Sale of land — Development — Statutory body acquiring site to override claimant’s right of way — Transferor reacquiring site following exercise of statutory rights — Claimant challenging right to block right of way — Claimant applying to amend claim to assert object of statutory powers not achieved — Whether claimant entitled to amendments — Application dismissed
The claimant 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 defendant, which had originally owned the site of the service road until this was transferred to the second defendant and registered 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 claimant’s right of way via a new road over the Phoenix.
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 claimant’s right of way, pursuant to LAW’s statutory powers in section 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 claimant challenged the defendants’ right to block up the existing right of way. The defendants acknowledged that the claimant’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 claimant discovered the precise nature of the March 1995 transactions and applied to amend its particulars of claim to assert that the intentions of LAW 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, 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.
Held: The application was dismissed.
The proposed amendments could not succeed. No uncompensatable loss or damage to the claimant had arisen and it was using the litigation to obtain a payment from the defendants that would be greater than the minimum amount of statutory compensation. The measure of damages under the 1980 Act was a diminution in value, as under section 237 of the Town and Country Planning Act 1990: Midtown Ltd v City of London Real Property Co Ltd [2005] EWHC 33 (Ch); [2005] 1 EGLR 65; [2005] 14 EG 130 considered.
Under the Land Registration Act 1925, which applied to the transfer, LAW, like any other transferee with a right to register, was enabled to deal with the title before being registered: see section 37 of the 1925 Act. The beneficial interest in the Phoenix site had been transferred to LAW and there was no reason why LAW could not “wash” the title through its brief ownership in order to exercise its statutory powers provided that it gave proper consideration to the exercise; it had not been suggested that it had not done so.
It was plain from the resolutions and the agreement that LAW had acquired the site under section 104 and that the acquisition had been authorised. The fact that Tesco had transferred to it was irrelevant since there was a chain of title. The purpose of the section was to enable a local authority to facilitate redevelopment in its area by exercising their powers, which would override any third-party right, subject to compensation. Moreover, the transactions could not be challenged as being ineffective under the statutory powers.
In any event, the application should be refused because of the delay that would prejudice the defendants. It would be wrong to allow an application to proceed to examine events that had taken place more than 10 years previously. Had the claimant wished to challenge the validity of the process carried out in 1995, it had had sufficient material to do so at that time.
George Laurence QC and Ross Crail (instructed by Kingsley Napley) appeared for the claimant; Anthony Porten QC and Ranjit Bhose (instructed by Capital Law, of Cardiff) appeared for the defendants.
Eileen O’Grady, barrister
