London Transport Executive v Congregational Union of England and Wales (Incorporated)

Compulsory acquisition of back land of a church–Section 92 of Lands Clauses Consolidation Act 1845–Whether church could claim benefit of section and require whole church premises to be acquired–Meaning of ‘part only of any house or other building’–Authorities reviewed–Held that the church was a ‘house or other building’ and that the land to be acquired (with certain minor exceptions) was a ‘part’–As church was willing and able to sell the whole, section 92 applied In this case the acquiring authority, London Transport Executive, sought a declaration as to whether the Congregational Union of England and Wales was entitled to claim the benefit of section 92 of the Lands Clauses Consolidation Act 1845 in respect of the acquisition of back land forming part of Streatham United Reformed Church. The Union claimed that the section applied, to that the Executive could be required to take the whole of the church premises, and this claim was opposed by the Executive. K Bagnall QC and K M J Lewison (instructed by the chief solicitor, London Transport Executive) appeared on behalf of the Executive, the plaintiff to the originating summons; G Ryan (instructed by Kingsford, Dorman & Co) represented the Union, the defendant to the summons. Giving judgment, GOULDING J said: This is an originating summons by which the plaintiff, London Transport Executive, seeks certain declaratory relief in connection with the compulsory acquisition of freehold property in Streatham belonging to the defendant, Congregational Union of England and Wales (Incorporated). The short question is whether the defendant may in the circumstances, as it claims to do, invoke section 92 of the Lands Clauses Consolidation Act 1845. The defendant owns its property in Streatham upon charitable trusts defined by the United Reformed Church Act 1972. I shall use the present tense for convenience in describing the property, but save where I state otherwise the description is to be understood as relating to the date of the plaintiff’s notice to treat. The property in question is an approximately rectangular piece of land fronting on the Streatham High Road, which here runs roughly north and south. According to the evidence the property is managed and used as a single unit for the purposes of the Streatham United Reformed Church. The church building itself stands on the front part of the land; it is quite big; it can hold several hundred people. At the rear–that is the west of the church–is a roughly square plot, which I shall call the back land, about the same size as the site of the church building itself. Part of this back land is a car park. At the date of the notice to treat the car park was let to a company at a rent of £500 a year, with a provision for a certain number of parking places to be available for the church congregation on Sunday mornings. The tenancy of the car park has since determined and has not been renewed in view of the pending compulsory acquisition. The rest of the back land is an area of grass with a hall standing on it, called the Carmichael Hall, and two small outbuildings. I shall read a few paragraphs from the affidavit of the church treasurer, describing the church’s activities upon the property. He deposes: The Church has a number of rooms of varying sizes attached to the main part of the Church and also has some detached rooms and outbuildings. The main part of the Church is used for the purpose of worship save for the occasional rehearsals of religious drama. There is a regular Sunday congregation of over a hundred but considerably more when there is a special service such as a parade service or Harvest Festival. The various rooms (both attached to the Church and detached) are used partly in connection with services (for example, the Minister’s Vestry for robing and the Parlour for tea after services) and to a greater extent for purposes of an educational kind which are available to the community at large. There is a large hall (attached) a small hall (attached) and the Carmichael Hall (detached) plus outbuildings used for storage. The large hall is in great demand for all kinds of activities and is in almost constant use both during the day (eg Women’s Guild Community Organisation meetings, bric-a-brac sales, Sunday School) and in the evenings (eg Brownies’ and Guides’ meetings, the Streatham United Reformed Church Badminton Club, the Drama Society). The result of the demand for this hall is that there is often an overspill into the small hall or the Carmichael Hall. This is particularly so in the case of the Drama Society, which produces two plays a year and has to rehearse in the Carmichael Hall or the small hall, although the performances are given in the large hall. The small hall is also in almost constant use. Every morning from 9 am to 1 pm it is used by a Nursery School for children aged 2 to 5. At other times it is used by the Adult Education Institute and for meetings of the Townswomen’s Guild and others. Some of the Sunday School children meet here as of a scheme for the separation of the age groups. The Nursery School children have not only had the use of the hall but have also been able to play outside on the open ground adjoining the Carmichael Hall (the blue land) and this has contributed greatly to the success of the school. The Carmichael Hall has always been put to full use by the Church. For over 20 years up until June 30 1976 it was used every weekday as a ballet school by the Miss Robinson School of Dancing. The ballet school closed down in 1976 because of the threat of compulsory acquisition of the blue land on which the Carmichael Hall is situated. 