Compulsory purchase — Disposal of land compulsorily acquired but subsequently surplus to requirements — Whether conflict between ‘Crichel Down’ guidance and direction in section 37(3) of New Towns Act 1981 as amended — Appeal by former landowners from decision of Kennedy J refusing application for judicial review against New Towns Commission — Appellants sought declaration that the commission erred in law in holding that they were obliged to follow the direction rather than the guidelines; and that, in the event of planning permission for residential development being granted, the commission were obliged to offer the land for sale in the open market rather than first offering to sell it back to the appellants
question had been compulsorily acquired in 1974 for a new town but had not been
used for that purpose and had continued to be farmed by one of the appellants
as a licensee until 1985 — Negotiations had been taking place with a view to
restoring the land to the appellants at an agreed price in accordance with the
non-statutory guidelines when the commission decided to apply for outline
planning permission for residential development — Such permission was granted
covering the greater part of the land — The commission then decided, after
taking advice, that it was their duty to offer the land for sale on the open
market and not give the appellants first refusal under the guidelines, despite
the fact that, as the appellants appreciated, the price to be agreed with the
district valuer under the guidelines would be on the basis of full current open
market value, taking account of planning permission and prospects for
development — The commission’s conception of their duty was based on section
37(3) of the New Towns Act 1981 as substituted by the New Towns and Urban
Development Corporations Act 1985 — This prohibited the commission from
disposing of property for a consideration less than the best reasonably
obtainable except under the general or special authority of the Secretary of
State — The commission’s view was that in the particular circumstances of the
case, with the lack of comparable transactions in the area and the rapid growth
of land values, it was impossible to be confident that the best consideration
would be achieved unless the land was sold on the open market — The same
difficulty would not necessarily arise in a reasonably stable market, such as
that of agricultural land without planning permission
rejected a submission on behalf of the appellants that the guidelines could be
taken as a general authority from the Secretary of State for the purpose of
section 37(3) as amended — The court also rejected an argument that the words
‘the best reasonably obtainable’ consideration were sufficiently wide to enable
the commission to do anything in the way of disposal of surplus land which was
desirable in the interests of fair administration even though the price thereby
realised fell short of the highest price in money that could prudently be obtained
— In the court’s view section 37(3) contemplated that if it were desired to
sell at less than full current open market value the residual authority of the
Secretary of State should be sought — Kennedy J had reached the right
conclusion — Appeal dismissed
The following
case is referred to in this report.
Buttle v Saunders [1950] 2 All ER 193; (1950) 66 TLR (Pt 1) 1026
This was an
appeal by John Robert Tomkins and John George Leach, former freehold owners of
adjoining areas of agricultural land at Hardingstone in Northamptonshire,
amounting to about 55 acres, from the decision of Kennedy J dismissing an
application for judicial review seeking declarations that the Commission for
the New Towns had erred in law in regard to the return of their former land.
Derek Wood QC
and D J Holgate (instructed by Nabarro Nathanson) appeared on behalf of the
appellants; J M Sullivan QC and R J Furber (instructed by D J Freeman & Co)
represented the respondents.
Giving
judgment, DILLON LJ said: Two Northamptonshire farmers, Mr Tomkins and Mr
Leach, appeal against the refusal of Kennedy J by his order of February 16 1988
to grant them relief by way of judicial review against the Commission for the
New Towns (‘the commission’). The relief which the appellants particularly seek
is a declaration to the effect that, in purporting to apply certain guidelines
of 1983 to which I shall have to refer and the New Towns Act 1981 as amended,
the commission has erred in law by deciding that the commission is obliged to
pursue its statutory obligations under the 1981 Act rather than to follow the
guidelines, and further by deciding that, in the event of planning permission
for residential development of the land in question being granted, the
commission would be obliged to offer the land for sale on the open market
without first offering to sell it back to the appellants in accordance with the
1983 guidelines.
The case is
thus put on the basis that the commission has erred in law by misconstruing its
powers; it is not suggested that the commission has acted with Wednesbury
unreasonableness.
The background
to the case is that, since the Crichel Down affair of the 1950s, it has been
recognised that, if land is acquired from a landowner by compulsory purchase by
the Crown or a public authority, and if, before it has been materially changed
in character, the land becomes surplus to requirements and falls to be disposed
of, then fair administration requires that the former owner should be accorded
a right of first refusal to buy back the land, if he wishes, albeit at current
market value, before it is sold to any third party.
The appellants
were in 1974 the respective freehold owners of two adjoining areas of
agricultural land at Hardingstone in Northamptonshire amounting to about 55
acres in all. This land was in November 1974 compulsorily acquired from the
appellants by the Northampton Development Corporation, a statutory development
corporation established under the New Towns Act 1965. It was so acquired with a
view to the expansion of a new town at Northampton but has not in fact been
used for that purpose. It has continued to be used as agricultural land, being
farmed by one of the appellants as licensee of the development corporation
until April 1985.
