Lewis v Hackney London Borough Council

Compulsory purchase — No compensation after 17 years — Appellant did not adopt normal procedure of challenging compulsory purchase order under the Acquisition of Land (Authorisation Procedure) Act 1946, which was then in force — Writ claiming damages served by appellant some 15 years after acquiring authority had entered on the land — Limitation Act not pleaded by authority — Provision in 1946 Act that, subject to the procedure laid down for an application to the High Court, a compulsory purchase order ‘shall not . . . be questioned in any proceedings whatsoever’ The appellant’s terrace house was one of a number of houses in the same block included in a compulsory purchase order made in 1969 — The Secretary of State for the Environment, on the recommendation of an inspector, excluded the houses from the order but directed that the larger part of each of the respective gardens should remain within it — Purporting to act under the order, the acquiring authority took possession of a part of the appellant’s garden, some 58 ft in depth, in 1973 — Despite the passage of nearly 17 years no compensation had yet been paid to the appellant — He did not pursue the procedure then available to him under the Acquisition of Land (Authorisation Procedure) Act 1946 (later replaced by the Acquisition of Land Act 1981) to challenge the validity of the compulsory purchase order by application to the High Court — However, in 1987 the appellant, acting in person, commenced the present proceedings by writ, claiming £50,000 damages from the authority as compensation for their occupation and use of the land — He described his claim as for breach of a statutory contract The respondent authority relied upon the compulsory purchase order as entitling them to enter on the appellant’s land and pointed out that the appellant was entitled to compensation under the Compulsory Purchase Act 1965, to be determined in default of agreement by the Lands Tribunal — In fact the authority did not refer the matter to the tribunal until after the commencement of the appellant’s action — The authority did not plead the Limitation Act 1980 in answer to the appellant’s action, although it would appear that they would have been entitled to do so — However, Morritt J dismissed the plaintiff’s claim and he appealed to the Court of Appeal It was clear that as a result of para 16 of Schedule 1 to the Acquisition of Land (Authorisation Procedure) Act 1946 it was not open to the appellant to challenge the validity of the compulsory purchase order before the High Court or the Court of Appeal — The main point made by the appellant in the present proceedings was, however, that the authority had failed to prove that they were entitled to enter on his land because they could not establish that a notice to treat had been served — The authority’s case was that a notice to quit had in fact been served by recorded delivery in 1971 and a notice of entry given in 1973 — They could not positively prove service by recorded delivery after this lapse of years, but there was evidence in subsequent correspondence with valuers or surveyors which supported the authority’s assertion that a notice to treat had been served — The judge’s conclusion to that effect had been justified — Other points raised by the appellant were rejected, such as a question whether the notice to treat had been signed by the proper officer and a suggestion that it was not sufficiently specific — The court also rejected a submission that it was unfair for the judge to have made an award of costs against the appellant, still without compensation, 17-18 years after the event, in favour of an authority whose documentary evidence had not even been complete — The appellant’s appeal was, however, dismissed with costs The following case is referred to in this report. Smith v East Elloe Rural District Council [1956] AC 736; [1956] 2 WLR 888; [1956] 1 All ER 855; (1956) 54 LGR 233; 6 P&CR 102, HL This was an appeal by Earl J Lewis, the plaintiff below, from the decision of Morritt J dismissing his claim against the Hackney London Borough Council, the present respondents, for damages as compensation for the taking and use of the greater part of his rear garden at 9 Sanford Terrace, London N16. The appellant appeared in person; Miss Christiana Hyde (instructed by the director of legal services, London Borough of Hackney) represented the respondents. Giving judgment, GLIDEWELL LJ said: The appellant, Mr Lewis, is now the owner of a dwelling-house at 9 Sanford Terrace, London N16. When it was originally purchased as a residence for him and his late wife it was registered in his name, but on August 30 1963 that was changed and it was registered in the name of Mrs Lewis. Sadly, she died, I am not sure exactly when, but it was registered again in his name on December 19 1978, so presumably Mrs Lewis died in that year. The house is one of some architectural merit. It is the end of a terrace of houses in Sanford Terrace, which formerly