Hertfordshire County Council v Rothschild Trust Co (CI) Ltd and others

Lands Tribunal — Appeal by way of case stated — Whether tribunal is required when requested to include questions in case stated which raise points of law In Ozanne v Hertfordshire County Council [1988] 2 EGLR 213 the Lands Tribunal awarded the claimants £1.24m for the acquisition of land in connection with road improvements required in connection with the development of an area of land on the basis that it had a ransom value for that purpose. An appeal to the Court of Appeal was allowed and the case remitted on the basis that the tribunal had failed to identify the scheme underlying the acquisition: see [1989] 2 EGLR 18. On remission the tribunal seemingly accepted the submissions of the claimants and confirmed the award of £1.24m: see [1992] 2 EGLR 201. The county council desired to appeal that decision and on November 29 1991 put various questions to the tribunal for inclusion in the case stated. On July 1993 the case stated was signed by the president of the tribunal. The county council remained unsatisfied with the case as stated and applied to the Court of Appeal for amendment and remission. It contended that the tribunal is required to include in a case a properly stated point of law unless it is unarguable or was irrelevant. It raised three questions which should be included in the case stated: (1) whether the tribunal erred in assuming for valuation purposes that a planning permission for the development area had not been granted; (2) whether it erred in its conclusions relating to the route and highway standards of one of the access solutions; and (3) whether it erred by stating that nothing was to be subtracted from the outline of the case at the first hearing. Held: The application was allowed. All three questions raised points of law which were arguable and relevant and should be stated by the tribunal for resolution by the Court of Appeal. The following cases are referred to in this report. Hertfordshire County Council v Ozanne [1989] 2 EGLR 18; [1989] 43 EG 182; [1989] RVR 179, CA Hertfordshire County Council v Ozanne [1991] 1 WLR 105; [1991] 1 All ER 769; (1991) 89 LGR 345; [1991] 1 EGLR 34; [1991] 13 EG 157, HL Ozanne v Hertfordshire County Council [1988] RVR 133; [1988] 2 EGLR 213; [1988] 36 EG 195 & 37 EG 123, LT Ozanne v Hertfordshire County Council [1992] 38 EG 158; [1992] 2 EGLR 201 Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565, PC Stokes v Cambridge Corporation (1961) 13 P&CR 77; [1961] EGD 207; 180 EG 839, LT Tersons Ltd v Stevenage Development Corporation [1965] 1 QB 37; [1964] 2 WLR 225; [1963] 3 All ER 863, CA This was an application to the Court of Appeal for amendment and remission of a case stated by the Lands Tribunal in an appeal by Hertfordshire County Council against an award of compensation to the respondents, Rothschild Trust Co (CI) Ltd, Percy James Ozanne and Michael John Wilson. John Howell QC (instructed by the solicitor to Hertfordshire County Council) appeared for the applicants; Matthew Horton QC (instructed by Berwin Leighton) represented the respondents. Giving the first judgment at the invitation of Sir David Nicholls V-C, MANN LJ said: In October of this year there is due to be heard in this court the substance of an appeal by way of case stated from a decision of the Lands Tribunal dated November 5 1991*. That appeal can have only one basis; that is to say that the decision is ‘erroneous in point of law’: see Lands Tribunal Act 1949, section 3(4). The appellants are Hertfordshire County Council in their capacity as compensating highway authority in relation to land taken by their agent authority under the East Hertfordshire District Council (Thorley Lane, Bishop’s Stortford) Compulsory Purchase Order, which was confirmed on October 12 1977 and under which entry was made upon March 6 1978. *Editor’s note: Reported at [1992] 2 EGLR 201. The respondents are the trustees of the Boyd Gibbins Family Trust and were the freehold owners of 1.605 ha of agricultural land, which was the subject of the compulsory purchase order. The agricultural value of the land at the valuation date (that is the date of entry) was £5,500. By its decision the tribunal, Mr CR Mallett FRICS, awarded £1.24m as being the open market value of the subject land as between a willing vendor and a willing purchaser on the valuation date. There is before the court today an application by the appellant county council under Ord 61, r3(4). That rule provides: On the hearing of the case the Court of Appeal may amend the case or order it to be sent back to the tribunal for amendment. The application heard today seeks both amendment by this court and a remission to the tribunal. The application is listed in consequence of a letter addressed to the registrar dated December 2 1993 signed by counsel for the appellants and counsel for the respondents. I should read it: Dear Registrar, We are instructed as counsel for the appellants and respondents in the appeal to the Court of Appeal by way of case stated from a decision . . . In their notice served under RSC 0.61(3)(i) the appellants Hertfordshire County Council have stated that they will apply to the Court of Appeal on the hearing of the case for orders under RSC 061, r3(4) that the case should be amended by the Court of Appeal to raise certain additional questions or be remitted to the tribunal for amendment to raise them and that the case should in any event be remitted to the tribunal for amendment to state what the evidence was relevant to certain questions raised in the case stated. On the assumption that it is appropriate in this case to use the procedure under RSC 0.61(4) we are agreed that it would be desirable for the Court of Appeal to determine that application before it embarks on