Co-operative Insurance Society Ltd v Hastings Borough Council

Compulsory purchase — Whether statement of intention to make general vesting declaration an exercise of compulsory powers — Whether time-limit for the exercise of compulsory powers had expired In 1982 the plaintiff society acquired a lease dated June 24 1959 for a term of 150 years of premises fronting Queen’s Road, Hastings. The lease was the subject of underleases of shops and offices erected on the premises. On December 14 1987 the defendant council made a compulsory purchase order in exercise of powers conferred by section 112(1)(a) of the Town and Country Planning Act 1971. The CPO authorised the purchase of the Hastings cricket ground and other property, including the property comprised in the lease, for the purpose of securing its comprehensive redevelopment. The CPO was confirmed by the Secretary of State for the Environment on February 24 1989 and notice of confirmation of the CPO was published on March 9 1989. That was the date on which the CPO became operative and from when the three-year period within which the power of an acquiring authority for the compulsory purchase of land must be exercised as prescribed by section 4 of the Compulsory Purchase Act 1965. At the time of giving notice of confirmation of the CPO to the persons affected, the council enclosed a notice complying with section 3 of the Compulsory Purchase (Vesting Declarations) Act 1981 stating the effect of Parts II and III of the 1981 Act in relation to the making of general vesting declarations. By the expiration of the three-year period from the publication of the CPO, on March 9 1992, no notice to treat had been served on the society and no general vesting declaration relating to the land had then been made. The society contended that the power conferred by the CPO ceased to be exercisable as regards the interest of the society in the demised land on the expiration of the three-year period. The council contended that the inclusion with the notice of confirmation of the CPO of a statement giving the particulars required by section 3 of the 1981 Act was itself the exercise of compulsory purchase powers within section 4 of the 1965 Act. The council relied upon Westminster City Council v Quereshi [1991] 1 EGLR 256 where the same question had been answered by Aldous J in favour of the acquiring authority; the council further contended that under the principle of tacit legislation Parliament had approved that decision because it had an opportunity to reverse it and did not when enacting the Planning and Compensation Act 1991. Held: A judge of the High Court may refuse to follow an earlier decision if convinced that it is wrong: see Huddersfield Police Authority v Watson [1947] 1 KB 842. A notice under section 3 of the Compulsory Purchase (Vesting Declarations) Act 1981 is not an exercise of powers of compulsory purchase for the purposes of section 4 of the Compulsory Purchase Act 1965. The service of a section 3 notice committed the council to nothing: it was still open to the council to exercise their power by the service of a notice to treat if they subsequently decided to take that course. The service of the section 3 notice equally conferred no rights on the society. A section 3 notice is no more than a warning by an acquiring authority that they may use the procedure of the 1981 Act and proceed, as it were, in a single leap to completion of a purchase without the intermediate stage of what has been described as a quasi-contract. The creation of a legal relationship under which the owner has the right to require the compensation to be agreed or ascertained by the Lands Tribunal and to be paid the compensation once agreed or ascertained does not arise. The consequences of finding that there was no time-limit in the Quereshi case could not have been present in the mind of Aldous J at the time. The fact that Parliament had an opportunity to alter the Quereshi decision and refrained from doing so is not more than a factor to be taken into account by an appellate court in deciding whether it should overrule an earlier decision of an inferior court and which may equally reinforce the natural reluctance of a judge of the High Court to differ from a decision of a judge of a co-ordinate jurisdiction. It was impossible to infer from the amendments to section 5 of the 1965 Act introduced by the 1991 Act a recognition on the part of the legislature that on service of a notice under section 3 of the 1981 Act the initial time-limit in section 4 of the 1965 Act should no longer apply. That would involve inferring from legislation designed to add to the protection of the owner of land affected by a compulsory purchase order a further time-limit within which the acquisition of land by the machinery of a notice to treat must be completed, an intention to leave the machinery for the acquisition of land under the 1981 Act untrammelled by any time-limit. The following cases are referred to in this report. Beesly v Hallwood Estates Ltd [1960] Ch 549; [1960] 1 WLR 549; [1960] 2 All ER 314 Grice v Dudley Corporation [1958] Ch 329; [1957] 3 WLR 314; [1957] 2 All ER 673; (1957) 55 LGR 493; 9 P&CR 58; [1957] JPL 723 Hagee (London) Ltd v A B Erikson & Larson [1976] QB 209; [1975] 3 WLR 272; [1975] 3 All ER 234; [1975] EGD 139; (1975) 236 EG 479, [1975] 2 EGLR 61, CA Huddersfield Police Authority v Watson [1947] KB 842; [1947] 2 All ER 193; (1948) 63 TLR 415 Metropolitan Police District Receiver v Croydon Corporation [1956] 1 WLR 1113; [1956] 2 All ER 785; 54 LGR 521 Metropolitan Police District Receiver v Tatum [1948] 2 KB 68; [1948] 1 All ER 612; 46 LGR 219 Monmouthshire County Council v Smith [1956] 1 WLR 1132; [1956] 2 All ER 800; 54 LGR 494 Otter v Norman [1989] AC 129; [1988] 3 WLR 321; [1988] 2 All ER 897; [1988] 2 EGLR 128; [1988] 39 EG 79, HL Phillips v Mobil Oil Co Ltd [1989] 1 WLR 888; [1989] 3 All ER 97; (1989) 59 P&CR 292; [1989] 2 EGLR 246, CA Salisbury (Marquis of) v Great Northern Railway Co [1852] 17 QB 840; 21 LJQB 185; 16 Jur 740 Westminster City Council v Quereshi (1990) 60 P&CR 380; [1991] 1 EGLR 256 Wilkes v Goodwin [1923] 2 KB 86 This is an originating summons to determine whether the defendants, Hastings Borough Council, could exercise powers under the Hastings Central Cricket and Recreation Ground Compulsory Purchase Order 1987 to acquire land from the plaintiff, Co-operative Insurance Society Ltd. Derek Wood QC and Barry Denyer-Green (instructed by the solicitor to Co-operative Insurance Society Ltd) appeared for the plaintiff; Richard Phillips QC and Suzanne Ormsby (instructed by Nabarro Nathanson, agents for Hastings Borough Council) appeared for the defendant. Giving judgment, VINELOTT J said: The question raised by this originating summons is whether a notice given by the defendants, Hastings Borough Council (‘the council’), to the plaintiff, Co-operative Insurance Society Ltd (‘the society’), pursuant to section 3 of the Compulsory Purchase (Vesting Declarations) Act 1981 (‘the 1981 Act’) was the exercise of powers of compulsory purchase conferred on the council by the Hastings Central Cricket and Recreation Ground Compulsory Purchase Order 1987 (‘the CPO’) for the purposes of section 4 of the Compulsory Purchase Act 1965 (‘the 1965’ Act). Section 4 provides that the power of an acquiring authority for the compulsory purchase of land is not to be exercised after the expiration of three years from the date on which the compulsory purchase order becomes operative. 20 Under section 26 of the Acquisition of Land Act 1981, which re-enacted provisions which at the passing of the 1965 Act were contained in the Acquisition of Land (Authorisation of Procedure) Act 1946, a compulsory purchase order becomes operative on the date on which notice of the confirmation is first published. The facts can be shortly stated. By a lease dated June 24 1959 and made between the trustees of the Hastings central cricket and recreation ground the lessor of the one part and Howard Collings (Hastings) Ltd the lessee of the other part, an area of some 0.33 ha on the south-east boundary of the Hastings central cricket and recreation ground fronting Queen’s Road was leased to Howard Collings (Hastings) Ltd for the term of 150 years from June 24 1959. The transaction was in the nature of a sale and leaseback. The lessee agreed to erect a block of shops and offices facing Queen’s Road and, as part of the development, to erect and leaseback to the trustees of the cricket ground a grandstand at first-floor level facing the cricket ground together with underground cloakrooms and other facilities. The building was duly completed and, in 1982, the lease of the completed development was acquired, subject to the leaseback to the trustees and to underleases of the shops and offices, by the society which bought it as an investment. On December 14 1987 the council made the CPO in exercise of powers conferred by section 112(1)(a) of the Town and Country Planning Act 1971. The CPO authorised the purchase of the cricket ground and other property, including the property comprised in the lease, for the purpose of securing its comprehensive redevelopment. The CPO was confirmed by the authority of the Secretary of State for the Environment following a public inquiry on February 24 1989. Notice of confirmation of the order was published on March 9. That was accordingly the date on which the CPO became operative and from which the three-year period prescribed by section 4 of the 1965 Act began to run. On the previous day the council had given notice to the persons affected which anticipated the order and stated proleptically that ‘the order as confirmed becomes operative on a date on which the notice of the confirmation of the Order was first published, ie 9th March’. Enclosed with the notice was a notice headed: ‘Statement concerning General Vesting Declaration’. The purpose and effect of that statement I will explain in a moment. I must first briefly summarise the relevant statutory provisions. Until 1981 the machinery for compulsory acquisition was governed by the Compulsory Purchase Act 1965 (‘the 1965 Act’) which re-enacted provisions originally contained