Compulsory purchase — Procedure — Service of notices — Appeal from decision of Lands Tribunal — Owner of property subject to compulsory purchase order resident in Australia, but his brother lived in England near the subject property — Acquiring authority by mistake served notice to treat and notice of entry on the brother — In reply to a letter from the Lands Tribunal the owner wrote to say that he gave his brother full authority to act in the matter on his (the owner’s) behalf — The question before the tribunal, and which gave rise to the appeal, was whether, even if the owner had appointed his brother his agent to deal with the property, this was sufficient for the purpose of the Compulsory Purchase Act 1965 to constitute the receipt of the notices by the brother’s good service within the Act — Section 30 of the Act provided that notices must be served personally or left at the last usual place of abode; or if the owner was ‘absent from the United Kingdom or cannot be found after diligent inquiry has been made, may be left with the occupier of the land or, if there is no occupier, shall be fixed upon some conspicuous part of the land’ — Service was not in fact effected in any of these ways, but the member of the Lands Tribunal held that the authority given to the brother was sufficient to enable the sending of the notices to him to constitute good service — Held, following the decision of North J in Shepherd v Corporation of Norwich, that the member of the tribunal erred in this respect — Section 30 of the 1965 Act constituted a complete code for the service of notices under the relevant part of the Act and service on an agent was not in accordance with that code — A concession made by the brother in regard to the validity of the notices would have to be considered by the tribunal to see what effect it had — Appeal allowed and case remitted to the tribunal
This was an
appeal by case stated from the decision of the Lands Tribunal (Mr V G Wellings
QC) that a notice to treat and notice of entry in respect of a dwelling-house
at 11 Westmoreland Road, Knowsley, together with a garage adjoining at 7
Westmoreland Road, had been properly served for the purpose of section 30 of
the Compulsory Purchase Act 1965.
Anthony Carus (instructed
by Henry Cross & Son, of Prescot, Merseyside) appeared on behalf of the
appellant, Peter Fagan; John R McDermott (instructed by the borough solicitor,
Metropolitan Borough of Knowsley) represented the respondent borough.
Giving the
first judgment at the invitation of Oliver LJ, BALCOMBE LJ said: This is an
appeal by way of case stated from the decision of a member of the Lands
Tribunal (the member concerned being Mr V G Wellings QC) dated February 24
1983.
The facts are
that under the Huyton-with-Roby (Centre Comprehensive Development Area)
Compulsory Purchase Order 1967, the former Huyton-with-Roby Urban District
Council had powers of compulsory acquisition over an area which included a
dwelling-house, 11 Westmoreland Road, Knowsley, which was then in Lancashire
but is now in Merseyside, together with a garage adjoining, 7 Westmoreland
Road, Knowsley.
The owner of
this property was, at all material times, a Mr Peter Fagan, but Mr Peter Fagan
emigrated to Australia some time before 1972 and has lived there permanently
ever since.
His brother,
who lived not at the property in question but in the area, dealt with the
property in all material respects after Mr Peter Fagan had gone to Australia.
Nevertheless, the Lands Tribunal found — and there is no appeal against this
part of its findings — that there was no evidence which justified the view that
Mr Peter Fagan had made any representation, by words or conduct, to the urban
district council which justified that council’s belief that Mr Robert Fagan was
the owner. But that indeed was a belief which the urban district council
formed; it appears to be entirely attributable to a mistake on the part of the
council, who in due course served a notice to treat on Mr Robert Fagan.
Subsequently they also served on him a notice of entry.
The short
point raised by the case stated is whether: (a) the tribunal erred in law in
finding that the service of the notice to treat and of the notice of entry on
Mr Robert Fagan was, for the purpose of section 30 of the Compulsory Purchase
Act 1965, as good in law as serving them directly on Mr Peter Fagan; and (b)
whether there was any evidence to support the said finding.
I can deal
with the second question quite shortly. After the hearing had started, it came
to light that the owner was Mr Peter Fagan. The member adjourned the hearing
and caused a letter to be written to Mr Peter Fagan inquiring his wishes in the
matter. He replied to the registrar by letter dated August 19 1972, which
included the following phrase:
As I have stated
on previous occasions, prior to my departure from England, I give my brother,
Mr Robert Fagan, full authority to act on my behalf in this matter.
In my
judgment, that statement, together with certain other evidence which was before
the Lands Tribunal, but which it seems to me unnecessary to go into in any
detail, was evidence which entitled the member to find agency if that were
material.