28 I omit two sentences dealing with the closure of the ballet school. The affidavit then continues: The Carmichael Hall is the headquarters of the local Scout Group known as the Fourth Streatham Common Group. They meet in the hall on at least three evenings a week. The group includes Venture Scouts, Scouts and Cubs (ie boys). The hall is also used by the Girl Guides and Brownies. These groups also make extensive use of the open land surrounding the hall for their outdoor activities; for example, they practise erecting tents and lighting fires there and also hold sports evenings and football training sessions there. Their equipment is stored in the outbuildings on the blue land. Apart from its regular use by the Scout Group the Carmichael Hall serves as an overspill for activities which cannot be accommodated in the large hall or the small hall because of other bookings. As I have said in paragraph 8 above this often applies to the Drama Society but it can also occur in relation to groups with only occasional meetings. The defendant also owns and uses a dwelling-house for the residence of the caretaker of the church. It is one of a terrace of houses abutting on the rear boundary, that is the west boundary, of the back land. The plaintiff wants to enlarge its omnibus garage, which is a large erection standing to the south of the defendant’s property. On or about September 22 1975 the plaintiff served the defendant with a notice to treat. The notice does not seek to acquire the church or the caretaker’s house, but it does embrace the whole of the back land including the car park and the Carmichael Hall. The notice to treat relies on the plaintiff’s powers conferred by the London Transport Act 1975. That Act, as is usual in such legislation, incorporates large parts of the Lands Clauses Acts and of the Railways Clauses Acts. One of the incorporated provisions is section 92 of the Lands Clauses Consolidation Act 1845. It is quite a short section and I will read it at once. It is as follows: And be it enacted, that no party shall at any time be required to sell or convey to the promoters of the undertaking a part only of any house or other building or manufactory, if such party be willing and able to sell and convey the whole thereof. The defendant claims the benefit of that section. It asks the plaintiff to take the whole property, not just the back land. By the originating summons the plaintiff prays the court to declare that the church is not a house or other building or manufactory within the meaning of the legislation and that the defendant is not entitled to require the plaintiff to acquire any property other than that comprised in the notice to treat. In order to resist the plaintiff’s case the defendant must show within the meaning of section 92 of the Lands Clauses Consolidation Act 1845 that: first, the church is a house or other building; it is clearly not a manufactory. Secondly, the land to be taken by the plaintiff, or some of it, is part of the house or other building. Thirdly, the defendant is willing and able to sell and convey the whole thereof. The third point is not in contest and I need say no more about it. If the section were free from judicial authority I should not have thought the first question difficult. In the ordinary use of language at the present day the expression ‘house or other building’ is equivalent to building, and the defendant’s church is a building. That, of course, is the defendant’s contention in this litigation. However, many reported cases show a disposition to give a very wide extension to the term ‘house’ in this context, and some of them tend conversely to restrict the interpretation of the words ‘other building.’  The plaintiff therefore asserts that a place of worship on the scale of the defendant’s church is too far removed from an ordinary domestic edifice to be within either branch of the statutory phrase ‘house or other building.’ Let me take the word ‘house’ first. As long ago as 1861 in St Thomas’s Hospital (Governors) v Charing Cross Railway Co (1861) 1 John & H 400 the hospital as it then existed in Southwark was treated as a house for the purposes of section 92. The report does not record any argument on that point, the real contest having been whether the ground to be taken by the railway company was part of the hospital within the meaning of the section. The case has nevertheless been authoritatively mentioned with evident approval as showing that ‘house’ includes a hospital. It was so cited in a leading case in the Court of Appeal, Richards v Swansea Improvement & Tramways Co (1878) 9 ChD 425, where a compound containing several buildings and yards, used mainly for manufacturing and trading purposes, but in part for the residence of the owner’s employees, was held to be a single house within section 92. James LJ, when referring to the hospital case, remarked (at the foot of p 431) that the word ‘house’ beyond all question would include a very large inn or anything of that kind built for one purpose. Similarly, in Caledonian Railway Co v Turcan [1898] AC 256, a decision on an identical provision in section 90 of the Lands Clauses Consolidation (Scotland) Act 1845, Halsbury LC and Lord Watson found it natural to speak of a warehouse as a house. Richards’ case, to which I have just referred, is also of interest on the words ‘other building,’ but only by way of dictum, for the decision was on the word ‘house.’  Brett LJ, as he then was, at p 434 of the report, explained section 92 thus: That which is treated of is premises, and there are three kinds of premises which are described. The first kind of premises described is a house; and that word has been held to mean not merely that which is a house in the ordinary sense, but a house both in the ordinary and legal sense; that is to say, it must be a house in the ordinary sense, but it may include more that a house in the ordinary sense, namely, that which is also a house in the legal sense, that is, the house and the curtilage and garden, and all that is necessary to the enjoyment of the house. The second thing which is described in that section seems to me that which is not in the ordinary sense a house, but a building which is in the nature of a house, although in ordinary language it would not be called a house. The third thing which is mentioned in the section is a manufactory, which may be a house, or may be a building, but which may be something more; that is to say, it may be more than one house, or more than one building, or it may consist of neither house nor building, but only of land used for a purpose of manufacturing. No part of that section is to diminish any other part. Each thing described is different from the others, and it is not circumscribed by the description of any of the others. Cotton LJ said at p 437: Then ‘building’ and ‘house’ I also look upon as distinct in this way, that there may be a building which could not be said either in the legal sense or in the ordinary sense to be a house, and that therefore that word was added as something different from that in order to include something not necessarily included in this word ‘house.’ Brett LJ’s dictum that the ‘other buildings’ referred to by section 92 are buildings in the nature of a house, was applied by Warrington J, as he then was, in Regents Canal & Dock Co v London County Council [1912] 1 Ch 583, where it was claimed that the whole undertaking of the canal company must be treated as a single unit for the purposes of section 92. The learned judge put the question thus, at p 589: Now it is not contended at the Bar that this undertaking comes under the expression ‘manufactory.’  It is not even suggested that it comes under the expression ‘house,’ although of course it includes a large number of houses. The argument is that it comes within the expression ‘other building,’ and no doubt in one sense it is a building. Every wall, whether a retaining wall, such as that which lines this canal, or a wall standing above the surface of the ground, is in one sense a building, but is it a29 reasonable use of ordinary language to say that the whole of Regent’s Canal, with all its appurtenances is one building within the meaning of section 92? He then read an extract from Brett LJ’s judgment in Richards’ case, and concluded thus: Now I read that passage as meaning that, no doubt, a building is something different from that which is ordinarily called a house, but the Lord Justice did say–and in my opinion he was applying, if I may say so with all respect, the true principles of construction to the language–that the words ‘other building’ used in that collocation meant something ‘in the nature of a house’ although in ordinary language it would not be called a house. Applying that view to the present case, can anybody say that this canal is a building which, though not a house in the ordinary sense, is in the nature of a house?  It is perfectly true that the undertaking as a whole comprises a number of structures which may be ‘buildings’ according to the true construction of the Act of Parliament; but is the undertaking of the canal one ‘building’ within the meaning of the Act?  