in the Lands Clauses (Consolidation) Act 1845. I have already summarised section 4 of the 1965 Act. It re-enacted a provision originally contained in section 123 of the 1845 Act, which was in the same terms, save that the period was the period prescribed in the Private Act authorising the compulsory purchase or three years from the passing of the Special Act if no period was prescribed. Under section 5 an acquiring authority which requires to purchase land which they are authorised to purchase must give notice to treat to all persons interested in or having power to sell or release the land so far as known to the acquiring authority after making diligent inquiry. If a person served with a notice to treat does not, within 21 days, state particulars of his claim or treat with an acquiring authority, or if he and the acquiring authority do not agree as to the amount of compensation to be paid, the question of compensation is to be referred to the Lands Tribunal (section 6); if the owner or other person awarded compensation on tender of the compensation agreed or awarded fails to make out title to the land or his interest in it or refuses to convey or release the land, the acquiring authority can pay the compensation into court and execute a deed poll which vests the estate or interest in respect of which the compensation was awarded in the acquiring authority (section 9). There is provision in section 11 under which an acquiring authority, having served notice to treat, can enter and take possession of the land affected; any compensation agreed or awarded then carries interest until paid. The principles governing the assessment of compensation are to be found in the Land Compensation Act 1961. I need refer only to one section of that Act. Under section 31 an acquiring authority has power within six weeks after a notice has been given by a claimant of the amount of compensation to which he claims to be entitled to withdraw the notice to treat. If no notice is served, the acquiring authority has power to withdraw the notice to treat within six weeks after the amount of compensation has been determined by the Lands Tribunal. This is the familiar procedure for compulsory acquisition which is initiated by notice to treat. It has long been settled law that the service of a notice to treat is the exercise of compulsory powers for the purposes of section 123 of the 1845 Act and of section 4 of the 1965 Act: see Marquess of Salisbury v Great Northern Railway Co [1852] 17 QB 840 and Grice v Dudley Corporation [1958] Ch 329. This procedure proved to be cumbersome and productive of delay and to hamper unduly the compulsory acquisition of land where the area to be acquired is owned by a large number of persons — in particular where an acquiring authority wished to acquire a substantial area in which a number of owners and lessees are interested for the purposes of a comprehensive redevelopment. An alternative procedure was introduced by section 30 of the Town and Country Planning Act 1968. It was extended and re-enacted by the 1981 Act. Under section 4 of that Act an acquiring authority can execute a vesting declaration vesting the land comprised in a compulsory purchase order in themselves at a vesting date not less than 28 days from the date on which the service of certain notices required by section 6 is completed. However, the procedure in section 4 can be invoked only after a notice has been served complying with section 3. Section 3 provides that, before making the declaration, the acquiring authority must include either (a) in the statutory notice of confirmation of the order or (b) in a subsequent notice meeting the same requirements the particulars specified in subsection (3); a notice given under subsection (1)(b) must be given before the service of any notice to treat (subsection (2)); the particulars required to be included are a statement of the effect of Parts II and III (sections 3 to 9) of the 1981 Act and a notification to the effect that every person who, if a general vesting declaration were executed would be entitled to compensation, is invited to give information to the acquiring authority. Section 4 then authorises the acquiring authority to make a declaration vesting the land in themselves at the end of a period specified in the declaration, being not less than 28 days from the date on which the service of notices under section 6 is completed. Under section 6 a notice setting out the effect of the declaration must be served on every occupier of the land (other than land in which there exists a tenancy from year to year, or for a year or less, or a longer lease which is about to expire) and on any other person who has given information in response to the invitation in the notice given under section 3(1). The effect of a vesting declaration is set out in sections 7 to 9 of the 1981 Act. Section 7 provides that the provisions of (among other things) the 1965 Act are to apply as if on the date of the declaration a notice to treat had been served on every person on whom, under section 5 of the 1965 Act, the acquiring authority