On April 2
1985 the land was vested in the commission by the provisions of the Northampton
Development Corporation (Transfer of Property and Dissolution) Order 1985 (SI
1985 no 321) and the same order provided that the Northampton Development
Corporation should be dissolved on June 30 1985. At the time of that vesting,
the function of the commission under section 36 of the New Towns Act 1981 in
its original form was to take over, hold, manage and turn to account the
property previously vested in a development corporation for a new town and
transferred to the commission. But under section 37 of the 1981 Act in its
original form the commission had (with an immaterial exception) no power to
transfer the freehold in any land without the authority given generally or
specially of the Secretary of State. The development corporations had similarly
had no power to transfer the freehold of any land vested in them without the
authority of the Secretary of State.
There was
provision in section 2 of the 1981 Act for land to be excluded from the area of
a new town, and such land was to be disposed of by the relevant development
corporation under Schedule 2. The Secretary of State had power to give
directions in relation to any such disposal, and transfer of the freehold of
land required his consent, given generally or specially. But the Secretary of
State preferred to regulate disposals of new town surplus lands by
administrative guidelines rather than by directions.
Accordingly,
on September 5 1983 the Department of the Environment issued the guidelines,
with which this case is concerned, to the new town development corporations in
England and to the commission, with copies to a considerable number of other
bodies. These guidelines have no statutory force, but there would be an
expectation that they would, in general, be applied in appropriate
circumstances in the exercise of fair administration as appreciated since
Crichel Down.
Material
provisions of the guidelines are as follows:
1 When orders are made de-designating surplus
land in new towns (section 2 of the New Towns Act 1981) development
corporations are under a duty, by virtue of Schedule 2 of the Act, to dispose
of any such land which they do not require for purposes connected with the
development of the new town. The Secretary of State may give directions regulating
the manner in which this duty is to be performed (Schedule 2, para 1(4) (c))
but the general method of regulation will be by administrative guidelines.
These guidelines apply also to all other land not required for purposes
connected with the development of the new town, which is being sold under other
provisions of the 1981 Act. (This does not, of course, include land on which
the Corporation will be authorising development in accordance with proposals
approved by the Secretary of State under section 7(1) of the Act. Such land
should not be regarded as surplus.)
2 Where permission for development within the
next 5 years of any land surplus to the Corporation’s requirements seems likely
to be granted, the Corporation should consider whether it would be advantageous
to seek outline planning permission for it, under the Town and Country Planning
legislation, before beginning the procedures for disposal set out below. The
District Valuer will first advise on the type of permission which should be
applied for, and may also offer general comments on the options available to
seek the best price possible.
3 Following the rules for the disposal of
surplus government land, former owners should generally be given a first
opportunity to repurchase the land previously in their ownership provided it
has not been materially changed in character since acquisition (see para 8).
The offer back should normally be made to the former freeholder . . .
There is
provision for including successors of the former owner, otherwise than by
purchase, and provision in some detail as to the steps to be taken to trace
former owners. There are provisions, not relevant to the present case, as to agricultural
tenants and agricultural licensees. Finally there is a section headed ‘Terms of
Sale’ which contains paras 12 and 13 as follows:
12 Land should always be sold freehold. Land
returned to former owners or sold to sitting tenants or to agricultural
licensees should be sold at a price agreed with the District Valuer on the
basis of full current open market value. The price will take into account any
prospects for development.
13 Open market sales should normally be by
public auction or tender and should be planned with due regard for what the
local market will bear. The District Valuer will advise on the methods and
timing of disposal, including any reserve price.
Sections 36
and 37 of the 1981 Act were, however, amended, and the powers of the commission
were extended, by the New Towns and Urban Development Corporations Act 1985
(‘the 1985 Act’), which received the royal assent on March 11 1985 and came
into force two months later. Section 36 of the 1981 Act, as amended by the 1985
Act, requires the commission to dispose of property transferred to it and any
other property held by it, as soon as it considers it expedient to do so. Most
important, for present purposes, however, a new section 37(3) substituted by
the 1985 Act provides that:
(3) The Commission shall not by virtue of section
36 above —
. . .
(e) dispose of any property by way of gift or for
a consideration which is less than the best reasonably obtainable, except under
the general or special authority of the Secretary of State.
As to the
further facts of the present case, against the legal framework indicated above,
the Northampton Development Corporation wrote to the appellants in August 1984
stating that the land in question was surplus to requirements and was to be
disposed of and that in accordance with the guidelines issued by the Department
of the Environment the original owners were to be given the first opportunity
to buy the land back. The appellants declared their interest in repurchasing
and negotiations with the district valuer on a repurchase price followed. By
February 1986 agreement had almost been reached on resale at a price of
£100,000, but a question was raised by the appellants’ solicitors as to access
in the event of redevelopment and as to the possibility that the commission, by
then the owner, would be retaining ransom strips. The commission then, on
looking into the planning aspects further, decided that the prospect of
planning permission for development of the land being granted was considerably
greater than had originally been supposed. That is, of course, a relevant
factor under paras 2 and 12 of the guidelines. The negotiations, therefore,
went into abeyance and in the upshot the commission applied for outline
planning permission for the residential development of the 55 acres of land,
and that permission was granted at the end of 1987 in respect of 36 acres on a
revised planning application submitted by the commission in October 1987.
