Chilton v Telford Development Corporation

Compulsory purchase — Date for assessment of compensation — New Towns legislation — Possession of land taken in several parcels over a period — Preliminary point of law — Whether date of entry was date when first parcel was taken or whether there were a number of separate dates for the purpose of valuation — Owner-occupied farm — Notice to treat and notice of entry relating to whole farm given on May 3 1978 — Possession of a part first taken on June 5 1978 — Remaining acts of taking possession spread over a lengthy period — The issue before the court, on a case stated by the Lands Tribunal at the request of the claimant, was as to the effective date or dates of entry for the purpose of compensation — The Lands Tribunal accepted the submission on behalf of the acquiring authority that there were eight separate valuation dates, being the specific dates on which the authority entered into possession of the several parts of the land — The claimant contended that the tribunal was in error and that the material date was the date when possession was taken of the first parcel, at which date the authority should be treated as having entered upon the entire farm — The Court of Appeal, agreeing with the claimant’s submission, discussed the purpose of the notice of entry provisions in Schedule 6 to the New Towns Act 1965 (the statute operative at the time) — The purpose of requiring the authority to give not less than 14 days’ notice of their intention to enter and take possession could not be to cover ‘a contingent intention, not formally adopted, and not carrying with it the intention to act upon it within a reasonable time’ — The court adopted the construction which was favourable to the owner-occupier because the provisions in question, although incidentally dealing with compensation and interest, were primarily enacted for the protection of such persons — The authority in the present case must be treated as taking possession of the whole farm at the date of the first entry, June 5 1978, that being the material date for the assessment of compensation — Appeal allowed — Comments by Purchas LJ on ‘a provision which has on its face an open-ended power granted to the authority to act or not to act’ No cases are referred to in this report. This was an appeal by case stated at the request of the claimant, Mr A R H Chilton, challenging the conclusion of the Lands Tribunal (V G Wellings QC) that there were eight dates at which entry was made and possession taken of the several parts of the claimant’s farm by the Telford Development Corporation, these being the relevant dates for the assessment of compensation. The farm, of which the claimant was the owner-occupier, was Trench Lodge Farm, Trench, Telford, Shropshire. The Lands Tribunal’s decision was reported at [1985] 1 EGLR 195; (1985) 274 EG 1037. A Anderson QC and R Fookes (instructed by Treasures & Rivers Wyatt, of Gloucester) appeared on behalf of the claimant; R J A Carnwath QC and Miss A Robinson (instructed by J C H Bowdler & Sons, of Shrewsbury) represented the acquiring authority, Telford Development Corporation. Giving judgment, PURCHAS LJ said: This is a case stated by the Lands Tribunal at the request of Mr A R H Chilton, the claimant, under section 3(4) of the Lands Tribunal Act 1949. The single member of the tribunal had been asked to determine a preliminary point of law, and he did so on April 1 1985. The point arises out of the compulsory purchase and compensation provisions contained in the New Towns Act 1965 and the Compulsory Purchase Act 1965. Although the former Act has been repealed by the New Towns Act 1981, we are told by learned counsel that the corresponding provisions in the later Act are the same in most relevant particulars, and that the point is one of some interest generally, beyond the interests of the parties particularly involved in this reference. The point raises a consideration of the relevant date, or dates, of entry and taking possession of land by the acquiring authority for the purpose of compensation. The acquiring authority involved is the Telford Development Corporation. The question posed was summarised in the decision of the single member in these words: Possession of the land acquired was taken by the acquiring authority in several parcels and the preliminary issue is concerned with the question whether there is a single date, namely, the date on which possession of the first parcel was taken, or several dates namely, the individual dates on which possession of the several parcels was taken, which is or are material for the purposes of valuation. The parties had agreed the facts so far as they were relevant; they are as follows: the land of which the claimant at all material times was owner-occupier, and which he farmed, consisted of 67.87 acres or thereabouts of agricultural land at Trench Lodge Farm, Trench, Telford, Shropshire. On July 10 1973 the acquiring authority made the Telford Development Corporation (Hadley Park No 1) Compulsory Purchase Order 1973 under Section 7 of the New Towns Act 1965. The order was confirmed by the Secretary of State for the Environment on March 10 1978. The order related to the 67.87 acres and other lands required by the development corporation for their activities under the New Towns Act. A notice to treat in accordance with the statutory provisions was served on, and dated, May 3 1978; it related to the whole of the 67.87 acres. On the same date the acquiring authority served on the claimant one notice of entry relating to the whole of the 67.87 acres. As the history evolved, the acquiring authority went into physical occupation of individual parcels of the whole area over a period of 28 months. The first date of entry, June 5 1978, involved 4.62 acres; thereafter there were three more areas involved