could have served such a notice, other than a person entitled to an interest in respect of which a notice to treat had been served before the vesting date, or entitled to a short tenancy or a long tenancy about to expire; however, the power conferred by section 31 of the 1961 Act to withdraw a notice to complete is not to be exercisable in respect of the deemed notice to treat. Under section 8 the acquiring authority has power to enter and take possession of the land specified in the vesting declaration as if the power in the 1965 Act to execute a deed poll had arisen and the power had been exercised. Section 11(1) of the 1965 Act is, therefore, excluded. It is necessary only to refer to one other of the provisions of the 1981 Act. Section 10 provides that, when land has become vested in an acquiring authority by virtue of the earlier provisions of the Act, the acquiring authority are to be liable to pay compensation in the same way as if they had taken possession under section 11(1) of the 1965 Act. The compensation thus carries interest from the date on which the acquiring authority take possession. 21 I return to the question stated at the beginning of this judgment. The period of three years from the publication of the CPO expired on March 9 1992. No notice to treat had then been served on the society and no general vesting declaration relating to the land had then been made. The question is whether the power conferred by the CPO ceased to be exercisable as regards the interest of the society in the demised land on the expiration of the three-year period. The answer to that question depends on whether the inclusion with the notice of the CPO of a statement giving the particulars required by section 3 of the 1981 Act was itself the exercise of the power conferred by the CPO within section 4 of the 1965 Act. A precisely similar question came before Aldous J in Westminster City Council v Quereshi (1990) 60 P&CR 380*. In that case a compulsory purchase order was published in July 1985. Notices under section 3 of the 1981 Act were served in February 1988. The acquiring authority executed vesting declarations under section 4 of that Act in September 1988 some three and a half years after publication of the CPO. The acquiring authority issued an originating summons seeking a declaration that in effect had been exercised when the notices under section 3 were given and that the vesting declaration under section 4 was accordingly valid and effective. *Editor’s note: Also reported at [1991] 1 EGLR 256. The defendant owner did not appear when the originating summons first came on for hearing. A mortgagee, joined as second defendant, took no part in the argument, possibly because he was satisfied that the compensation would suffice to meet his charge. Aldous J reserved his judgment. When he came to deliver judgment, the defendant owner appeared and sought an adjournment to enable him to obtain representation and for the case to be reheard. Aldous J decided that the better course would be to deliver the judgment he had already prepared, leaving it to the defendant owner to challenge it on appeal. Aldous J, having referred at length to the speeches in the House of Lords in the Marquess of Salisbury’s case and to the judgment of Upjohn J in Grice v Dudley Corporation rejected a contention advanced by Mr Andrew Collins QC, who appeared as counsel for the acquiring authority, that a notice served under section 3 was analogous to a notice to treat on the ground that there is a basic difference. After a notice to treat a legal relationship exists which enables the authority to enter upon the land. That right is not given by service of a section 3 notice. Further, with a notice to treat both parties have rights in that, save where the authority elects to withdraw which is given in limited cases, the landowner has a right to compensation; whereas after service of a section 3 notice the landowner has no right to compensation. His right is dependant upon a vesting declaration being executed. However, he decided that the section 3 notice was an exercise of compulsory powers and that the CPO accordingly did not become inoperative after the third anniversary of the publication of the CPO. I should, I think, read this part of his judgment in full: Section 26 of the Acquisition of Land Act 1981, which I have read, provides that a compulsory purchase order shall become operative on the date that the confirmation of the order or the making of the order is first published. Section 5 of the Compulsory Purchase (Vesting Declarations) Act 1981 prevents the authority, save with consent, executing a vesting declaration before two months have elapsed from the date of publication of the section 3 notice, and in any case before the compulsory purchase order has become operative. Section 3 of that Act lays down that certain preliminary notices have to be given before a vesting declaration can be made. Thus the compulsory purchase order became operative in 1985 and enforceable subject to a valid section 3 notice being given. Those notices were given within the