Webb v Minister of Housing and Local Government

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE DANCKWERTS
Judgment Date25 March 1965
Judgment citation (vLex)[1965] EWCA Civ J0325-4
Date25 March 1965
CourtCourt of Appeal

Re Bognor Regis Urran District Council (Felpham Coast Protection) Compulsory Purchase Order 1962

Webb and others
and
The Minister of Housing and Local Government and another

[1965] EWCA Civ J0325-4

Before

The Master of the Rolls (Lord Denning)

Lord Justice Danckwerts and

Lord Justice Davies

In The Supreme Court of Judicature

Court of Appeal

From Lord Justice Salmon

SIR DEREK WALKER SMITH, Q.C. and MR. G.C.RYAN (instructed "by Mr. Paul Smith, Town Hall, Bognor Regis) appeared as Counsel for the Appellants, the Bognor Regis U.D.C.

MR. MORRIS PINER, Q.C. and MR. L.J. BELCOURT (instructed by Messrs Saunders, Sobell, Leigh & Dobin) appeared as Counsel for the Respondents (Applicants).

THE MASTER OF THE ROLLS
1

The old village of Felpham lies within the Urban District of Bognor Regis next to the sea. In recent Years big housing estates have been developed right along this stretch of coast. The houses and their gardens run down quite close to the beach. Most of the householders have erected fences at the bottom of their gardens separating them from the shore. Between the garden fences and the sea itself there is a strip of seashore which is the subject of this action. I will call it the "yellow strip" because it is coloured yellow in the plans. It is over a mile long, but it is not very wide. The sea at high water comes up to within 40 to 60 feet from the garden fences. So the strip at the cost is only a cricket pitch in width. This yellow strip is a barren and denuded shore, made up of shingle and sand, and traversed by old grounds now in decay and derelict. The public have a right of way on foot along this yellow strip. It is shown in the definitive nap of public rights of way. The legal title to most of this yellow strip is claimed by two housing estate companies. They seen. to have built houses. sold them off, and retained the ownership of the strip in themselves. But some of the householders lay claim to short lengths of it.

2

How the trouble that has arisen is this. This stretch of the coast is in peril of being washed away by the sea and the houses with it. If nothing is done, the sea will eat away the land at the rate of five or six-feet a year. It is very urgent that strong defences should be erected to stop the incursion. In former times the landowners themselves erected their own defences. But now, under the Coast Protection Act, 1949, the local Council have the power, and indeed the duty, to take sufficient measures to protect the land, see Sections 4 and 29. In this case it was the Bognor Regis Urban District Council who had this power and this duty. They have done quite a lot. Since 1956 they have done a good deal of work which appeared to them to be urgently necessary, seeSection 5(6). And they have made no charge to the landowners were benefited. But in 1961 the time came when major works were necessary so as to save this mile-long stretch of houses and gardens. And it appeared to the Council that the owners of the houses and land which stood to benefit ought to make some contribution to the cost. So they prepared a works scheme which enabled them to levy charges on these landowners, see Section 6(1)(b)

3

The draft Scheme of 9th August. 1961.

4

In order to prepare the works scheme, the Council called in consulting engineers of the highest repute in this field, Messrs Lewis & Duvivier. These consultants prepared a draft scheme which, after some amendment, was submitted to the Council on 9th August, 1961. The main proposals in this draft scheme were theses: The Council were to build a new concrete sea wall right along the seashore. This sea wall was to be several feet high (17.5 feet above ordnance datum), it was to be four feet wide at the base, and 2 ft. 6 ins. at the top. The precise alignment could not be ascertained in advance. It depended on technical considerations at the time of construction. It was to be tied back to a continuous anchor beam 27 ft. back on the landward side. The area landward of the wall was to be filled in with hard material and decked in so as to prevent it being scoured by waves breaking over the wall. The total cost was estimated at £216,000. The Council were to levy a charge on the householders and estate companies whose lands would be benefited by the works. Under this draft scheme the Council were them selves to acquire a narrow belt of the seashore so as to build the new sea wall. This narrow belt was coloured red on the plan and ran along the whole length of the yellow strip. The width of the red belt was not precisely shown, but it looks as if it would take up about 20 ft. out of the 40 to 60 ft. width of the yellow strip. The rest of the yellow strip was to be left still vested in the landowners and designated ascontributory land.

