Union Railways (North) Ltd and another v Kent County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Lord Justice Ward |
| Judgment Date | 01 May 2009 |
| Neutral Citation | [2009] EWCA Civ 363 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2008/1752 |
| Date | 01 May 2009 |
[2009] EWCA Civ 363
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
THE PRESIDENT & MR A J TROTT FRICS
ACQ/212/2005 & ACQ/29/2006
Before: Lord Justice Ward
Lord Justice Keene
Lord Justice Carnwath
Case No: C3/2008/1752
Michael Barnes QC & Barry Denyer-Green (instructed by Messrs. Barlow Lyde & Gilbert LLP) for the Appellant
Guy Roots QC & James Pereira (instructed by Messrs. Cripps Harries Hall) for the Respondents
Hearing dates: Wed 25th & Thurs 26th March, 2009
Carnwath LJ:
Background
In 2001 the Council, under compulsory powers, took possession of land owned by Blue Circle plc for the purposes of constructing a road. The line ran close to part of the proposed Channel Tunnel Railway Link (CTRL) at Ebbsfleet. For the purpose of constructing the CTRL, it was necessary for the Claimant Company to divert underground electricity cables owned and operated by Seeboard Plc. For this purpose the Company, so it is alleged, had previously acquired various property rights from Blue Circle, partly over land required for the road. Attempts to co-ordinate the two projects seem to have failed, for reasons which it is unnecessary to explore. The Company claims that, as a result of the implementation of the road project, it was unable to take advantage of these property rights, and the cables had to be temporarily diverted and then permanently laid across other land. The road is now built and in use.
Before the Lands Tribunal, the Company claimed, as statutory compensation, the additional cost of these diversion works, together with the cost of delay to the CTRL project, which it puts at about £11.4 million. The Council contests both the existence and nature of the alleged rights, and the scale of the alleged loss. But it also takes a preliminary point. Prior to taking possession under the compulsory purchase order, the Council had duly served notices to treat and notices of entry on Blue Circle, but not on the Company. The Council argues that, even if the Company had potentially compensatable interests in the acquired land, it has no claim to statutory compensation, no steps having been taken by the Council to acquire those interests pursuant to the compulsory purchase order. Its rights if any are governed by the common law.
In these circumstances the parties agreed two preliminary issues for determination by the Tribunal:
i) Does the Lands Tribunal have jurisdiction to determine a claim for compensation where no notice to treat has been served in respect of the interest claimed by a claimant either because the acquiring authority have omitted to serve such a notice or because the acquiring authority contend that they did not need to acquire the interest that the claimant contends that he held?
ii) Does the Lands Tribunal have jurisdiction to determine a claim for compensation where no notice to treat is served on a claimant and where the acquiring authority dispute the claimant's interest or title and/or his entitlement to compensation?”
In the light of the argument the Tribunal re-interpreted the issues as raising in effect three questions
“(a) Whether an acquiring authority is entitled, if it chooses, not to serve notice to treat on the owner of an interest in land that it is taking under its compulsory powers.
(b) Whether a claimant can make a reference to the Lands Tribunal if notice to treat has not been served on him.
(c) Whether the Lands Tribunal has jurisdiction to determine the question of entitlement to compensation.”
Its answers were respectively: (a) no, (b) yes, (c) yes. (c) is no longer in dispute.
The claimed interests
It is unnecessary for present purpose to go into the detail of the alleged interests. They are said to have been acquired from Blue Circle under agreements between the Secretary of State for Transport and Blue Circle, the benefit then being transferred by the Secretary of State to the Company. They are said to include:
i) an option exercisable against Blue Circle to acquire a long lease of the seven parcels, the freehold of which was acquired from Blue Circle by the Council,
ii) an easement exercisable against Blue Circle to lay underground electricity cables across that land,
iii) an option exercisable against Blue Circle to acquire the freehold of that land, and
iv) a licence which is said to have created some form of equitable interest over the same land.
For the purposes of the preliminary issue it is sufficient to focus attention on the options, since there is no doubt that such interests if they existed would have entitled their owners to the service of notice to treat. The licence may not have given rise to a compensatable interest at all (cf Frank Warr & Co Ltd v LCC [1904] 1KB 713), but, if it did, it raises the same issues in principle as the options. By contrast an easement does not give rise to a requirement to serve notice to treat. It may be overridden to the extent necessary to implement the statutory scheme, and compensation payable accordingly (under 1965 Act, s 10).