and entries made, until December 6 1978, which I mention specifically because in respect of that area, 4.9 acres, the acquiring authority purported to serve a ‘revised notice’. No point has been taken on this, and for the purposes of this appeal it can be ignored. It is common ground that the ‘revised notice’ was of no formal effect. The remaining acts of taking possession and entering occurred, as to 3.95 acres, on January 1 1980;13 as to 1.60 acres on January 1 1980, and then an area which is over half the whole of the area involved, 35.501 acres, on October 4 1980. After June 5 1978 in fact the claimant remained in occupation of the parcels not previously entered until such time as the acquiring authority in fact entered into physical occupation. Saving only the area of 4.9 acres entered on December 6 1978, there is no evidence or information as to any further sort of notice, but it must be assumed that there was some kind of communication between the parties. That is how things progressed. The dispute, as is clear from the question posed, relates to the effective date of entry and taking possession for the purposes of compensation. But the particular statutory provisions which must be considered relate mainly to inhibit or restrict the exercise of the powers to acquire compulsorily by way of granting some limited protection to the owner or occupiers involved. In very short summary, and by way of introduction, the statutory procedure involves two main steps: first of all, the obtaining of the compulsory purchase powers; there are provisions in that process whereby the landowner or occupier can oppose the confirming of the order; and, second, those powers having been confirmed, how they are to be exercised. They are exercised subject to these restrictions: first of all, there must be a notice to treat served under section 5 of the Compulsory Purchase Act 1965; then, that having been done, there are further restrictions on the acquiring authority preventing that authority from entering upon the land without giving at least 14 days’ notice. It is now convenient to turn to the statutory provisions with which we are concerned. I start by reading section 12(1) of the New Towns Act 1965: Part I of the Compulsory Purchase Act 1965 shall apply in relation to the acquisition of land under this Act subject to any necessary adaptations and to the provisions of Part I of Schedule 6 to this Act. Section 11(1) of the Compulsory Purchase Act is replaced by para 4 of Schedule 6, the relevant provisions of which are: 4(1)  If the acquiring authority have, in respect of any of the land, served notice to treat on every owner of that land, they may at any time thereafter serve a notice — (a)  on every occupier of any of that land, and (b)  on every person (other than such an occupier) . . . describing the land to which the notice relates and stating their intention to enter on and take possession thereof at the expiration of such period (not being less than fourteen days) as may be specified in the notice. I pause to emphasise the words ‘describing the land to which the notice relates’; that is the notice of intention to enter. The period is one of not less than 14 days, and therefore envisages periods of greater notice if appropriate. Subpara (2) of para 4 of Schedule 6 reads as follows: At the expiration of the period specified in such a notice (or, where two or more such notices are required, and the periods specified in the several notices do not expire at the same time, of the last of those periods to expire), or at any time thereafter, the acquiring authority may enter on and take possession of the land to which the notice or notices relate without previous consent or compliance with section 11 of the Compulsory Purchase Act 1965, but subject to payment of the like compensation for the land of which possession is taken, and interest on the compensation agreed or awarded, as they would have been required to pay if those provisions had been complied with. Subpara (2) of para 4 of the Schedule refers first of all to the cases where there may be more than one occupier or owner in respect of whom notices of intention to enter must be served, but gives power ‘at any time thereafter [to] enter on and take possession of the land to which the notice or notices relate without previous consent’ and then ‘or compliance with section 11 of the Compulsory Purchase Act 1965 but subject to’ the provisions that interest will run from the date of entry and taking possession. The member considered the arguments of counsel which, generally speaking, were in line with the arguments they have put before us. Mr Anderson argued to the effect that the notice of entry of May 3 related to the whole of the land and for that reason, when the acquiring authority on June 5 1978 first took possession of a part of the land, it must be treated as having done so in the name of the whole; he developed his argument along those lines, saying also that any other interpretation of the statute would lead to doubt, confusion and hardship, and in particular relating to identifying not only the area involved if part of the land in respect of which the notice of entry was served was in fact entered, and the unfairness that would be involved, as could be said in this case, by a long delay as to a substantial part of the land under threat. I do pause to comment, however, that counsel have been scrupulous to point out that it is not alleged that there has been either unfairness or difficulty in this case; the matter comes before us essentially as one of construction of the statute and, as Mr Carnwath submitted, merely construction of the statute in the accepted and established facts of what indeed happened in this case. Mr Carnwath submitted before the single member that there was no basis in law for the proposition