three-year limit laid down in section 4 of the 1965 Act. Thus the compulsory purchase orders were operative and effective within the three-year limit. All that was required to be done was to formally transfer the title by executing the vesting declarations. Section 4 of the 1965 Act states that the powers for the compulsory purchase of land shall not be exercised after three years, and not that all acts to vest title must be completed within the three-year period. Thus, what is covered by the section is the powers of compulsory purchase. I believe that once the compulsory purchase orders had become operative and all conditions have been met which made them effective so that the authority could vest the land in themselves, then the powers of compulsory purchase had been exercised. Having exercised such powers, section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 entitled them to execute the vesting declarations. That entitlement was dependent upon the authority validly exercising the powers given to them for compulsory purchase. The word ‘declaration’ also suggests to me that the powers of compulsory purchase have been exercised, and that the vesting declarations are documents declaring that the compulsory purchase has taken place and having the effect of formally transferring the title to the land. The position of a judge of the High Court faced with a decision of another judge of the High Court is explained in an often-cited passage in the judgment of Goddard LJ in Police Authority for Huddersfield v Watson [1947] KB 842, at p848, where he said: . . . I think the modern practice, and the modern view of the subject, is that a judge of first instance, though he would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction. He is only bound to follow the decisions which are binding on him, which, in the case of a judge of first instance, are decisions of the Court of Appeal, the House of Lords and the Divisional Court. In Receiver for the Metropolitan Police District v Croydon Corporation [1956] 1 WLR 1113, Slade J had to decide whether to follow an earlier decision of Atkinson J in Receiver for the Metropolitan Police District v Tatum [1948] 2 KB 68. After citing this passage from the judgment of Goddard LJ he added at p1116: I am not, therefore, relieved by the decision in Tatum’s case of my duty to bring my own judgment to bear, but when I have done so I should act in accordance with the principles that I have just read; and not only, as I have said, should I regard any judgment of Atkinson J as being of high persuasive authority, but I should follow it unless I am convinced that it is wrong. I am, however, entitled to give my own reasons for arriving at the same conclusion if I do arrive at the same conclusion. After a lengthy judgment in which he reconsidered the earlier authorities, he reached the same conclusion as had been reached by Atkinson J, but added at p1131: Had I taken the contrary view, I should have done so with such doubt and hesitation that I should have followed the decision of Atkinson J, for the reasons which I gave at the outset of my judgment. Indeed, I have found the point of law which arises in this case so difficult to decide that if I felt any conviction upon the matter at all I should be more likely to feel convinced that it was I and not Atkinson J who was wrong. However, the principle that a judge of the High Court must reach his own conclusion and must refuse to follow an earlier decision if convinced that it is wrong is well illustrated by the subsequent refusal of Lynskey J in Monmouthshire County Council v Smith [1956] 1 WLR 1132 to follow the earlier decisions of Atkinson J and Slade J. At p1150 he explained that: Naturally I regret very much the fact that I have to differ from Atkinson J and Slade J, and I would not do so unless I felt compelled to. One always desires to follow the decisions of one’s brother judges, but in the present case I feel that I am bound by the Court of Appeal’s decision and the essential that the Court of Appeal have fixed before this type of action can succeed. In the event, appeals against both decisions were heard by the Court of Appeal and the Court of Appeal affirmed the decision of Lynskey J. I have reached the conclusion, after anxious consideration, that I should not follow the decision of Aldous J. The fallacy in his reasoning lies, I think, in the assertion that in that case the compulsory purchase order became operative in 1985 and enforceable subject to a section 3 notice being given. From that proposition he deduces that the compulsory purchase order became ‘operative and effective within the three-year period’ and that all that was required to be done was formally to transfer the title by executing the vesting declarations. 