had quite long gardens at the rear. On May 19 1969 the respondent council, Hackney London Borough Council, made the Smalley Road Compulsory Purchase Order 1969 under Part V of the Housing Act 1957, that is to say, the order was for the purpose of providing housing accommodation. No 9 Sanford Terrace and all the houses in the same block, which in the order were reference nos 22 to 29 inclusive, were included in the order with their gardens. There were a number of objections to the confirmation of the order, although I think not one from Mrs Lewis herself, but certainly there were objections to the inclusion of this group of houses in the order and in the usual way an inquiry was held into those objections. The inspector recommended that with regard to no 9 and the other houses in the terrace the houses themselves should be excluded from the order, together with a small area of land behind them, but that the greater part of the gardens should remain within the order. The16 Secretary of State for the Environment accepted this recommendation and confirmed the compulsory purchase order with an appropriate modification. That decision was notified by a letter dated June 2 1971. Purporting to act under the authority of that compulsory purchase order, and jumping ahead now, Hackney London Borough Council on May 9 1973 took possession of the greater part of the rear garden of 9 Sanford Terrace, together with the rear gardens of the adjoining houses. Altogether the land they took was a plot some 58 ft in depth. Despite the fact that that is now nearly 17 years ago, no compensation has yet been paid for the acquisition of the land. At that time, of course, Mrs Lewis was still alive. In this action, which was commenced by writ issued and served together with the statement of claim on December 1 1987, Mr Lewis claims £50,000 damages from the borough council as compensation for their occupation and use of the land. His claim, which he drafted himself, is not in terms framed in trespass, but in his amended statement of claim for breach of what he describes (not inaccurately) as a statutory contract. The defence relies on the compulsory purchase order as entitling the council to enter the land, asserts that the plaintiff is entitled to compensation under the Compulsory Purchase Act 1965, and says that in default of agreement as to compensation the issue as to the amount of compensation has been referred to the Lands Tribunal. However, that did not happen until the council referred it by a notice dated January 22 1988, which, as Mr Lewis reminds us, is after he started this action. In his amended reply to the defence, Mr Lewis said: I deny that the Defendants are entitled, at this time, to the powers of the provisions of the Compulsory Purchase Order made in 1969. Since the Defendants have exhausted the conditions laid down in the Compulsory Purchase Act of 1965, CH56 in particular, Section 4 which sets a time limit, also Section 22 Sub-section 3 and other provisions of the Act. He also said, in the amended reply in explanation of, that: No Notice to Treat has ever been served in relation to the property No 9 Sanford Terrace, N16 nor any part thereof. The time limits imposed by the Act have long expired and he referred to various provisions of the Compulsory Purchase Act. He also said: The Defendant rejected a claim for compensation and abandoned the order and procedure in spite of reminders for payment by refusing to pursue acquisition within the time limits or reasonable time, as a Notice to Treat cannot be forever. It is entirely correct that the Compulsory Purchase Act 1965 does provide a time-limit within which, after a compulsory purchase order has been confirmed, steps must be taken to carry forward the purchase of the land. The first step which must be taken within the time-limit is the service of the notice to treat and it is right, therefore, as a matter of law, that if within four years of the confirmation by the Secretary of State of the compulsory purchase order no notice to treat was served, then the council were not entitled to proceed now. However, that really is not the point, because the council did in fact enter on the land much less than four years before the confirmation by the Secretary of State had expired. The real point is that if they did not serve a notice to treat then they were not entitled to serve a notice of entry, and if they did not serve a notice of entry then they were not entitled to enter. They purported to act under the powers contained in section 11 of the Compulsory Purchase Act 1965, subsection (1) of which provides: If the acquiring authority have served notice to treat in respect of any of the land and have served on the owner, lessee and occupier of that land not less than fourteen days notice, the acquiring authority may enter on and take possession of that land, or of such part of that land as is specified in the notice; and from that time any compensation, the subsection goes on to provide, shall carry interest. That is what the