London Regional Transport v Imperial Group Pension Trust Ltd and another

Compulsory purchase — Effect of acquisition on a right of way and associated rights enjoyed by adjoining property — Acquisition governed by powers under section 14 of London Transport Act 1964, which provided that private rights of way over the compulsorily acquired land would be extinguished, but persons suffering loss by the extinguishment would be entitled to compensation — The right of way and other rights in question had been granted to the defendants’ predecessors in title by the plaintiffs’ predecessors in title — Notice to treat by the acquiring authority had been served in respect of the land over which the rights subsisted but no notice to treat had been served in respect of the rights themselves — The question which arose on the originating summons taken out by the plaintiff authority was whether, by virtue of section 5 of the London Transport Act 1969, incorporating section 14(1) of the 1964 Act, the plaintiffs held the acquired land freed and discharged from the rights over it granted to the defendants’ predecessors in title by a deed of grant in 1939 — Held that there was no doubt that this was the position — There was no requirement that a notice to treat should have been given to the defendants or their predecessors in title — The position was analogous to that which obtains under standard compulsory purchase procedure, where the person entitled to an easement over land acquired has no right to receive a notice to treat but has a claim for injurious affection if he in fact suffers injury — The difference was that here the statute expressly gives a right to compensation — The 1964 Act provides for the statutory extinction of the rights plus a right to compensation — Declaration accordingly (subject to the possibility of proceedings on an issue of estoppel) The following cases are referred to in this report. Badham v Marris (1881) 45 LT 579 Bedford (Duke of) v Dawson (1875) LR 20 Eq 353; 44 LJ Ch 549; 33 LT 156 21 Clark v School Board for London (1874) LR 9 Ch 120; 43 LJ Ch 421; 29 LT 903 Swainston v Finn and Metropolitan Board of Works (1883) 48 LT 634; 52 LJ Ch 235 This was an originating summons by the plaintiffs, London Regional Transport, raising a question as to whether the acquisition by the plaintiffs of a piece of land under statutory powers put an end to rights over such land which were appurtenant to adjoining properties in Wigmore Street, London W1, belonging to the defendants, Imperial Group Pension Trust Ltd and Imperial Group Pension Group Investments Ltd. James L Munby (instructed by Freshfields) appeared on behalf of the plaintiffs; Jonathan Brock (instructed by Osborne Clarke, of Bristol) represented the defendants. Giving judgment, SIR NICOLAS BROWNE-WILKINSON V-C said: The defendants, Imperial Group Pension Trust Ltd and Imperial Group Pension Group Investments Ltd, are the owners of the freehold of certain properties in Wigmore Street, London W1. Those properties used to back on to a piece of land which was used by Debenhams Ltd as a car park. By a deed dated May 11 1939 Debenhams, as owner of the land at the rear, granted to the defendants’ predecessors in title certain rights: first, a right of access to the rear of the Wigmore Street properties; second, a turning circle for use in conjunction with that right of access; third, a right of access to a fire escape serving the upper storeys of the Wigmore Street properties. The plaintiff, London Regional Transport, is the successor of the London Transport Board, which took statutory powers for the construction of what is now the Jubilee Line and for that purpose acquired the land at the rear of Wigmore Street, previously owned by Debenhams, by way of compulsory purchase for the purpose of constructing the Jubilee Line. The Jubilee Line has now been constructed and is in operation. The surface land is not required for the purposes of the plaintiff’s undertaking and it is proposed to sell it. The question which arises in this case is whether the rights appurtenant to the Wigmore Street properties and granted by the 1939 deed are or are not exercisable over the land compulsorily acquired by the plaintiff. There is no dispute that the land to the rear was within the land authorised to be acquired. Authority for the acquisition was contained in the London Transport Act 1969, section 5 of which contained power to take the land, including the land in question here. Section 16 of the London Transport Act 1969 incorporated section 14 of the London Transport Act 1964 which provides as follows: 1. All private rights of way over any land that may be acquired compulsorily under this Act shall, as from the acquisition of the land, whether compulsorily or by agreement, be extinguished. 2. Any person who suffers loss by the extinguishment of any right under this section shall be entitled to be paid by the Board compensation to be determined, in case of dispute, under and in accordance with the Lands Clauses Act. The notice to treat which was served on the owner of the land to the rear of Wigmore Street was served on September 6 1971; notice of entry was given on November 26 1971, and the plaintiff went into possession in April 1972. On November 8 1972 the sale of the Wigmore Street properties to the defendants in this case was completed by the registration on the property register of the defendants as registered proprietors of the Wigmore Street properties. The register contains a note referring to rights of way and usage contained in the agreement of May 11 1939. Thereafter negotiations apparently continued for some time between Debenhams and the plaintiff. They culminated on July 29 1977 and Debenhams’ claim for compensation was finally settled; the property at the rear was transferred to London Regional Transport and the plaintiff was registered as proprietors of the land at the rear on August 12 1977. Again there is registered against the charges register of the plaintiff’s land a reference to the 1939 deed. Throughout this period there was correspondence passing between the defendants of the one part and the various organs of the plaintiff of the other part as to the position relating to the rights under the 1939 deed, in the course of which a number of confusing and not always consistent things were said. For the purposes of the matter I am currently dealing with, nothing turns on that correspondence, though much may at a later date turn on it. The only question that arises on the originating summons as it stands at the moment is the question whether, by virtue of section 14(1) of the 1964 Act as incorporated in the 1969 Act, the compulsory