any hearing of any substantive argument on the appeal. The parties would then know what questions the Court of Appeal will determine and the basis upon which they will be determined. If the County Council’s application is successful, it may be necessary in any event to adjourn the remainder of the hearing of the appeal until after the tribunal has amended the case. It is anticipated that argument on the County Council’s application may take up to one day. In the circumstances we consider that it would be sensible to list the matter initially only for the hearing of the County Council’s application and accordingly we apply for that to be done. It will have been observed that there is incorporated into the letter an assumptive basis. The reason for the basis of assumption is that Mr Matthew Horton QC, on behalf of the respondents, has today submitted that the procedure under Ord 61, r3(4) is inapposite. He draws attention to the rule stating ‘on the hearing of the case’, which, he submits, today’s occasion is not. Mr Horton’s submission is that the appropriate mode of proceeding would be by way of judicial review, a mode of proceeding which would involve direct contact with the member of the tribunal which amendment by this court would not secure. Mr Horton suggests that, if an application for judicial review were now to be made, leave would be likely to be refused on the basis that the application had not been made promptly: see Ord 53, r4(1). Mr Horton, correctly so far as I am concerned, surmised that the court might find this an unattractive solution. I find it most unattractive. 37 Mr John Howell QC, on behalf of the appellants/applicants submitted that the short answer to Mr Horton’s submission was that this was on the hearing. There is here a hearing in two parts, the first of which, today, is a preliminary proceeding. I agree with that submission and would treat this for the purposes of the rule as the hearing. Any other result would seem to me to have a melancholy consequence; yet another procedure would be initiated. I add that, as Sir David Nicholls V-C pointed out during argument, the matter could in any event be rapidly short-circuited by having the appeal called on and adjourned. In my judgment, the jurisdictional point fails. Before looking at the amendments and omission which are sought, it is important that I should indicate the background to the matter which, to say the least, is complicated. I have said something of the appellants and the respondents. I must now say something about Thorley Lane. Thorley Lane has an approximate east/west alignment which commences at the west with the small settlement of Thorley and terminates at the east at a T-junction with the All trunk road. The respondents’ land is immediately adjacent to and to the south of a considerable length of the eastern length of the lane. In the 1970s the lane was a country lane. It was narrow and had a sinuous horizontal alignment. It was unclassified and was quite unsuited to the carriage of more than a small volume of traffic. To the north of the lane at its eastern end there was frontage residential development. To the west of that development there was open land which extended to the north as far as another east/west route known as the Great Hadham Road, B1004. About 114 ha of that open land was, by the early 1970s, allocated by the planning authorities for residential and other development. The other development was development ancillary to the residential. The area became known as the Thorley development area. The land comprised in the development area was originally in various ownerships, but, as a result of voluntary transactions, it came ultimately to be in the ownership of East Hertfordshire District Council and a company named Rialto Properties Ltd. It has ever been the perception of those advising the respondents that at least the southern half of the Thorley development area could not be developed without an improvement of Thorley Lane, and that such an improvement could not be achieved without what was to become the subject land of the compulsory purchase order. In the light of that advice, the respondents came to regard themselves as holding a ransom strip, of which the open market value would represent a share of the development value of the land which would be released for building as a result of the road improvement. The respondents relied upon the well-known decision in Stokes v Cambridge Corporation (1961) 13 P&CR 77*. It was the value so derived which the respondents had, throughout the long history of this matter, argued consistently is the relevant value. They had submitted that it was an extant value which could not be diminished by the scheme underlying the acquisition, which, say the respondents, was simply a scheme to improve Thorley Lane. *Editor’s note: Also reported at (1961) 180 EG 839. The thrust of the appellants’ argument as recorded by the tribunal — I say ‘recorded’ because there may be some dubiety as to whether it was correctly recorded — was, first, that the scheme underlying the acquisition was the development of the Thorley development area including the improvement of Thorley Lane and the value of the subject land could not, for compensation purposes, be enhanced by the scheme underlying the acquisition (see Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565); second, in any event, there was no ransom value, first, because the planning permission granted for the Thorley development area on March 22 1974 did not require improvement to Thorley Lane and, second, because there could be an on-line improvement of Thorley Lane without any encroachment on the respondents’ land. In response to these arguments, the respondents traversed the identity of the scheme. They said that the terms of the March 1974 