council purport to have done. In the present proceedings, on May 4 1989, after a hearing, Morritt J dismissed the plaintiff’s claim and gave judgment for the council and Mr Lewis now appeals to this court. It is apparent that when these proceedings were commenced some 15 years had elapsed since the date when the compulsory purchase order was confirmed and something over 14 years since the council had entered on the land, and at first sight, quite apart from anything else, the council had a perfect answer to the claim in the provisions of the Limitation Act 1980, which provide that the time for bringing actions for breach of contract is six years and in respect of trespass to land is 12 years, both of which periods had of course expired. However, for whatever reason, the council did not plead limitation as a defence. Had they done so, it is difficult to see what answer there would have been to that defence. At the trial, I think at the conclusion of the trial, in the closing speech, their counsel sought to rely upon limitation, but the judge held, and it was a matter for his discretion, that not having been pleaded, that defence was not open to him and he did not allow it to be raised. However, it is only right to say that in so far as there are deficiencies in the evidence resulting from the lapse of time the plaintiff should not gain any benefit from those deficiencies. If after the lapse of so long the council’s records are not as complete as they might have been had the proceedings been taken at a very much earlier stage, then that is not something upon which Mr Lewis can base his claim. I return to say something about the procedure in this case. Before the judge, Mr Lewis in his argument raised issues which the judge summarised as follows at p 9 of his judgment: (1)   Was the compulsory purchase order valid? (2)   Was the Notice to Treat ever served? (3)   If it was was it sufficiently specific? (4)   Was entry made in accordance with Section 11 of the Compulsory Purchase Act 1965? (5)   Did the local authority abandon the compulsory purchase order . .? As to the validity of the compulsory purchase order, the judge made some brief observations upon that, but nobody seems to have referred him to the provisions relating to challenges to compulsory purchase orders contained in the legislation. The legislation that was in force at the time when this compulsory purchase order was made was the Acquisition of Land (Authorisation Procedure) Act 1946. Schedule 1 to that contains in para 15 the well-known statutory procedure whereby a person aggrieved by a compulsory purchase order is entitled to challenge it, provided that he does so by application made to the High Court within six weeks of receiving notice of the confirmation of the order. Para 16 of the Schedule then provides: Subject to the provisions of the last foregoing paragraph, a compulsory purchase order . . . shall not, either before or after it has been confirmed . . . be questioned in any legal proceedings whatsoever. And so as a matter of law this is not a limitation defence; it is a requirement that the courts are not empowered to deal with a challenge to a compulsory purchase order. The validity of the compulsory purchase order could not be challenged before Morritt J and may not be challenged before us. If any authority were needed for the clear words of the statute it is the decision of the House of Lords in Smith v East Elloe Rural District Council as long ago as [1956] AC 736. That brings one to what really was the major point made, both before Morritt J and before us, by Mr Lewis, that is to say, that the council had failed to prove that they were entitled to enter because they had failed to prove that a notice to treat had been served. The council’s case was that under section 4 of the Compulsory Purchase Act 1965 they had three years within which to exercise their power to acquire the land and under section 5 of that Act they did so by serving a notice to treat on the landowner and then, as I have said, they were entitled to enter on the land later by serving a notice of entry under section 11. The notice was required to be served personally or might be served by post. In the documents produced by the council there is a copy of a letter on their file dated December 2 1971 addressed to Mrs Lewis. It is obviously a standard letter and the name of the addressee is written in manuscript. It read: Dear Sir(s)/Madam, The Smalley Road Compulsory Purchase Order, 1969 and then in manuscript: Part of Garden [rear of] 9 Sanford Terrace N16 I now enclose by way of service Notice to Treat together with three forms of Claim which should be completed and returned to me in duplicate. And then there follows a copy of a purported notice to treat addressed to Mrs Lewis, referring to her as owner of part of the garden of no 9 Sanford Terrace, and in ordinary form it tells her that the council, being authorised to do so by the compulsory purchase order, required to purchase and take the land described in the schedule