Sale of land — Development — Statutory body acquiring site to override appellant’s right of way — Transferor reacquiring site following exercise of statutory rights — Appellant challenging right to block right of way — Appellant applying to amend claim to assert object of statutory powers not achieved — Whether appellant entitled to amendments — Appeal dismissed
The appellant company owned land that had the benefit of a right of way over a service road leading to an adjoining site (the Phoenix site). Part of the Phoenix site was owned by the first respondent, which had owned the site of the service road until its transfer to the second respondent and its registration with a separate title in August 2005. The Phoenix site had been acquired by TBI in 1993 for a development that required the diversion of the appellant’s right of way via a new road over the Phoenix site.
In March 1995, TBI sold the Phoenix site to Tesco and they entered into an agreement with the Land Authority for Wales (LAW) to override the appellant’s right of way, pursuant to LAW’s statutory powers in sections 103 and 104 of, and Schedule 20 to, the Local Government, Planning and Land Act 1980. In order for the development to take place, the Phoenix site was transferred to LAW and reacquired by Tesco once LAW had exercised its powers.
In 2002, applications were made to develop the site and, in 2005, the appellant challenged the respondents’ right to block up the existing right of way. The respondents acknowledged that the appellant’s land had the benefit of a right of way over the service road but contended that that right had been overridden by the exercise of statutory powers by LAW.
At this point, the appellant discovered the precise nature of the 1995 transactions and applied to amend its particulars of claim to assert that LAW’s intention to use its overriding powers had not been achieved because, inter alia, LAW had not been registered at the Land Registry as the legal owner and, under the agreement, was obliged to retransfer to Tesco. Moreover, it had not parted with moneys and, in the circumstances, had not acquired the site within section 104(1)(a) of the 1980 Act. Furthermore, the actual acquisition had not been authorised, and the transactions were not genuine or effective pursuant to LAW’s statutory powers.
The appellant appealed from an order of the court refusing it permission to amend the basis of its claim on the ground that the amended arguments had no prospect of success: see [2006] PLSCS 183.
Held: The appeal was dismissed.
In terms of sections 103 and 104 of the 1980 Act, it was sufficient for LAW either to acquire the legal title (in a conveyance of unregistered land or on registration as proprietor of registered land) or to become entitled to be registered as proprietor of registered land, as it did on the execution of the transfer to it by Tesco. The underlying position as regards the beneficial interest in the land was irrelevant to whether or not LAW acquired the land.
Although pursuant to section 103(3)(b) LAW was under an obligation not to allow land in its ownership to lie fallow, and could use it beneficially, that obligation did not limit its freedom of acquisition and disposition conferred by sections 103 and 104 by dictating the circumstances in which it might acquire, hold or dispose of land.
As a matter of construction, the party from whom LAW had purportedly acquired the land could be regarded as an “other person” within the meaning of section 103(1). It was plain that the words “other persons” for purposes of section 103(1) meant no more or less than “persons other than itself”.
The evidence clearly indicated that the board of LAW had properly authorised internally entry into the actual transaction both as regards its structure and the parties to it, and any argument to the contrary was bound to fail.
Finally, the appellant’s argument that the transaction was vitiated by the provision for LAW to take a fee was rejected since it was a point that should have been taken by way of judicial review. It would be an abuse of process to take it more than 10 years after the event in proceedings against other parties: Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 and Rhondda Cynon Taff County Borough Council v Watkins [2003] EWCA Civ 129; [2003] 1 EGLR 117 distinguished.
George Laurence QC and Ross Crail (instructed by Zermansky & Partners, of Leeds) appeared for the appellant; Anthony Porten QC and Ranjit Bhose (instructed by Capital Law, of Cardiff) appeared for the respondents.
Eileen O’Grady, barrister