22 A CPO becomes operative when published only in the sense that the powers conferred by it then become exercisable. The question in any given case is when those powers were exercised. It is, in my view, simply impossible to say that a section 3 notice is an exercise of those powers. The service of the section 3 notice committed the council to nothing; it was still open to the council to exercise their power by the service of a notice to treat if they subsequently decided to take that course. The service of the section 3 notice equally conferred no rights on the society. A notice given under section 3 is, in my judgment, no more than a warning by an acquiring authority that they may use the procedure of the 1981 Act and proceed, as it were, in a single leap to completion of a purchase without the intermediate stage of what has been described as a quasi-contract — the creation of a legal relationship under which the owner has the right to require the compensation to be agreed or ascertained by the Lands Tribunal and (subject to the acquiring authority’s right under section 31 of the 1961 Act to resile from the transaction) to be paid the compensation once agreed or ascertained. The conclusion reached by Aldous J has very serious consequences which, in my judgment, could not have been intended by the legislature. They are well illustrated by the instant case. When the CPO was made and confirmed, the council expected that they would be able to interest a developer in carrying out the development without cost to the council. In the latter half of 1988 a well-known public company was selected as the developer. The downturn in the retail property market dates from about this time or a little earlier. After the CPO had been published the property market generally continued to decline and the developer required the inclusion in the contract of a condition entitling it to rescind if it proved impossible to obtain finance. The property market continued to decline and, as a result, the developer was unable to finance the development. The contract was rescinded at the end of July 1991. Since then the Secretary of State for the Environment has refused to authorise the borrowing by the council of the moneys needed to proceed with the acquisition of the land comprised in the CPO. In an affidavit sworn by the solicitor to the council in November 1992 he explained that the council then hoped that the proceeds of the disposal of other land, which was then expected to be completed in the near future, would suffice to enable the council to complete the acquisition of the society’s land. Whether that hope was realised or not, I do not know. After the CPO was published, some of the underlessees of shops or offices comprised in the development have invoked the provisions now contained in section 149 of the Town and Country Planning Act 1990 to compel the council to acquire their interests. Under that section and its predecessors, a resident owner or owner-occupier of land affected by a CPO, who finds that the effect of the CPO has been to depreciate the value of his land, can serve a notice, commonly called a ‘blight notice’, requiring an acquiring authority to acquire his interest. However, these provisions do not apply to an owner of land who holds his land solely as an investment. Thus, the society now finds itself locked for an indefinite period in a position in which its interest cannot be sold except at a much depreciated price and in which vacant shops and offices are difficult to let except to tenants who are prepared to take a tenancy at a lower rent or on terms as to repair less favourable than would have been obtainable if the land had not been subject to the possibility of compulsory acquisition at short notice. Moreover, if Aldous J’s decision were right, it would be open to an acquiring authority in any case to serve notice under section 3 as soon as a CPO had been confirmed and published in order to prevent the three-year period in section 4 from running against them. It would still be open to the acquiring authority to proceed by means of a notice to treat outside the three-year period, if it preferred that course. The landowner would have no remedy, unless he could prove either that the section 3 notice was served in bad faith with the only or primary purpose of avoiding the time-limit in section 4, or that the acquiring authority’s original intention in obtaining the CPO had been abandoned. Mr Richard Phillips QC, for the council, submitted that I should follow the decision of Aldous J, even if I inclined to the conclusion that it was wrong, on two related but I think distinct grounds. First, he relied on the well-established principle that an appellate court will not lightly disturb a decision on which commercial and property arrangements have been founded, even if it is not binding on it. The principle was stated by Lord Denning in Hagee (London) Ltd v A B Erikson & Larson [1976] QB 209* at p215H in these words: In conveyancing matters, once the courts have given a decision on which parties have acted, the decision should be upheld unless there are very strong reasons to the contrary. *Editor’s note: Also reported at (1975) 236 EG 479, [1975] 2 EGLR 61. In Otter v Norman [1989] AC 129†  the question was whether, where a room was let at a rent which included a payment for the provision of a continental breakfast, the tenancy was excluded from the protection