and delineated and coloured pink on the plan therewith,17 which last-mentioned schedule and order are deposited at the underwritten offices of the council, and then the schedule refers in terms to parts of the rear gardens of nos 9 to 16 Sanford Terrace. We have not seen, because the judge did not see, what the plan was which was deposited at the council offices to which that schedule referred. The original plan was the plan with the compulsory purchase order which comprised the whole of the property, that is to say the houses and the rear gardens. When the Secretary of State approved the compulsory purchase order but deleted the houses he must have indicated in some way, it is reasonable to assume, what it was he was deleting by means of a plan, and it is a reasonable assumption that the plan at the council offices thereafter showed what it was he was deleting. Be that as it may, the first question was, had the notice to treat been served?  Following the service of the notice to treat, Mrs Lewis, or Mr Lewis on her behalf, instructed first one and then another valuer or estate agent to act for them and to seek to negotiate compensation. There is no doubt that those gentlemen did enter into either negotiation or correspondence with the council and nobody made any point at all, on the documents before us at any rate, to the effect that a notice to treat had never been served. On March 20 1972, some three and a half months after the council served, if they served, a notice to treat, the borough valuer wrote to Mrs Lewis (and Mr Lewis accepts this letter was received) a letter saying: I attach two copies of a drawing — and it gives the number — showing the extent of the back garden land of your property now included in the Compulsory Purchase Order, and I hope that this provides you with sufficient detail to enable you or your surveyor to complete your claim form in connection with the proposed purchase by the Council. That is a plan dated, as Mr Lewis points out, December 15 1971, that is to say after the date of the notice to treat, with dimensions added on February 29 1972, which shows a dimension of 14 ft behind the rear, that is to say westerly, wall of the house, up to the boundary of the land which the council were intending to acquire. Nobody on Mrs Lewis’ behalf made any objection that that had not been notified to her before or that it was not an accurate record of something which had happened. Following that, on April 18 1973, the council served a notice of entry on Mrs Lewis, saying that they intended to enter after the expiration of 14 days and in due course, as I have said, in May they duly did enter and they have been in possession of the land ever since. In fact they have constructed a road over the land, immediately to the rear of what is now the garden of no 9 Sanford Terrace. The council called a witness to the effect that the council’s procedure was to serve notices to treat by recorded delivery post. If the letter was returned, indicating that it had not been delivered, then personal service would be effected on the premises and on the occupier or on the owner if the owner was present in the premises. There is no record that the council could find that the letter was ever returned. But they cannot positively prove, and they could not before Morritt J positively prove, service by recorded delivery, because they did not any longer have the relevant section of the recorded delivery receipts. They did have some for an earlier date and they had some for a later date, but they did not have the record for the date on which they said that they served notice to treat. As I have said, there was the later correspondence which the Lewises undoubtedly did receive and there was correspondence in 1973 between Mrs Lewis and the surveyor acting on her behalf. At that time she and her husband were about to go off to Trinidad. Indeed, the letter of May 9 1973 says ‘we leave for Trinidad today’, and this is a long letter of instructions to her surveyor as to how steps should be taken to improve the house and thanking the surveyor for his co-operation in attempting to push this matter to an early completion. There is no suggestion that there is anything wrong with the compulsory purchase order except that the point is made that there is an error in the measurements shown in the sketch, that they should have left 16 ft, not 14 ft, behind the house. That is the only point that was made. Upon that evidence Morritt J concluded, on the balance of probability, that the notice to treat had been served by recorded delivery. He rehearsed the evidence which I have sought to rehearse in some detail, and he said: ‘I conclude that the notice to treat was properly served and must have been sent to Mr Goldblum when it was misfiled, but it is now either lost or not available’. In my judgment, there was ample evidence upon which Morritt J could conclude that that was the position and I cannot find that Mr Lewis’ argument to the contrary, persuasively though he put it, is sufficiently