Land – Disposal – Surplus – Crichel Down Rules – Properties compulsorily acquired and demolished for purposes of new railway construction – Appellant former leaseholder applying for judicial review of respondent’s decision to dispose of surplus land on open market and treat interested party as holder of qualifying interest – Whether appellant wrongly deprived of rights as dispossessed property owner – Appeal dismissed
The interested party was a subsidiary of a major housebuilding and development company with interests in the Woolwich area. The appellant held a 999-year lease of premises at 16 Gunnery Terrace, Cornwallis Road, Woolwich, London from which he ran his business. The freeholder was the London Development Agency (LDA). Under powers in the Crossrail Act 2008, the properties in Gunnery Terrace were compulsorily acquired and demolished for the purposes of construction of the new railway, Crossrail. The surface of the land was no longer required for railway purposes. The disposal of surplus land following actual or threatened compulsory purchase was governed by the non-statutory arrangements in the Crichel Down Rules (set out in Office of the Deputy Prime Minister Circular 06/2004), supplemented by the C10 Land Disposal Policy which was adopted specifically for the Crossrail project.
The respondent, a subsidiary of Transport for London (TfL), and a nominated undertaker under the 2008 Act, acted on behalf of TfL. It decided to offer a development site for sale at market value, which included the plots of land on which the appellant’s premises were previously situated, as well as other adjacent plots, to six holders of qualifying interests, as defined in para 5 of the C10 Policy. The appellant and others had a qualifying interest as former long leaseholders. The respondent considered that the interested party also had a qualifying interest, as it had purchased the freehold from LDA, prior to acquisition of the land for the construction of Crossrail. Both the appellant and the interested party expressed an interest, and so, applying para 5.3 of the C10 Policy, the respondent decided to dispose of the development site by sale on the open market.
The appellant applied for judicial review of the respondent’s decision on the ground that he had been deprived of his rights as a dispossessed property owner. The High Court concluded that the interested party had a qualifying interest and the respondent had lawfully applied the C10 Policy: [2018] EWHC 915 (Admin); [2018] PLSCS 82. The appellant appealed.
Held: The appeal was dismissed.
(1) Rule 7 of the Crichel Down Rules provided that the rules applied to all land if it was acquired by or under threat of compulsion. A threat of compulsion would be assumed in the case of a voluntary sale if power to acquire the land compulsorily existed at the time unless the land was publicly or privately offered for sale immediately before the negotiations for acquisition. The fact that rule 7 was expressed as an assumption did not alter its effect. However, a provision that created an assumed state of affairs had to be interpreted in the light of the purpose for which that assumed state of affairs had been created. It was important to pay attention to the underlying policy but normal principles of interpretation did not cease to apply. There was no doubt that the literal terms of rule 7 were satisfied. The acquiring authority had compulsory powers which, if exercised, would have entitled it to acquire compulsorily the land required to build the subterranean station and its associated works. In those circumstances, the assumption contained in rule 7 came into play, unless the land was offered for sale before the negotiations for acquisition. The offer referred to was an offer made by the landowner who had been directly or indirectly expropriated. The policy was not concerned to trawl back through the history of the land. LDA had offered the land for sale before the negotiations for acquisition by TfL. But the interested party had not. In those circumstances the exception to the assumption did not apply to the interested party.
(2) Applying the policy and offering the land for sale on the open market was not unfair to the appellant. The policy was clear, and was intended to be all-embracing. It included the appellant, together with the interested party (and others). The consistent application of a published policy was itself an aspect of fairness. That was part of the general administrative desirability of applying known rules if a policy was to be workable, predictable, consistent and fair. What was fair from the appellant’s perspective might be entirely unfair from that of the interested party. For TfL to disapply the assumption in rule 7 in vague and unspecified circumstances would not be conducive to good administration. The circumstances in which policy C10 applied were not the same as in the classic case of Crichel Down Rules. Those rules did not apply where the land had been materially altered; and could not be offered back to its former owner in much the same state. What was potentially on offer in the present case was either the prospect of participating with TfL in a joint venture development, or the grant of a 250-year lease. There was no prospect of the appellant regaining the property interest he had before the acquisition. That in itself had a substantial impact on fairness: R (on the application of Pritchett) v Crossrail Ltd [2017] EWCA Civ 317; [2017] PLSCS 101 followed.
(3) On the facts of the present case, it could not be said that for the interested party disposal of the land was the end which it wished to achieve independently of the existence of statutory powers. The terms of the transfer under which it sold the land to TfL were closely tied to the existence of compulsory powers. It was implicit in rule 7 that the phrase “land was publicly or privately offered for sale immediately before the negotiations for acquisition” meant that the land was offered for sale to someone other than the acquiring authority. The expression “the negotiations” could only mean negotiations with the acquiring authority which would typically begin with an offer. It followed that an offer for sale before those negotiations began had to be an offer to someone else. The natural meaning of the rule, and the policy underlying it, both militated against the appellant’s interpretation: JDP Investments Ltd v Strathclyde Regional Council 1997 SLT 408 followed.
Timothy Straker QC and Karishma Vora (instructed by Sharpe Pritchard LLP) appeared for the appellant; Timothy Mould QC (instructed by Winckworth Sherwood LLP) appeared for the respondent; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Charlesworth) v Crossrail Ltd
