Venables v Department of Agriculture for Scotland
| Jurisdiction | Scotland |
| Judgment Date | 02 June 1932 |
| Docket Number | No. 70. |
| Date | 02 June 1932 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Compulsory Powers—Right to compensation—Tenant's interest—Compulsory acquisition by Department of Agriculture of land let for purposes of sport—Claim by sporting tenant in respect of disturbance—Competency—Acquisition of Land (Assessment of Compensation) Act, 1919 (9 and 10 Geo. V. cap. 57), sec. 2, Rules (2) and (6)—Lands Clauses Consolidation (Scotland) Act, 1845 (8 and 9 Vict. cap. 19), secs. 17, 19, 71, and 114.
The Acquisition of Land (Assessment of Compensation) Act, 1919, by sec. 2, enacts rules for the assessment of compensation where land is compulsorily acquired for public purposes. Rule (2) provides that the value of the land shall be taken as the amount which a willing seller might obtain for the subjects in the open market. Rule (6) provides that the provisions of Rule (2) shall not affect "the assessment of compensation for disturbance or any other matter not directly based on the value of land."
In arbitration proceedings following upon the compulsory acquisition by the Department of Agriculture for Scotland of a deer forest which was let for purposes of sport under a 99 years' lease, the tenant made a claim for personal loss in respect of dispossession of the subjects. His claim was opposed by the Department, who maintained that a claim based on disturbance at the instance of a sporting tenant was incompetent.
Held that Rules (2) and (6) of sec. 2 did not have the effect of displacing in any way the rule, now well settled in the construction of the Lands Clauses Consolidation (Scotland) Act, 1845, that, where lands have been taken under compulsory powers, a tenant is entitled to full compensation for all loss resulting to him from dispossession; and, further, that there was no distinction, in principle, between a claim for disturbance such as was here in question and a claim for ordinary business disturbance.
The Department of Agriculture for Scotland under "the Department of Agriculture for Scotland (Luskentyre) Order, 1929," compulsorily acquired the deer forest of Luskentyre, in the Island of Harris and County of Inverness, with the shooting lodge and buildings thereon, and the shootings and fishings, of which Viscount Leverhulme was the proprietor, and John Luke Venables was the tenant under a lease for 99 years.
Arbitration proceedings under the Acquisition of Land (Assessment of Compensation) Act, 1919,1 were afterwards instituted for
determination of the compensation payable by the Department. A joint claim was lodged by the proprietor and the tenant for the capital value of the subjects compulsorily acquired, but with that claim the present report is not concerned. A separate and independent claim was also lodged by Mr Venables, as tenant, for personal loss which he alleged he had sustained by reason of his dispossession of the subjects let to him. This claim was opposed, as incompetent, by the Department.On 10th July 1931 the arbiter issued proposed findings, in which he proposed, inter alia, to find the claim relevant and to allow certain items in the claim. Thereafter he heard parties on his proposed findings, and on 21st November 1931 he issued an interlocutor in which, subject to certain small deductions in some of the items, he adhered to his proposed findings.
At the request of the Department he stated a case for the opinion of the Court of Session under section 6 of the Acquisition of Land (Assessment of Compensation) Act, 1919.
The case stated, inter alia:—"2. … The claim by the claimant, the said John Luke Venables, was in the following terms:—“The claimant is lessee of the lands, buildings, shootings, and fishings of Luskentyre (being the subjects specified or referred to in the Notice to Treat dated 2nd December 1929 given by the Department of Agriculture for Scotland) under a lease for 99 years entered into between the Right Honourable William Hesketh Baron Leverhulme and the Right Honourable Alexander Edward Murray, Earl of Dunmore, V.C., dated 13th and 22nd May and registered in the Books of Council and Session the 17th June 1919. In respect of the taking of the property specified in the said Notice the claimant is compelled to dispose of the stock and implements on the property, the furniture and furnishings in the Lodge and Offices, and the boats and sporting equipment belonging to him, which will result in considerable loss, for which he is entitled to be compensated by the Department. He accordingly makes the following claims:—
| "“ (1) For loss in respect of sale of farm stock, sheep stock and implements (as per Schedule No. 1 annexed) | £157 | 14 | 5 |
| "“ (2) For loss in respect of sale or removal of furniture and furnishings in Luskentyre Lodge and Offices (as per Schedule No. II annexed) | 466 | 9 | 10 |
| "“ (3) For loss in respect of sale of motor launch, 6 boats, motor car and sporting equipment (as per Schedule No. III annexed) | 241 | 7 | 6 |
| Total claim | £865 | 11 | 9” |
3. After the evidence for both parties had been led, counsel for the respondents craved leave to amend their answers to the claim for personal loss lodged by the said John Luke Venables by adding the following:—“The Department contend that the whole of this claim is incompetent and irrelevant. There is no warrant under the Acquisition of Land (Assessment of Compensation) Act, 1919, or any of the Acts incorporated or referred to in the Compulsory Order, for any claim based on disturbance. No such claim is competent to the claimant.”As a condition of being allowed to make this amendment, the respondents offered to pay to the said claimant, in any event, the whole expense incurred by him in presenting and leading evidence on this claim. Arguments were then submitted on this objection. Counsel for the respondents maintained that section 2, Rule (2), of the Acquisition of Land (Assessment of Compensation) Act, 1919, limits the compensation payable to the price which a willing seller might expect to get in the open market, and excludes any compensation for loss or expense caused by disturbance or dispossession by a tenant of a sporting estate, and further, that Rule (6) of section 2 does not give an independent right to compensation for disturbance, but merely provides that the Act shall not affect any existing right, and that, apart from the terms of the said Act, the claimant the said John Luke Venables had no right to compensation for disturbance. 4. Counsel for the claimant the said John Luke Venables contended, in the first place, that his client's claim is a competent one, and one contemplated by the Act. He maintained that he would have been entitled to his personal claim under section 17 of the Lands Clauses Consolidation (Scotland) Act, 1845, and that the Acquisition of Land (Assessment of Compensation) Act, 1919, leaves that right unaffected. Further, he maintained that, even if he was wrong in that contention, the Acquisition of Land (Assessment of Compensation) Act, 1919, gave him the right which he claimed by section 2, Rule (6), and that, as matter of practice under the Acts, such claims had frequently been entertained and adjudicated upon by arbiters. In the second place, he maintained that the respondents had waived any objection they might have had to the claim by failing to take objection until after the claims had been submitted to the present arbiter and proof led, and that, in any event, the objections should be repelled, on the ground that they were tabled at too late a stage in the proceedings. 5. On 10th July last the arbiter issued proposed findings on the two claims, in which he proposed, inter alia, to find that the personal claim by the said John Luke Venables, No. 3 of process, is a relevant claim in the arbitration, and to allow [certain specified] items in the said claim, and to assess the compensation as follows":—
| (1) Under Schedule I. | £15 | 12 | 9 |
| (2) Under Schedule II. | 284 | 18 | 5 |
| (3) Under... |
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