planning permission were irrelevant and that an on-line improvement was impracticable. The rival contentions first came before the Lands Tribunal in 1987. A decision was given on March 2 1988. The award was in favour of the respondents in the sum of £1.24m. The county council appealed to this court by way of case stated where judgment was given on July 28 1989 and was reported in [1989] 43 EG 182, [1989] 2 EGLR 18*. The appeal was allowed and the case was remitted to the Lands Tribunal, on the basis that the tribunal had omitted to identify the scheme which underlay the compulsory acquisition. There was then an appeal to the House of Lords on another and discrete point which is no longer in issue. That appeal was dismissed: see [1991] 1 WLR 105† . The remission then came to the tribunal again. A decision was given by Mr Mallett on November 5 1991. That decision was given after further argument but without further oral evidence but with the benefit, if benefit it was, of another 641 pages of documents. Mr Mallett on this second occasion seemingly accepted the respondents’ arguments and rejected those of the appellant. He affirmed his earlier award of £1.24m. I say seemingly accepted, because I am anxious on this occasion not to grant any hostage for the appeal. *Editor’s note: Also reported at [1989] 2 EGLR 18. † Editor’s note: Also reported at [1991] 1 EGLR 34. The county council were immediately desirous of appealing by way of case stated the decision of November 5 1991 and some three and a half weeks after the decision, that is on November 29 1991, the county council submitted questions to the tribunal. They were addressed by Mr Mallett, who declined to accede to certain of them. Mr Mallett shortly thereafter retired in June or July 1992. The matter was thus dealt with, first, by Mr Victor Wellings QC, then the president of the tribunal until he in turn retired, and then subsequently by the present president, Judge Marder QC. Representations were made on a number of occasions by the appellants which were considered by the successive presidents. The county council’s representations were finally put, although not novelly put, on March 10 1993. They were finally rejected on March 24 1993 and the case signed by Judge Marder was lodged in July 1993. That case as lodged raises six questions for the opinion of the court. The appellants remain unsatisfied with that case as lodged and hence the present application for amendment and remission. The respondents say that Judge Marder was entirely correct in rejecting the representations as he did. I take, first of all, the request for amendment which is a request to put three further questions into the case. Those questions are in no sense novelties for they were put in the letter of November 29 1991, to which I have referred, and they have appeared consistently in county council drafts since. Mr Howell’s basic submission, as a matter of generality, is that an appellant should normally be permitted to raise a properly stated point of law in respect of which he contends that the tribunal has misdirected itself, unless it is unarguable or was irrelevant to the decision reached. He drew our attention to the terms of section 3(4) of the Act of 1949 which, after providing that a decision of the Lands Tribunal shall be final, continues: Provided that any person aggrieved by the decision as being erroneous in point of law may, within such time as may be limited by rules of court, require the tribunal to state and sign a case for the decision of the court and, where the decision of the Lands Tribunal is given on a review by way of appeal of the previous decision of another person, that person if dissatisfied with the decision of the Lands Tribunal shall be treated for this purpose as a person aggrieved thereby. Mr Howell emphasised the word ‘require’. He also drew our attention to the Lands Tribunal’s own Practice Note No 1 of 1993, in which it is stated: It is the obligation of the proposed appellant to find concisely and with reasonable precision the question or questions of law which it is sought to raise. Unless the point at issue is already plainly identified in the Tribunal’s decision, a question of law stated in general or vague terms, such as whether upon the findings of fact I came to a correct decision in law, will not be accepted. Subject to the foregoing, such grounds of appeal as are specified in the application or subsequently and which, in the view of the Tribunal, raise a point of law for the decision of the Court of Appeal, will normally be reproduced in the case stated. The Tribunal will decline to state a case if no grounds of appeal are specified or if the grounds of appeal when specified in view of the Tribunal disclose no point of law. I derive from the practice note and from more general considerations of common sense that, if a question is properly identified, is relevant and at least is arguable, then that question should be stated for its resolution by this court. That is the general premise upon which I shall approach the three questions which it is sought to add by way of amendment. The first question that it is sought to add is: whether the Tribunal erred in law in determining the open market value of the reference land on the date of entry (March 6th 1978) on the assumption that the planning permission granted on March 22nd 1974 for the development of the Thorley Development Area had not been granted. The president, in his letter of February 2 1993, which was affirmed on March 24 1993, said that the tribunal did not so proceed. Mr Horton endorses that. He says there is no specificity of language which supports the question and that it is not for speculation as to what the tribunal in fact did. True it is that there is no express statement. However, Mr Howell referred