of the Rent Acts on the ground that the premises were bona fide let at a rent which included payments in respect of board. The majority of the Court of Appeal had expressed the opinion in Wilkes v Goodwin [1923] 2 KB 86 that ‘board’ was not confined to full board and that any amount of board would satisfy this test, provided that it was not de minimis. Lord Bridge said at p146: My Lords, I think we must assume that for many years many landlords and tenants have regulated their relationships on this basis, and even if I thought that a different construction could reasonably be placed on section 7(1) of the Act of 1977 I would not think it right to adopt it now and to upset existing arrangements made on the basis of an understanding of the law which has prevailed for so long. † Editor’s note: Also reported at [1988] 2 EGLR 128. Last, in Phillips v Mobil Oil Co Ltd [1989] 3 All ER 97†† , the question was whether a renewal covenant in a lease was registrable as a land charge. This question had long vexed conveyancers until, in Beesly v Hallwood Estates Ltd [1960] 2 All ER 314, Buckley J decided that it was. This decision was later challenged in Phillips v Mobil Oil Co Ltd. Nicholls LJ having reached the same conclusion as Buckley J added at p102: I am relieved to find that my own view on the ‘interpretation of the ‘estate contract’ definition in the Land Charges Act does not result in any disturbance of the now established conveyancing position. †† Editor’s note: Also reported at [1989] 2 EGLR 246. These are all cases where an appellate court was asked to reverse an earlier decision of an inferior court. When the question is whether a judge of the High Court has to decide whether he should follow a decision of another High Court judge, they reinforce his natural disinclination to refuse to follow that decision. However, in my judgment, these cases have no possible application in this case. There are two reasons. First, I am satisfied that if the defendant owner had been represented by counsel before Aldous J and if it had been pointed out to him that the effect of a contention advanced on behalf of the acquiring authority, if upheld, would be to make it impossible for him to realise the full value or to exploit commercially land held as an investment for an indefinite period and to put an acquiring authority in a position where it could avoid the limitation in section 4 of the 1965 Act by giving notice under section 3 of the 1981 Act, Aldous J would have reached the same conclusion as I have reached. I have no doubt that the issue was fairly put by the very experienced counsel who appeared for the acquiring authority in that case, but the fact remains that, so far as can be judged by the report, these consequences were not present to his mind. Second, the decision is comparatively recent (judgment was given on February 22 1990) and it seems to me unlikely that an acquiring authority will have refrained from serving a notice to treat or from making a vesting order under section 4 of the 1981 Act in reliance on it. Mr Phillips also relied on what is described in Bennion on the Interpretation of Statutes as ‘Tacit Legislation’. It is stated at p95 of that work in these terms: Where Parliament does not intervene to reverse or modify processing effected by courts or officials it can be taken tacitly to approve it. As Professor Pearce has said: ‘if a legislature has chosen not to make any change in an Act following upon its interpretation by the judiciary, it is strong ground for thinking that the legislature is satisfied with the court’s ruling’. For this principle of ‘tacit legislation’ to apply, a reasonable period must have elapsed after the processing within which Parliament might, if it had chose, have legislated the other way. The reference is to a work by Professor Pearce called Statutory Interpretation in Australia (September 3 1988). This principle is also stated by the author in his work on the interpretation of statutes on p481 in these terms: Parliament is normally presumed to legislate in the knowledge of and having regard to relevant judicial decisions. If therefore Parliament has a subsequent opportunity to alter the effect of a decision on the legal meaning of an enactment but refrains from doing so the implication may be that Parliament approves of that decision and adopts it. The authorities cited are Otter v Norman and Phillips v Mobil Oil Co Ltd. In Otter v Norman Lord Bridge drew attention to a passage in the judgment of Scrutton LJ in Wilkes v Goodwin where he said: Partial board, partial attendance, or some furniture though the house is not completely furnished, will suffice to bring the proviso into operation. Parliament might have made the other provision, but have not in my opinion done so. If they did intend the other meaning, they apparently have an opportunity this year to make their meaning plain. If some furniture will do, how much will suffice? So far as regards board, that observation was obiter since the question was related to partial furnishing. However, later, in the Rent and Mortgage Interest