acquisition of the land from Debenhams vested the land in the plaintiff freed and discharged from the rights in favour of the Wigmore Street properties contained in the 1939 deed. In my judgment, there is no doubt that it did. The normal rule in relation to easements affecting land which has been compulsorily acquired, in the absence of such a special clause as section 14 in the present case, is that the acquiring authority is not bound to give notice to treat to the person entitled to the easement. On acquisition of the land the person entitled to the benefit of the easement over the land has a claim for injurious affection if in fact injured, under the Lands Clauses Act, but the owner of the easement is not entitled to notice to treat or to compensation for acquisition of the easement. That that is so is demonstrated by two decisions: Clark v School Board for London (1874) LR 9 Ch 120; and Duke of Bedford v Dawson (1875) LR 20 Eq 353. Those cases clearly establish that in such a case no notice to treat need be given to the person entitled to the benefit of the easement over the land acquired. This kind of case, however, is rather different. Section 14 is an express provision which in terms extinguished the easement. It did not merely give a right to compensation for injurious affection. Such an express provision extinguishing the easement over the land acquired has been considered in cases under the Artisans and Labourers Dwellings Improvement Act 1875, which contained a clause providing that upon the purchase by the local authority of lands required for the purpose of carrying into effect an improvement scheme all rights of way and all other rights and easements ‘shall be extinguished’ and provided for the payment of compensation for such extinction. In two cases it has been held that the persons entitled to a right of support or other right of the nature of an easement over the land compulsorily acquired under the Artisans and Labourers Dwellings Improvement Act were not entitled to injunctions to prevent the doing by the acquiring authority of acts which would, apart from the statutory provision, have interfered with their rights of support. It was held in those cases that the effect of the Act was to extinguish the easements. The two cases are Badham v Marris (1881) 45 LT 579 and Swainston v Finn and Metropolitan Board of Works (1883) 48 LT 634. In neither of those cases was the specific question raised in argument or dealt with in the judgment whether the owner of the easement so extinguished ought to have been given notice to treat. The only question I have to decide is whether under section 14 notice to treat ought to have been given to the defendants’ predecessors in title or the defendants on the acquisition of the land. I have no doubt that there was no need to serve notice to treat on the persons entitled to the benefit of the rights under the 1939 deed. Section 14 makes it clear that there is a distinction between the land which is to be acquired under the Act and easements or rights of way over that land. It seems to me clear that what is being acquired is the land itself; plainly in relation to that acquisition a notice to treat has to be given. But it seems to me equally clear that there is no compulsory or other acquisition of the easement from the person who is entitled to it. I can see nothing in the Act which would either require or entitle the acquiring authority to serve notice to treat on the person entitled to the rights of way. All that there is is a statutory extinction of those rights coupled with a right to compensation. In my judgment, bearing in mind the background of the general law on the service of notice to treat on those entitled only to easements over land they have acquired, I can see no ground for departing from the general rule and saying that notice to treat ought to have been given in this case. That may well be an unfortunate position in that the person whose rights have been extinguished may not have notice of that extinction. But it is accepted in the present case that the failure to claim compensation until now does not bar the defendants from claiming compensation even at this late stage and, therefore, no harm is done by the failure of the defendants to have the matter brought to their attention or to claim compensation previously. However that may be, in my judgment the statutory position is clear. There was no need or right to give notice to treat and the effect of compulsory acquisition of the land from Debenhams was to extinguish the rights of the defendants over the land. There is a further point that emerged at a late stage. It is pointed out that the 1939 deed, on its face, confers four different rights. The first is a right to pass and repass with vehicles at the rear of the Wigmore22 Street property. That is undoubtedly a right of way and, in my judgment, has plainly been extinguished. The second right is a right to use part of the land belonging to Debenhams to enable vehicles to turn round. It is said that that is not a right of way. The third right is a right to load and unload vehicles at the rear of the Wigmore Street properties in the form there mentioned. It is said that that also is not a right of way. Finally, there is the fire escape access. That it is accepted is a right of way. What Mr Brock says is that the right to turn vehicles and the right to load and unload, not themselves being rights of way, do not fall within section 14 of the 1964 Act and have, therefore, not themselves been extinguished. I will assume that he is right and that they are not technically rights of way — though I do not decide that. Even on that assumption, those two rights are dependent for their exercise on the existence of a right of way to get the vehicle to the point where it turns or unloads. The right of way to get to that point having been extinguished, it is impossible for the right to turn or the right to unload to continue to exist in limbo. In my judgment, those rights necessarily ceased to exist when the rights of way on which they depended were extinguished. Accordingly, subject to the question of estoppel, I will make a declaration that the land is free from any of the rights contained in the 1939 deed. After hearing counsel on a question raised by the defendants in regard to estoppel, THE VICE-CHANCELLOR said: I will make the declaration you ask but direct that the order should not be drawn up for seven days, and if within that time fresh proceedings are launched by the defendants putting forward a claim in estoppel and asking for relief by way of injunction, then my order will continue to be not drawn up until that action is dispensed with.