The real
question on this appeal is a question of law, whether or not, even if Mr Peter
Fagan had appointed Mr Robert Fagan as his agent to deal with the property,
that was to authorise, for the purposes of the statute, Mr Robert Fagan to
receive notices, in particular notices to treat and notices of entry.
The relevant
section is section 30 of the Compulsory Purchase Act 1965, which is in these
terms:
Notices
required to be served by the acquiring authority on any person interested in or
entitled to sell any other land —
(a) shall be served personally, or left at his
last usual place of abode; or
(b) if he is absent from the United Kingdom or
cannot be found after diligent inquiry has been made, may be left with the
occupier of the land or, if there is no occupier, shall be affixed upon some
conspicuous part of the land.
It was
conceded by the district council, both before the Lands Tribunal and before
this court, that service on Mr Peter Fagan was not effected in accordance with
section 30. It was not served personally; the notice was not left at his last
usual place of abode; in fact he was absent from the United Kingdom, but no
diligent inquiry was made to find him; it was not left with the occupier of the
land and the notice was not affixed on some conspicuous part of the land.
The learned
member dealt with this in the following way. I quote now from his decision in
which he says:
There is,
however, I think, a solution to these problems: it is that Mr Robert Fagan was
at all material times the general agent of Mr Peter Fagan, with full authority
to receive the statutory notices: see (by way of example) the decision of Sir
Robert Megarry, Vice-Chancellor, in Townsends Carriers v Pfizer Ltd
(1977) 33 P&CR 361. I do not believe that section 30 of the Act of 1965 can
intend that the statutory notices cannot be served on the owner’s agent (for
example, his solicitor), if the owner is willing that that should be done.
It does not
appear that there was cited to the Lands Tribunal a case, which has been cited
to us in this court, Shepherd v Corporation of Norwich (1885) 30
Ch D 553. That is a decision turning on the relevant section of the Lands
Clauses Act 1845, which in all material respects is the same as section 30 of
the Compulsory Purchase Act 1965, and North J decided that statutory notices
under that Act could not be validly served on the owner’s agent, for example
his solicitor. There is a short passage at the very end of his judgment (p
573), which in my view cannot be dismissed, as Mr McDermott would have us do,
as a throw-away line, where he says:
. . . even if
I had come to the conclusion that there was such an authority
for an agent
to receive service of notices
it seems to
me that an authorised agent is not a person upon whom service under the Act of
a notice to treat can be effected so as to bind the principal of that agent.
In my
judgment, that is a correct statement of the law. In section 30 of the
Compulsory Purchase Act 1965 Parliament enacted a complete code for the service
of notices under that Part of that Act, and unless there is something in the
nature of estoppel (which, as I have already said, is expressly ruled out in
this case), in my judgment it is not possible to escape from the express
provisions of that section by providing for service on an agent, as was
suggested here.
Accordingly, I
would answer the first question raised by the case stated in para 4, namely,
that the Lands Tribunal did indeed err in law in finding that the service of
the notice to treat and the notice of entry upon Mr Robert Fagan was, for the
purpose of section 30 of the Compulsory Purchase Act 1965, as good in law as
serving them directly upon Mr Peter Fagan.
The decision
of Sir Robert Megarry in Townsends Carriers Ltd v Pfizer Ltd,
upon which the Lands Tribunal relied, does not in my judgment assist the
conclusion to which the learned member came, because it is not a decision based
upon a statutory code such as section 30 of the Compulsory Purchase Act 1965
provides, but was a decision on a very different point, namely, notices given
as between parties to a lease.
There is one
other point which arises on this appeal. After the matter had been adjourned to
see whether Mr Peter Fagan wanted the matter to continue, and the letter to
which I have already referred had been written, Mr Robert Fagan said to the
tribunal that he did not wish to take the point that the notice to treat was
invalid by reason of having been served upon him rather than upon his brother.
He did not make any similar concession in relation to the notice of entry,
which it was his case had never been served at all, although the Lands Tribunal
found against him on that as an issue of fact.
Nothing that I
have said so far is intended to have any relevance to the question, if and when
this matter goes back to the Lands Tribunal, as clearly it must, whether that
concession by Mr Robert Fagan has any binding effect. That will be a matter for
the Lands Tribunal to consider if the matter is raised before it.
Accordingly, I
would allow this appeal and remit the matter back to the Lands Tribunal.
OLIVER and
PARKER LJJ agreed and did not add anything.
The appeal
was allowed with costs and case remitted to the Lands Tribunal.