In my opinion it is nothing of the kind, and on that ground I hold that the present motion fails. From the foregoing and numerous other authorities Mr Bagnall for the plaintiff seeks to extract the propositions, first that to be a house within section 92 a structure must have an existing or potential residential use; secondly, that to be another building within the section a structure must be within what he calls a domestic scale. Neither proposition is established by explicit authority. For the first Mr Bagnall in reply relied very strongly on Bacon V-C’s observations in Barnes v Southsea Railway Co (1884) 27 ChD 536, where he said at p 542: To my mind the clause in the Act is distinct, and the law is perfectly distinct. The Legislature, having to frame in words an expression which would cover the subject included in the clause, adopted this word ‘house,’ but not affecting to give any description of what a ‘house’ means, because none was necessary. The word ‘house’ had already acquired a legal signification. The passage which has been cited from Lord Coke is not new law in itself, although it is a very plain and distinct definition. The meaning of ‘house’ is domus, residence, possession–what a man has when he talks about ‘having a house.’  The meaning of the word ‘house’ in the Act of Parliament, therefore, is the meaning which Lord Coke ascribes to it in Coke upon Littleton, and it includes all that which may be called the domus. In my judgment, however, that passage is of no assistance because the learned Vice-Chancellor was not at all considering what sort of building may be called a house, but whether a paddock adjacent to a dwelling-house and garden was part of the house for the purposes of the section. Of more relevance is a passage from the judgment of Cotton LJ in Richards’ case at p 438, where he says: With regard to the word ‘house,’ it is impossible to say it is to be confined to a building used wholly, or almost wholly, for residential purposes. In fact it was conceded by Mr Dickinson, and it could not be well disputed, that ‘house’ would include business premises, and, in my opinion, that is perfectly correct, although possibly it might be said that ‘house’ points primarily to a residence. Yet it is impossible, especially after the decided cases, to say that a ‘house’ is confined to that of which the primary object is residential. I refer to a case which was so often quoted in the argument, that of St Thomas’s Hospital. No doubt persons did reside there, and the persons, while they were being treated there for diseases or for accidents under which they were suffering, did some of them live there. Yet it is impossible to say that it was a residential house, but it was held to be a house within the fair meaning of this Act of Parliament. That the word ‘house’ is not to be confined to something used for residential purposes is very apparent from what was said by Lord Hatherley, when Vice-Chancellor Wood, that you could not possibly take the theatre of the hospital and then say you were not taking part of the house. It is noteworthy that Warrington J did not hesitate to say that the Regent’s Canal undertaking included a large number of houses, even though none of the buildings enumerated in the evidence at pp 585 and 586 of the report appears to have been used for residential purposes. Then I turn to Mr Bagnall’s second proposition: that a building other than a house to be within section 92 must, though not necessarily residential, at least be on a domestic scale. There is nothing in the Regent’s Canal case to support this, and how is the scale to be defined?  A large hotel, which according to James LJ would be a house beyond all question, might be much bigger than the defendant’s church. I am not surprised in the end to find that the authorities do not constrain me to so astonishing a conclusion as to say that a substantial place of worship is not within the expression ‘any house or other building,’ and I hold that it is. I do not find it necessary to distinguish between the two limbs of the expression, but for the purpose of examining the second main question, namely whether the plaintiff was proposing to take part of the defendant’s house or other building, I will assume, without deciding, that the church is not a house but is another building. It has long been well settled what is part of a house for the purposes of section 92. In the St Thomas’s Hospital case Page Wood V-C said at p 404: The construction of the word ‘house’ in the Act of Parliament has been clearly settled by authority to comprise all that would pass by a grant of a house; and this, according to the old authorities, would include not only the curtilage, but also a garden attached to the house; a fortiori, therefore, any buildings forming part of or appertaining to the messuage would also be included. Lord Romilly is reported as having said a year earlier, in King v Wycombe Railway Co (1860) 28 Beav 104 at p 106: The principle is this: That, according to the true construction of the Act, the word ‘house,’ includes everything which will ordinarily pass under the word ‘house’ in a conveyance. Consequently, if the company require any part of that which is included under the word ‘house,’ they are bound to take the whole. The courts have, I think very justly, determined that the word ‘house,’ as used in the statute, is to be construed liberally, and that it includes all that which properly passes under the word ‘house.’ To similar effect is the passage I have already read from Barnes v The Southsea Railway Co; and in Caledonian Railway Co v Turcan, that I have also cited, Halsbury LC, at p 263, speaking of a courtyard adjoining the respondent’s warehouse, said: The piece of land with which we are now dealing is part of the curtilage of the house, is just as much part of the house as the hall. I think Lord Montcree uses the very language that I have adopted, that it is part of the vestibule of the house and just as much part of the house as if it were a separate room in the house. Mr Bagnall submits that none of that line of authority is applicable when you come to consider the words ‘other building.’  Section 92 only applies in such a case if the acquisition takes away part of the erected structure itself or the ground inside its walls. That seems to me, at first blush, a highly improbable interpretation. The purpose of the section was thus described by Cotton LJ in Richards’ case once again at p 438. He said: . . . the object and intention of this section was evidently to give a certain protection to landowners, to persons whose property was taken away from them against their will, so that no person should be required to sell a fraction only of that which ought to be regarded as a unit, when he might be very materially prejudiced by having left on his hands certain fractions only of that unit, not capable of being used efficiently when one fraction had been taken away from it. 30 If, with that object and intention, Parliament gives rights to owners of houses, and in the same breath to owners of other buildings, how can one suppose, without the slightest indication in the language, that the appurtenant curtilage is to be included in the one and excluded in the other case?  The distinction is, to my mind, capricious and unwarranted. But no, says Mr Bagnall, it is necessary to avoid the absurdity of forcing an undertaker to buy a vast building because he needs a litle bit of open ground close to it, perhaps of trivial value to the landowner. That effect is, however, inherent in the other limbs of the enactment, if you think of a ducal mansion or a big hospital under the word ‘house,’ or of an immense industrial site under the term ‘manufactory.’  It long ago became common practice to exclude possible extreme applications of section 92 by special provisions in private and local statutes, and for recent general legislation on the subject see section 8(1) of the Compulsory Purchase Act 1965. Therefore, looking at the matter apart from reported authority, I find no force in Mr Bagnall’s submission on this point. As to authority, I think that the argument for the plaintiff is probably inconsistent with Turner LJ’s exposition of section 92 in Grosvenor (Lord) v Hampstead Junction Railway Co (1857) 1 De Gex & J 446 at pp 453 and 454. It might, if correct, have been employed with possibly decisive effect in Caledonian Railway Company v Turcan, already cited, and in Genders v London County Council [1915] 1 Ch 1, a case like the present of a nonconformist church, but there is no trace of its consideration in either of those authorities. Of course an argument is not answered by the mere omission of eminent persons to raise it when they might have done. However, the first appearance of Mr Bagnall’s important distinction after the Act has been in use for more than a century can only strengthen my view that it is plainly unsound. I ask then, applying the test furnished by the authorities, does the land to be taken by the plaintiff include part of the defendant’s church?  I will not concern myself with the car park or the caretaker’s house. Special considerations may perhaps apply to them; to the car park because it was subject to a tenancy at the date of the notice to treat; and to the caretaker’s house because of its separate position and structure as part of a terrace of houses. I will concentrate my attention on the Carmichael Hall and the plot of grass, with two small outbuildings, on which it stands. On the affidavit evidence, some of which I have read, I am of the opinion that at the date of the notice to treat those subjects were an integral part of the church property, and should, in accordance with the authorities on the section, be treated as part of the church within section 92. The contrary, indeed, was not strongly argued on the facts, reliance being placed on the propositions of law which I have rejected. It follows that in my judgment the plaintiff is not entitled to the declarations claimed and the originating summons falls to be dismissed. The summons was dismissed with costs.