persuasive to overturn that conclusion by the judge. Mr Lewis’s next point was that there is no evidence that the notice to treat was ever signed by the chief executive of the council. He bases that upon the fact that the only document produced by the council is their file copy, which does not bear a facsimile signature upon it, whereas the copy they produced from their file of the notice of entry does bear a facsimile signature upon it. Therefore he asks us to accept that even if there was a notice to treat we should not conclude that it had been signed by the chief executive. I must confess I do not find that a persuasive argument at all. After all this time it is not surprising that the only document the council have on their file, indeed the only document they would normally have had on their file had this point been taken back in 1972, would be a copy without the signature on what was, after all, a carbon copy of the original document. A more serious point is whether the notice to treat was sufficiently specific. Section 5 of the Compulsory Purchase Act says that every notice to treat shall give particulars of the land to which the notice relates. Mr Lewis’s point is that simply to refer to part of the rear garden of no 9 does not give sufficient particulars. If that stood alone I would agree. It is not good enough simply to describe a piece of land in some such vague terms as that. A proper way of indicating precisely what is being acquired under a compulsory purchase order and under a notice to treat is by reference to a plan. I have already expressed the view that the compulsory purchase order, when confirmed, must have referred to and been accompanied by an amended plan and the notice to treat specifically referred to that plan. I know the council could have produced it in the proceedings before Morritt J. I do not know why they did not, but that there must have been such a plan I am confident, and I cannot find that the notice to treat was therefore insufficiently specific. But the matter does not end there because, as Morritt J pointed out, if it was not sufficiently specific one would have expected either Mrs Lewis or her surveyor on her behalf, when served with the copy of the plan showing the area of land which the council wanted to take, in March 1972, or when served with the notice of entry in April 1973, to say, ‘Oh, this is not in accordance with a valid notice to treat’. But no such point was made at that time and that can only support the conclusion that not merely had a notice to treat been served but that it was sufficiently specific. Mr Lewis has made a number of other points. He has referred to what he calls hearsay in the notice to treat. By that, as I understand it, he refers again to what he considers to be the insufficient clarity of the reference in the notice to treat to what is being acquired. He also started his submissions to us by referring us to the fact that after the council referred the assessment of compensation to the Lands Tribunal, some solicitors acting on his behalf purported to concur in the reference. He argues that those solicitors had no authority to concur, and indeed he shows us that he has not merely commenced but has succeeded in an action against those solicitors arising out of this matter. For my part, I cannot see that that has any relevance to the present action. It may have relevance to the Lands Tribunal proceedings, although for the moment I do not know what that relevance is, but as far as the present action is concerned, Mr Lewis tries to persuade us that in some way Morritt J’s view of the situation was coloured by what he understood to be the fact that Mr Lewis had instructed solicitors, at least in relation to part of his affairs. I cannot find that the learned judge was in any way motivated in his conclusions by his belief that Mr Lewis had taken legal advice in relation to other matters, whether such a belief was right or wrong. Though Mr Lewis, as I say, has argued his case with great clarity, I cannot find in relation to the substance of this matter that there is any fault to be found in Morritt J’s judgment. The last matter Mr Lewis urged was that, at the very least, we should overturn the award of costs which the learned judge made against him. Mr Lewis says that here he is, some 17 to 18 years after the event, still without compensation for this land having been agreed, let alone made, and that it was hard under the circumstances that the council, whose documents are not complete, should have an award of costs against him. The answer to that, I am afraid, is that costs normally follow the event. He brought this action. He failed in18 it. It was a matter for the discretion of the judge, a discretion with which we in this court cannot properly interfere, as to whether or not to make an award of costs in the proceedings against him. Accordingly, for those reasons I would dismiss this appeal. TAYLOR LJ and Sir George WALLER agreed and did not add anything. The appeal was dismissed with costs.