us to passages at pp7 and 8 of the decision and I quote: The 1974 permission granted by the county planning authority did not require any southern access to the TDA but by then the County Highway Authority had already assumed the burden of providing such an access and at its expense. I omit two paragraphs and continue: On the evidence before me it is inconceivable that the full development of the TDA would have been permitted without the provision of a southern access and it would be reasonable to suppose that planning permission for the development of the TDA would have ensured, either as a condition or by way of a section 52 agreement, that the developers provide the southern access at their own expense. In considering the consequences of there being no scheme one is not excluded necessarily from considering what might have or might not have been the conditions imposed by planning permission. The final route might not have been precisely as that envisaged in the compulsory purchase order, but much the same area of the Reference Land would have been required, because, as I have already found, there was in fact no suitable alternative route. The precise area of the ransom strip is not material to the ransom value. In my judgment, it is arguably implicit in those passages that the tribunal was proceeding on the assumption that the planning permission granted on March 22 for the development of the Thorley development area had not been granted. Accordingly, I would allow the first question. The second question sought to be added by way of amendment in this court is: in concluding (at pages 8-9 of the first decision and page 8 of the decision) that ‘the only practical access solution was the improvement and realignment of Thorley Lane on much the same line as in fact has now been carried out’ and in rejecting the possibility of an ‘on line improvement of Thorley Lane to a 6.1 metre width without the acquisition of any of the reference land’: (a)  whether the Tribunal failed to require the respondents to satisfy it that the on line improvement could not be achieved; and (b)  whether the Tribunal erred in law in concluding (at page 8 of the original decision) that the number of houses having direct access onto what would have been a local distributor road if Thorley Lane had been improved on line ‘would have been entirely contrary to the standards adopted by the Hertfordshire County Council in their ‘standards for Residential Development’ approved by the Council in 1964′ and in rejecting the submission that that document contained no such standards. The president in his letter of February 2, as affirmed on March 24 1993, stated that there was here no point of law. Mr Horton submits that the question is seeking to circumnavigate a factual conclusion long ago arrived at and that it was inappropriate now to raise it. In the decision under appeal Mr Mallett at p8 of his decision said: At the time of the notice to treat, as I have already found in my initial decision, the only satisfactory practical access solution was the improvement and realignment of Thorley Lane on much the same line as in fact has now been carried out. The reference to ‘a finding’ in the earlier decision is a reference to pp8 and 9 where this is to be found: Another possibility was the in-line improvement of Thorley Lane to a 6.1 metre width without the acquisition of any of the reference land. There is no evidence as to whether this was ever seriously considered in the real world. There are no contemporary measurements or survey details available and deductions have to be made from existing plans which leave some doubt as to whether the bare minimum standard width and sight lines could in practice have been achieved. A wholly unsatisfactory feature of this alternative would have been that a number of houses already had direct access onto an unclassified country lane which would be converted into a local distributor road. This would have been entirely contrary to the standards adopted by the Hertfordshire County Council in their ‘Standards for Residential Development’ approved by the Council in 1964. Then later: On the evidence I am left with the view that although there were various means of access available the only satisfactory practical solution was the improvement and realignment of Thorley Lane on much the same lines as has in fact been carried out. Mr Howell submits that the reference in the first passage I read to ‘some doubt’ was important in regard to the burden of proof. He submitted that the onus of proof, that there was no other alternative to the improvement of Thorley Lane in fact carried out on the reference land, was upon the claimant and that, from the language of the decision, it would appear that the tribunal may have put that onus upon the compensating authority. As to the standards in the 1964 document, Mr Howell submits that that is a matter of construction. For my part, I perceive here two relevant points of law and I would allow an amendment to raise these two questions, subject to one point only and that is that limb (a) of his question, which commences ‘whether the Tribunal failed to require the respondents to satisfy it that the on line improvement could not be achieved’, should be amended to read: whether the Tribunal should have required the respondents to satisfy it that the on-line improvement could not be achieved. I understand that Mr Howell would have no objection to that amendment. The third question is: whether the Tribunal erred in law in deciding (on page 2 of its decision) to subtract nothing from the general outline of the case contained on page 2 of its decision) to subtract nothing from the general outline of the case contained on pages 1-5, and its conclusions on pages 8-13, of its original decision having regard to