The distinction between an option and an easement is illustrated by Oppenheimer v. Minister of Transport [1942] 1 KB 242. The claimant owned an option to acquire three fields. Part of the fields was subject to compulsory purchase by the Minister to construct a new road. Notice to treat was served on the claimant, but the Minister then argued that it was unnecessary for him acquire the option since it would be extinguished by the compulsory acquisition, by analogy with cases relating to easements. The argument failed. Viscount Caldecote CJ explained the difference:
“A purchaser of land over which there is a right in the nature of an easement does not necessarily want to interfere with the easement. If and when he does interfere with it, the compensation is to be paid in respect of the injury suffered by the person entitled to the easement. It is not a case of the acquisition of the easement, but only of that of the servient tenement. The option to purchase in the present case is wholly different. It seems to me that at the moment at which the Minister takes the freehold he must also take the claimant's interest, because otherwise his purchase of the freehold would not serve his purpose.” (p 249)
As will be seen, that passage seems to me to point the way to a straightforward answer to the present case.
General approach
The tribunal was invited to approach the analysis by reference to the history of the legislation, or (in the reported words of Mr Roots QC for the company: LT para 10):
“… by considering the evolution of the statutory provisions from the Lands Clauses Act 1845, through the Acquisition of Land (Authorisation Procedure) Act 1919 to the present regime, which is to be found in the Lands Tribunal Act 1949, the Land Compensation Act 1961 and the Compulsory Purchase Act 1965.”
Consistent with this approach, the list of authorities referred to in argument extended to sixty-two, spanning some 160 years, of which half were referred to in the decision. In a similar spirit, Mr Barnes QC and Mr Denyer-Green for the appellants before us have relied on an 80-page “Outline Argument”, containing a detailed analysis of most of the cases referred to below.
While gratefully acknowledging the expertise and industry shown by this work, and accepting that the issues before the Tribunal were somewhat wider, I see a danger of overcomplicating the task. The Compulsory Purchase Act 1965 was designed to modernise the 19 th C law..:
“An Act to consolidate the Lands Clauses Acts as applied by Part I of Schedule 2 to the Acquisition of Land (Authorisation Procedure) Act 1946, and by certain other enactments, and to repeal certain provisions in the Lands Clauses Acts and related enactments which have ceased to have any effect.”
The opportunity was also taken to update the somewhat archaic language and arrangement of the equivalent 1845 Act provisions.
The correct approach to a consolidation statute was explained by the House of Lords in Farrell v Alexander [1977] AC 59. Lord Wilberforce said:
“I would agree and endorse the principle that it is quite wrong that, in every case where a consolidation Act is under consideration, one should automatically look back through the history of its various provisions, and the cases decided upon them, and minutely trace the language from Act to Act… In recent times, because modern statutes have become so complicated, the courts myself included… rather too easily accept this process, whether under persuasion of counsel or from their own scholarly inclinations. But unless the process of consolidation, which involves much labour and careful work, is to become nothing but a work of mechanical convenience, I think that this tendency should be firmly resisted; that self-contained statutes, whether consolidating previous law, or so doing with amendments, should be interpreted, if reasonably possible, without recourse to antecedents, and that the recourse should only be had when there is a real and substantial difficulty or ambiguity which classical methods of construction cannot resolve.” (p 72H-73C)
These comments seem particularly apt in the present context. It is notorious that the compulsory purchase legislation is in many respects complex and obscure, but the courts should do their best to simplify where possible (see Waters v Welsh Development Agency [2004] 1 WLR 1304 para 4, per Lord Nicholls).
Accordingly, in my view, the correct...
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Decision Nº ACQ 459 2010. Upper Tribunal (Lands Chamber), 03-05-2012
...[1980] 1 WLR 219 Hughes v Doncaster MBC [1991] 1 AC 382 Waters v Welsh Development Agency [2004] 1 WLR 1304 Kent v Union Railways [2009] EWCA Civ 363 IRC v Gray [1994] STC 60 IRC v Crossman [1937] AC 26 Duke of Buccleuch v IRC [1967] 1 AC 506 Batchelor v Kent CC [1990] 59 P & CR 357 Banco d......