Civ 200. 25 Tithe Redemption Commissioners v Runcorn Urban District Council [1954] Ch 383; but see Sussex Investments Ltd v Cornell (1993) The Times , 29 July, CA, considered in Secretary of State for the Environment, Transport a......
-
Highway Authority
...County Council v Frazer , 8 it 4 This provision was first introduced by Public Health Act 1848, s 68. 5 See 7.3.1. 6 [1896] AC 434. 7 [1954] 2 WLR 518. 8 (1984) 47 P&CR 69. was held that the highway authority’s ownership of the surface enabled it to bring an action for possession against sq......
-
Public Rights of Way
...s 263(2). See ss 266 and 267. 112 Meaning the top two spade depths; see Tithe Redemption Commissioners v Runcorn Urban District Council [1954] Ch 383 at 407 per Lord Denning. 113 Tunbridge Wells Corporation v Baird [1896] AC 434 at 442. 544 Planning Law: A Practitioner’s Handbook 27.60 This......
-
Table of Cases
...[2015] PTSR 837, [2015] 2 P & CR 12 352, 360, 361, 363, 364, 365, 366 Tithe Redemption Commissioners v Runcorn Urban District Council [1954] Ch 383, [1954] 2 WLR 518, [1954] 1 All ER 653, CA 543, 569, 574 Trail Riders Fellowship v Secretary of State for the Environment, Food and Rural Affai......