the decision of the Court of Appeal remitting the reference to the Tribunal as the said parts of his decision embodied and were made in consequence of the error of law in respect of which the original decision was remitted to the Tribunal by the Court of Appeal. The president, in the letters to which I have already referred, could identify here no point of law. Mr Horton submits that the question does not identify what is alleged to have gone wrong. The passage in the second decision of which complaint is made is at p2 of it, where Mr Mallett says: There is nothing I wish to subtract from the general outline of the case contained in pages 1-5, and my conclusions on pages 8-13 of my original decision. On reflection I would have preferred in one or two instances to have used different wording but this would not have altered the sense of what I sought to say. The complaint which is made is that that passage, so early in the decision, tied Mr Mallett to the conclusions in his earlier decision before he had considered the subject of the remission to him; that is to say, the identification of the scheme. Mr Howell submitted that the38 point was a methodological one and that the methodology was flawed. In my judgment, there is a question here upon an arguable point and I would allow the amendment. Thus, subject to the one alteration which I have indicated, in my judgment, this court should allow the three additional questions which have been so consistently sought, but I add this: Mr Horton, in relation to each question, said they were not questions arising from the terms of the remission. He may or may not be right, but there is nothing in what I have said which is in any way to be taken as precluding an argument at the substantive hearing that these questions are not now — I emphasise now — proper to be asked. I turn to the question of remission. The request is shortly stated in these terms, that there be an order that the case be sent back to the tribunal for amendment to state what the evidence was relevant to the questions (1), (3) and (5) raised in the case stated. Questions (1) (3) and (5) are extant questions. They are these: (1)  whether there was any evidence on the basis of which the Tribunal could reasonably find (on page 4 of its decision) that in this case there was only one access to the local highway system available to the Thorley Development Area, namely that over the reference land; (3)  in respect of the Tribunal’s finding (on page 4 of its decision) that the reference land had a market value of £1,240,000 wholly unaffected by, or irrespective of, the effects of any scheme underlying the compulsory purchase order: (a)  whether there was any evidence upon which the Tribunal could reasonably conclude that the reference land had such a ‘ransom value’ given the existence of the 1974 permission; and (b)  whether the Tribunal erred in law in making the said finding without first giving the acquiring authority an opportunity to be heard, given that it was no part of the claimants’ case that the land had such a value taking into account that permission. The evidential point relates only to limb (a). Then finally (7): in concluding (at page 9 of the first decision) that it was not ‘material that the 1974 planning permission did not impose a condition as to the southern access because by that time the District Council had a controlling interest in the consortium and the County Council had assumed responsibility for providing the southern access. In these particular circumstances it was unnecessary to impose conditions in the planning permission’: (a)  whether there was any evidence upon which the Tribunal could reasonably conclude that there was any such consortium including the District Council, that the District Council had a controlling or any other interest in it or that any such interest influenced the grant of the planning permission. There are then other limbs to that question. The question as to whether there was any evidence to support a conclusion is a question of law. The approach to the submission of evidence in support of a conclusion is considered in Tersons Ltd v Stevenage Development Corporation [1963] 3 All ER 863, where at p867F Willmer LJ said: In my judgment the question whether there is any evidence to support a conclusion is no different in principle from any other question of law. The duty of an arbitrator is to find the facts and not just to set out the evidence. In a case such as the present, the fact which an arbitrator has to find in order to raise this question of law is what was the evidence on which he relied. I do not think that he performs this duty by merely appending a transcript of the whole or a large part of the evidence given before him. His duty, as I see it, is to select that which he regards as the relevant evidence, and to state factually to what it amounted. — see also at p868E by Willmer LJ and at p870A by Upjohn LJ (as he then was). The president gave no particular reason for rejecting the remission. Mr Horton says that the evidence should have been asked for on the occasion of the first remission when memory would not be so dim as perhaps now it is. It is undeniably unfortunate that this case has consumed time on an awesome scale. However, that said, I do not see how the question which had in fact been stated by the tribunal already can sensibly be approached by this court without the court knowing what was the evidential basis for the factual conclusions arrived at by the tribunal. I would accordingly remit in accordance with the request which has been made. For the reasons which I have given, I would allow this application, subject to the small amendment to the second question asked. SIR DAVID NICHOLLS V-C and KENNEDY LJ agreed and did not add anything. Application allowed.39