that the original entry into possession of part of the land was to be treated as entry in the name of the whole. There was no factual basis on the agreed statement of facts for inferring the grant of a licence by the authority in respect of the parts which, after June 5, continued in the occupation of the claimant. I pause to emphasise that in fact the claimant did remain farming the land which had not been occupied by the acquiring authority. Upon one of the two alternative assessments of compensation which had been agreed between the parties, credit is given for what is described, probably inaccurately, as mesne profits to relate to the benefit received by the claimant from his continued occupation of the land, if the contentions of Mr Anderson are right, namely that the claimant is entitled to compensation, and interest thereon, to run from June 5 1978 in respect of the whole of the land involved in the notice of entry. The single member accepted Mr Carnwath’s argument and said this: In my judgment, on the agreed facts there is no reason to infer that when the authority took possession of part of the land on June 5 1978 they did so in the name of the whole. Equally, notwithstanding the use of the expression ‘mesne profits’ (an expression more appropriate to a tenancy than to a licence) there is no reason to infer that the authority purported to grant a licence to the claimant to remain in possession of the remainder of the land. In my opinion, in the present case, there are eight valuation dates, namely, the specific dates on which the authority entered into possession of the several parts of the land as set out in agreed facts No (6). I answer the preliminary issue accordingly. The questions stated for this court are threefold: 1  Whether I was correct in law in determining as the Respondent contended that for the purposes of calculating compensation for disturbance and interest on the purchase price, the acquiring authority should be treated as having taken possession of each individual parcel of land on the date on which the acquiring authority took actual physical possession of the same . . . 2  Whether I erred in law in not adopting the Appellant’s contention that for the purposes of calculating compensation for disturbance and interest on the purchase price, the acquiring authority should be treated as having taken possession of the whole 67.87 acres on June 5 1978, being the date of the first entry onto that land following the notice of entry dated May 3 1978 relating to the whole property the subject of the Notice to Treat on May 3 1978. 3  Whether I was correct in law to find on the agreed evidence no reason to infer that the authority either purported to or did grant a licence to the Appellant to remain in possession of part of the land. The statutory provisions which I have already set out do not give a simple definitive answer to the two contending interpretations. It is perfectly right to say that nowhere in Schedule 6 does one find anything other than the expression ‘intention to enter on and take possession of the land’. Para 4(1) does refer to ‘intention to enter on and take possession of the land’, and para 4(2) refers to ‘the land of which possession is taken shall carry interest at the rate’. So the statute refers to ‘taking possession’ (para 4(2) of Schedule 6) or intention to enter on and take possession thereof (para 4(1) of Schedule 6). In addition to that there is no provision providing a period during which a notice of intention to enter should lapse. Subject to reasonable exercise of power, which has not been argued before us, if the acquiring authority took no step in relation to any part of the land, albeit that they had served a notice of intention to enter, then the provisions of para 4(2) of Schedule 6 remain as a threat to the enjoyment of the land, which can be determined at any time without notice. It must of course be remembered that before the stage of serving a notice of intention to enter and take possession the acquiring authority has already been obliged to serve a notice to treat, which must incorporate the whole of the land subject to the notice of intention to enter; but of course it may, and very frequently does, extend to other lands in respect of which a notice of intention to enter will not have been served. But this does afford a remedy to the owner of the land who can, in the absence of agreement as to compensation,14 refer to the Lands Tribunal, but his remedies are not immediately or easily available. So one is left here with a provision which has on its face an open-ended power granted to the acquiring authority to act or not to act. It may at least be questioned whether that was entirely the intention of Parliament in enacting what are essentially provisions for the protection of an owner or occupier who is subjected to the necessary, but nevertheless draconian, powers of the acquiring authority to dispossess him of his title and occupation of his land. For my part, in approaching the construction of these statutory provisions I have two concepts in mind: first, to give to this part of the legislation, if it is open to do so, a purposive construction, bearing in mind the general considerations and need for these provisions. Second, to bear in mind that it is a statute which is depriving the citizen of his rights in property and his title, and the right to enjoy occupation of his lands or perhaps somebody else’s lands. So, looking at section 12 of the New Towns Act, and Schedule 6, I pose the question: what is the purpose of requiring the acquiring authority to give notice of not less than 14 days of an intention to enter on and take possession of the land?  