Development land — Compulsory acquisition in 19th century for building of railway — Present-day development — Whether original owners from whom land compulsorily acquired entitled to buy back land from current owners at original purchase price — Whether provisions allowing them so to buy back land subsequently repealed — First instance decision in favour of original owners — Appeal allowed
Most of the 125 acres of largely derelict land to the north of King’s Cross Station which were intended to form the terminus of the channel tunnel rail link and a large commercial development were compulsorily acquired in the 19th century. The acquisition was made pursuant to the Great Northern Railway Act 1846, which empowered the company of that name to build the railway between London and York. The land had since passed into the ownership of the British Railways Board and National Carriers Ltd, who were looking to the profits from the development as a means of financing the construction of the new terminus. At first instance, Hoffmann J held that sections 57 and 102 of the 1846 Act enabled the Special Trustees of St Bartholomew’s Hospital and the Church Commissioners, as successors of those from whom parts of the land were compulsorily acquired, to buy back three areas of land, amounting to some 52 acres in all, for the prices at which they originally had been acquired: see [1990] EGCS 40. There was a fourth area of some eight acres, which was acquired by agreement and in respect of which it was held that there was no right to buy back the land. The aggregate of the sums paid by the Great Northern Railway Co for the 60 acres was £66,407, an average of more than £1,100 per acre and an infinitesimal proportion of the current value. If the judge’s decision stood, the financial consequences to both sides would be enormous. The hospital and the Church Commissioners did not seek to retain or develop the land themselves. They sought to obtain its current value. For the land for which the predecessors obtained full value at the time, they would pocket windfalls of vast proportions. On the other side, if British Rail and National Carriers had to pay out the current value of more than two-fifths of the land required for the development, its cost to them would be vastly increased. The board and National Carriers appealed and there was a cross-appeal by the hospital regarding the fourth area of land.
Held The appeal was allowed and the cross-appeal was dismissed.
1. The question was whether sections 57 and 102 of the 1846 Act were still effective in 1992 or whether they had been repealed by section 43 of the London and North Eastern Railway Act 1923; or by section 9(1) of the London and North Eastern Railway Act 1935 or by section 59(1) of the British Transport Commission Act 1949.
2. The court was in agreement with the judge that sections 57 and 102 would still be effective today and would entitle the respondents to buy back the land in issue for a sum not exceeding the price paid in 1846 unless they had been repealed.
3. Section 43 of the 1923 Act dealt with two categories of land: (a) land which had been acquired in the past adjoining or near to any railways, docks or stations; and (b) land acquired under the 1923 Act itself. The exemption from a duty to sell or dispose of land in those categories and the freedom to hold, use or sell such land was governed by the phrase “and which lands…are not immediately or may not hereafter be required for the purposes of the undertaking”.
4. Hoffmann J was right to hold that the two limbs of the phrase quoted either side of the word “or” applied distributively; “not immediately required” applied to land in (b). The land in issue came within (a). Accordingly, there was no implied repeal by section 43.
5. Section 9(1) of the 1935 Act empowered the company presently and retrospectively “on such terms and conditions as they think fit, to sell, exchange, lease, mortgage or otherwise dispose of any land vested in the company … which is not at the time of such sale or other disposition being used by the company’s undertaking whether or not such land had been previously so used…”. The power given by those words was wholly inconsistent with the duties imposed under sections 57 and 102; therefore, those sections had to be impliedly repealed by section 9(1).
6. Moreover, section 59(1) of the 1949 Act expressly repealed sections 57 and 102. Both provisions dealt with land not required by the company for the railway purposes for which they had been acquired by private statute and enjoined that it be compulsorily sold or disposed of at specified times with priority to other specified persons. Those were points of similarity sufficient to bring the provisions within section 59. One had to apply a purposive construction of the section, which was clearly intended to sweep away all private rights remaining under the 19th century statutes which might impede the efficient use of the Transport Commission’s land in the national interest.
Edward Nugee QC and Terence Etherton QC (instructed by Wilde Sapte) appeared for the Special Trustees of St Bartholomew’s Hospital; and David Lowe QC and Charles Turnbull (instructed by Waltons & Morse) appeared for the Church Commissioners; Gavin Lightman QC and John Whittaker (instructed by Nabarro Nathanson) appeared for the British Railways Board; and Robert Reid QC and Simon Berry QC (instructed by McKenna & Co) appeared for National Carriers Ltd.