Restriction Act 1923, Parliament adopted the test of substantiality with reference to the furniture and attendance but not with reference to board. The fact that the legislature had taken that course was a matter which Lord Bridge took into account in reaching his decision in Otter v Norman. In Phillips v Mobil Oil Co Ltd Nicholls LJ similarly drew attention to the fact that the Land Charges Act 1925 had been amended after the decision in Beesly v Hallwood Estates and that on neither occasion was that decision reversed. He added: ‘In the present case I have reached my conclusion on the construction of s10 without regard to this subsequent history. Nevertheless, I do derive some comfort from knowing that since 1960 Parliament has revisited the Land Charges Act 1925 more than once, and has not reversed the decision in Beesly’s case.’ The subsequent legislation relied on by Mr Phillips is to be found in section 67 of the Planning and Compensation Act 1991, which amended section 5 of the 1965 Act by adding new subclauses (2A) to (2E). It is only necessary to read the first two of these subclauses: (2A)  A notice to treat shall cease to have effect at the end of the period of three years beginning with the date on which it is served unless — (a)  the compensation has been agreed or awarded or has been paid or paid into court, (b)  a general vesting declaration has been executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981, (c)  the acquiring authority have entered on and taken possession of the land specified in the notice, or (d)  the question of compensation has been referred to the Lands Tribunal. (2B)  If the person interested in the land, or having power to sell and convey or release it, and the acquiring authority agree to extend the period referred to in section (2A) of this section, the notice to treat shall cease to have effect at the end of the period as extended unless — (a)  any of the events referred to in that subsection have then taken place, or (b)  the parties have agreed to a further extension of the period (in which case this subsection shall apply again at the end of the period as further extended, and so on). The contention is that Parliament, by introducing a further time-limit in the case of a notice to quit, impliedly recognised and endorsed the decision of Aldous J. It is quite clear that the fact that Parliament has legislated in a cognate field or has otherwise been provided with an opportunity of reversing a decision of the courts and has failed to do so cannot give that decision the force of a positive enactment. The fact that Parliament had an opportunity to alter the decision and refrained from doing so is no more than a factor to be taken into account by an appellate court in deciding whether it should overrule an earlier decision of an inferior court and which may equally reinforce the natural reluctance of a judge of the High Court to differ from a decision of a judge of co-ordinate jurisdiction. The weight to be given to this factor must depend on the court’s assessment of the extent on which the subsequent legislation can be said to have been founded, or to form part of a single legislative scheme taken in conjunction with, the earlier decision or with the earlier legislation as interpreted by that decision. I do not find it necessary to explore further the weight to be given to this factor in any given circumstances. It is, to my mind, impossible to infer from the amendments to section 5 of the 1965 Act introduced by the 1991 Act a recognition on the part of the legislature that on service of a notice under section 3 of the 1981 Act the initial time-limit in section 4 of the 1965 Act should no longer apply. That would involve inferring from legislation designed to add for the protection of the owner of land affected by a compulsory purchase order a further time-limit within which the acquisition of land by the machinery of a notice to treat must be completed, an intention to leave the machinery for the acquisition of land under the 1981 Act untramelled by any time-limit. It would involve attributing to the legislature a deliberate decision to leave it open to an acquiring authority to avoid both the time-limit in section 4 and the further time-limit in section 5(2A) by serving notice under section 3. The restriction in section 4 of the 1965 Act would then apply only if the acquiring authority subsequently decided to proceed by way of notice to treat. That, it seems to me, would be to attribute to the legislature not only omniscience, full knowledge of all decisions which had been reached before the new legislation was passed, but also a willingness to act in what, to my mind, would be a quite irrational and arbitrary way. In my judgment, therefore, the answer to the questions raised in the summons is that the power of compulsory acquisition conferred by the CPO ceased to be exercisable after the expiration of three years from its publication. I will leave it to counsel to draft an appropriate form of declaration. The defendant council must pay the costs of the summons. Declaration accordingly.