What it cannot cover, in my judgment, is a contingent intention, not formally adopted, and not in fact carrying with it the intention to act upon it within a reasonable time. Otherwise, the statute provides that the acquiring authority does not have to serve a notice of intention to enter in respect of the whole of the land, subject to the notice to treat, or of the compulsory purchase order itself as relates to the particular owner or occupier; and that they may serve, as and when necessary — which I would construe as meaning as and when they form the intention necessary to bring into effect the provisions of para 4(1) — the intention to enter on and take physical possession thereof. I am conscious of the argument to the contrary, that there is also no express reference in this statute to give effect to the concept that entry upon part of the land, subject to the notice of intention to enter, should be deemed to constitute entry of the whole, and it would not have been beyond the wit of man to have put that in the drafting of the statute. But, choosing between the two alternative approaches to this legislation, and I hope fairly recognising the lacuna which exists for practical purposes in the day-to-day carrying out of these exercises, I adopt the construction which is favourable to the owner and occupier of the land, because these sections, although incidentally dealing with calculation of compensation and interest, were primarily enacted for the protection of such a person. I would therefore construe the statute in that light, and that would bring me to the conclusion that the answers to the questions posed by the single member for our consideration are that with regard to the first question the answer must be ‘no’; the answer to the second question must be ‘yes’, and that leaves the answer to the third question still to be considered. For my purposes the substance of this reference is dealt with by answering the first two questions. Whatever the status may be, whether as licensee or some other formally acquired status as between the parties involved, will depend from case to case, from attitude to attitude adopted by the parties concerned — that is, the landowner or occupier and the acquiring authority — and I do not consider that any formal general answer to question 3 will further the matter in any useful way at all. If I had to choose on the facts of this case, I would have thought that Mr Chilton was present there as a bare licensee with few or no rights, bearing in mind that under the statute he is not entitled to receive any notice of change of intention or of the termination of his licence; nor is he entitled to any description of the land which the acquiring authority will choose to possess and enter on no notice. That is a further argument for supporting the conclusion I have reached on the interpretation of the statute, namely, as I emphasised when reading para 4 of Schedule 6, it does specifically require the acquiring authority to describe the land which it intends to enter and of which it intends to take possession. By adopting the construction for which Mr Carnwath in his admirable submissions contends, it would merely defeat the object of that precaution which has been put in the Schedule for the protection of the landowner and occupier. I would therefore answer questions 1 and 2 in the way that I have described, and I would not give any formal answer to question 3. Agreeing, NEILL LJ said: I add a few words of my own only because we are differing from the construction given to the statutory provisions by the member of the Lands Tribunal. It was argued on behalf of the acquiring authority that, for the purpose of para 4(2) of Schedule 6 to the New Towns Act 1965, they entered on and took possession of the parcels of land set out in para 6 of the agreed facts on the several dates therein set out. It was further argued that for the purpose of calculating the interest to be paid on the compensation for the land, these several dates constituted the time of entry on the individual parcels. However, it seems to me, with respect, that these arguments do not pay due regard to the provisions of para 4 of Schedule 6. It is clear from this paragraph (a) that a notice of entry may relate to part only of the land comprised in the relevant notice to treat; (b) that any notice of entry must describe the land to which it relates; (c) that the notice of entry must state the intention of the acquiring authority to enter on and take possession of the described land at the expiration of a specified period; and (d) that at the expiration of the period specified in the notice or at any time thereafter, the acquiring authority may enter on and take possession of that land. It follows, therefore, that an acquiring authority may, if so minded, serve a series of notices of entry and can enter on to the land described in each of such notices in accordance with a programme which suits its requirements. But where, as here, a single notice of entry is given, it seems to me that, save perhaps where the de minimis rule applies, a subsequent entry on to the land, or any part of the land, is an entry made in accordance with the permissive power given in para 4(2) of Schedule 6, and is an entry on the land described in the notice to enter. The first entry on to the described land constitutes the entry on to the described land foreshadowed by the statutory notice; the date of that entry is the time of entry for the purpose of the interest provisions contained in para 4(2). For these reasons, as well as for those given by Purchas LJ, I, too, would answer the questions in the manner in which my lord has proposed. BALCOMBE LJ also agreed, for the reasons given in the previous judgments, that the appeal should be allowed and he did not add anything further. Appeal allowed and questions in case stated answered as proposed in judgment of Purchas LJ. Costs awarded in favour of claimant. Leave to appeal to House of Lords refused.