5

On 9th August, 1961, that draft scheme was sent by the consultants to the Council's engineer. On 21st September, 1961. it was sent by the Council to the Ministry of Housing and Local Government. This was in no sense a formal submission of the draft scheme. It was simply to see if the Ministry had any observations to make on is as it then stood. The Ministry had no observations to make.

6

The amendments to the draft scheme:

7

During the next three months the draft scheme of 9th August, 1961, was amended. The Council's engineer wanted provision made for a "10 ft. wide surfaced access way" on the landward side of the wall, so that his men could get access for maintenance works and for this purpose he also wanted an added width of land to be acquired by the Council. He took the matter up with the consultants, and after some letters and interviews the consultants were ready to modify the scheme so as to include an access way; and they were prepared also to recommend that the whole of the yellow strip be acquired by the Council. I would quote from two of the letters written by the consultants. On 30th August, 1961, they wrote that, assuming that the access way was to be included, " the description in the schedule will have to be modified slightly and the estimate increased, by the cost of the decking£2. 10s.0d. per foot run". On 21st November, 1961, they sent forward plans showing "the limits of the land that we recommend should be acquired for the construction of the works". The plans show the whole of the yellow strip on the landward side of the wall. In consequence the draft scheme was amended by inserting this short sentences "The Council also Propose to acquire the land coloured yellow on the said plan". is the only amendment that was made. It was put before the Council on 27th November, 1961, who made this recommendation: "That the scheme (as now slightly emended to include provision for the compulsory purchase of a strip of land to provide accessto the proposed sea wall) be made by the Council and the Common Seal of the Council be affixed thereto". On 1st December, 1961, the Common Seal was affixed. But it was of no effect unless confirmed by the Minister. On the 16th March, 1962, the scheme was submitted to the Minister for confirmation,

8

The making of the Compulsory Purchase Order

9

The works scheme did not itself authorise the acquisition of any land. The Council had to take separate steps to acquire any land they required for the works. They could acquire it either by agreement or by compulsory purchase. They determined to acquire it by compulsory purchase. On 1st February, 1962, they made an order for the compulsory acquisition of the whole of the yellow strip, amounting to nearly ten acres in all. Eight acres of it belonged to the Summerley Estate Company, whose title was clear; the title to the other two acres was more doubtful. The Order said it was "for the purpose of constructing and maintaining coast protection works". There had, of course, to be all the procedure of notices, objections and an inquiry before it could be confirmed.

10

The Statement of Reasons for the Compulsory Purchase Order

11

Before the public inquiry, the Council issued a statement of their reasons for making the compulsory purchase order. In 1956 the Franks Committee had recommended that acquiring and planning authorities should be required to make available, in good time before the inquiry, a statement in writing giving full particulars of their case. The Government accepted this recommendation in principle and the Ministry of Housing and Local Government issued a Circular No.9/58 which contained the direction: "When a local authority is proposing to acquire land compulsorily, it should prepare a statement in writing setting out clearly the reasons for its proposals, and shall make this written statement available to those affected as early as possible so that they will be better able to prepare and present their case",In accordance with this direction, on 16th August, 1962, the Bognor Regis Urban District Council issued a statement of their reasons for making the compulsory purchase order. Not, be it noted, their reasons for the works scheme, but for the compulsory purchase order: "(a) The Council has been advised by its Sea Defence Consultants, Messrs Lewis & Duvivier, that for the construction and subsequent maintenance of the works to be comprised in the works scheme, it is essential that the lend shown upon the plan and thereon coloured yellow be acquired by the Council. It is at least extremely doubtful whether sufficient facilities could be acquired by any form of negotiation and subsequent agreement, (b) As regards the land numbered (1) on the plan (this was an area of nearly two acres to which the Felpham Estate Company and two or three householders had laid claim) it has proved impossible to ascertain the ownership in fee simple, and consequently the Council would be unable to negotiate its acquirement in any event". After this statement of reasons was issued, two of the principal landowners (who claimed to own most of the yellow strip) offered to negotiate for the...

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