Landlord and tenant – Procedure – Compensation – Respondent serving statutory notices on claimant tenant relating to compulsory acquisition of building for HS2 scheme – Claimant serving counter-notices requiring respondent to acquire all buildings – Respondent making reference to Upper Tribunal to determine preliminary issue – Whether failure to serve counter-notices within time limit fatal to claim – Reference dismissed
The Saltley Business Park at Washwood Heath in Birmingham lay directly in the path of the proposed route of the HS2 railway. Until 2018, the claimant occupied four buildings on the Park. The site of one of those buildings (Unit R) was required in connection with the new railway. The respondent secretary of state was the acquiring authority for the HS2 scheme. HS2 Ltd was the nominated undertaker for the scheme authorised to serve statutory notices relating to the compulsory acquisition of land on behalf of the respondent.
On 8 December 2017, notice to treat was served on the claimant under section 5 of the Compulsory Purchase Act 1965 (the 1965 Act) informing the claimant of HS2’s intention to acquire Unit R, but not its other buildings. At the same time, notice was given under section 6 of the Compulsory Purchase (Vesting Declarations) Act 1981 (the 1981 Act) of the making of a general vesting declaration (GVD) including Unit R. The notices were received at the claimant’s registered office on 12 December 2017.
On 10 January 2018, the claimant responded to the notices by serving counter-notices requiring the respondent to acquire its remaining premises as well. The counter-notices arrived the following day, three days later than the 28-day period allowed by para 5 of Schedule 2A to the 1965 Act for giving a counter-notice to the notice to treat. The counter-notice to the GVD arrived on the same day.
Both counter-notices were referred to the Upper Tribunal to determine as preliminary issues whether the failure to serve counter-notices by 9 January 2018 was fatal to the claim.
Held: The reference was dismissed.
(1) Where an acquiring authority sought to acquire only part of a person’s land, the landowner was entitled in certain circumstances to insist that it acquire the whole of the land and pay compensation on that basis. Where the exercise of the compulsory purchase power was pursuant to a notice to treat, Schedule 2A of the Compulsory Purchase Act 1965 applied. Where the authority proceeded by means of a general vesting declaration, the relevant provisions were in Schedule A1 to the Compulsory Purchase (Vesting Declarations) Act 1981.
(2) Where the notice to treat procedure had been adopted, Schedule 2A to the 1965 Act provided that a counter-notice had to be served within 28 days beginning with the day on which the notice to treat was served. Where the GVD procedure under the 1981 Act was used, a counter-notice had to be served before the end of the period of 28 days beginning with the day the owner first had knowledge of the general vesting declaration. In the present case, it was agreed that service was effected on 12 December 2017 by actual delivery of the notices. The period of 28 days from the date of service accordingly expired on 9 January 2018. The counter-notice responding to the notice to treat was sent on 10 January 2018 and received on 11 January 2018. It was accordingly out of time.
(3) Whether the counter-notice responding to the notice of the GVD was also out of time depended on when the claimant “first had knowledge of the general vesting declaration” (para 3 of part 1 of Schedule A1 to the 1981 Act). The tribunal rejected the respondent’s submission that a person could not be served with a document, in fact and in law, and still not have knowledge of it. There was a clear distinction between knowledge and the concept of service. Knowledge was irrelevant to service. “Serve” was an ordinary English word connoting the delivery of a document to a particular person. It did not imply that the document had to be understood by the recipient. It did not have to be read by the recipient. In the absence of any provision for deemed or constructive knowledge, on the evidence, the claimant first had knowledge of the GVD on 20 December 2017, which was the first time that the claimant became aware of the GVD: Tadema Holdings Ltd v Ferguson [1999] PLSCS 263; (2000) 32 HLR 866 followed.
(4) Since the counter-notice in response to the notice to treat under the 1965 Act was out of time but the counter-notice to the notice of making of the GVD was in time under the 1981 Act, it was necessary to determine which was the operative procedure. The claimant’s tenancy of Unit R was a long tenancy which was about to expire so that the notice of making of the general vesting declaration under the 1981 Act had no application. The operative statutory regime was the 1965 Act, and the time limit for service of a counter-notice to HS2’s notice to treat was 28 days beginning with the day on which the notice to treat was served: Bolton Engineering Co v TJ Graham & Sons [1957] 1 QB 159.
(5) The question whether non-compliance with the time limit in para 5 of Schedule 2A to the 1965 Act should lead to a failure of the whole proceedings was to be approached by considering the role of the regulation in the overall regulatory scheme, the purpose of the time provision and forming a judgment whether the intention of the rules was that a breach of the time limit would deprive the decision-maker of jurisdiction. The fact that the time limit was a relatively generous period of 28 days, and that the procedural step was a simple one, as well as the absence of any power to dispense with the time limit, all pointed clearly to an intention that the time limit be inflexible: Charles v Judicial and Legal Services Commission [2002] UKPC 34 followed.
(6) The consequences of a failure to give a counter-notice were mitigated by the right to compensation under rule 2 in section 5 of the Land Compensation Act 1961 and under rule 6 and section 7 of the 1965 Act. They were not sufficiently serious to require that para 5 of Schedule 2A be treated as subject to an implicit power on the part of the tribunal to dispense with the time limit. The counter-notice was out of time and the tribunal had no power to extend time.
Charles Banner (instructed by Bryan Cave Leighton Paisner) appeared for the claimant; Richard Honey (instructed by Eversheds, of Sutherland) appeared for the respondent.
Eileen O’Grady, barrister
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