The appellants
accept that, if they acquire the land under the guidelines, they must pay a
price which reflects the current planning position: see para 12 of the
guidelines. The proposed price of £100,000 which was almost agreed is now only
of academic interest. What the appellants object to, however, is that the
commission, after taking the advice of counsel (apparently Mr Michael Barnes
QC), have concluded, and told the appellants, that the commission will have to
offer the land for sale in the open market and will not be able to give the
appellants first refusal under the guidelines; the appellants will have to take
their chance with others in a competitive market. That conclusion was conveyed
to the appellants’ solicitors by a letter of September 7 1987 as follows:
Thank you for
your letters of the 12th and 28th August. As you will be aware the Commission
is pursuing an Appeal against the refusal of Planning Permission by the Local
Planning Authority.
The Commission
must at this stage reserve its position as to the method to be employed in
marketing the land until the outcome of that Planning Appeal is known for the
contents of that decision could have a direct bearing on the method of sale
employed by the Commission.
The Commission
must, of course, have full regard to its statutory obligation to obtain the
best possible price on the disposal of an asset and also to the Government
Guidelines relating to the sale of assets and the question of price. The basis
of valuation would have to be determined in accordance with those requirements.
Consequently
until the outcome of the Appeal is known the Commission cannot give any
undertakings to treat with any individual parties but if the Appeal is
successful and the land has a Planning Consent for residential development it
does appear that the Commission would have to offer the land on the open
market. Your Clients would, however, at that stage have the opportunity to
submit an offer along with any other interested parties.
That letter is
somewhat cryptic in that it does not say why it appears that the commission
would have to offer the land on the open market if planning consent for
residential development is granted.
It has been
suggested as a possible interpretation of the situation that the commission
must have been advised by counsel that its duty under the substituted section
37(3) of the 1981 Act was absolute and that Parliament by enacting that section
had thrown the guidelines and all Crichel Down considerations out of the
window. I do not, however, for my part, think that Parliament ever intended to
do that and, on the evidence filed in this case, I do not think the commission
takes, or has ever taken, such an extreme view. In my judgment, the change of
attitude of the commission is related to the particular circumstances of this
case — although it could well apply to other cases also — and is the result of
the advice the commission has received from surveyors, Mr A B Cudmore and,
later, Mr R B Caws, as to the appropriate way of marketing, and difficulties of
valuing, development land when the market in such land is as buoyant as it was
at the time of the advice.
Mr Cudmore, a
chartered surveyor and deputy director of estates and technical services to the
commission, refers in para 4 of his affidavit to advertising land to be sold as
widely as possible and giving as much information as possible and refers also
to offering the land on a formal tender basis requiring the successful
applicants to enter into a contract as drawn in the particulars of sale. He
then continues:
In my opinion,
the Respondent must offer parcels of the land which is the subject matter of
this application (‘the subject land’) for sale in the market in this way if the
Respondent is to obtain a price for the subject land which is in accordance
with its statutory duty. I believe that the only prudent way of establishing
the true market value of the subject land is through a competitive marketing
exercise of this sort. It will of course be possible for the Applicants to bid
for the land in this way.
7 I have seen the affidavit of Mr Mendelblat
sworn herein on behalf of the Applicants, and note his comments in para 18. The
Applicants apparently contend that ‘there is no conflict’ between the
Respondent’s statutory duty as to the price at which its land is to be sold,
and the requirement under the 1983 guidelines to offer the land first to the
Applicants at the open market value, based upon the advice of the District
Valuer. I believe that this contention is erroneous. There are cases where the
market value of land can readily and confidently be reached by reference to an analysis
of an adequate number of comparable transactions (for example, the value of a
house on a residential estate). However, I do not think that this can be done
in this case. Northampton is an expanding town, and the only evidence available
to the District Valuer will be evidence of past transactions which will not
reflect the current state of the market or the aggressive stance which ‘volume
house builders’ bidding for the land are likely to adopt. I have discussed this
matter with the District Valuer and he agrees that this is not a case where the
ordinary
valuation in this case, and the land is sold at valuation price, it may well
transpire that the Respondent has not obtained the best price reasonably
obtainable for the land.
8 My experience in other cases shows that it is
not possible for the Respondent’s surveyors, or their consultant surveyors, to
value confidently and accurately land of this sort which acquires potential for
residential development. This is due to the rapid growth in land values and the
competitive attitude of likely purchasers such as ‘volume house builders’.
There is now produced to me and annexed hereto a schedule marked ‘AC1’, giving
details of recent sales by tender of land owned by the Respondent in Harlow,
Basildon, Stevenage and Redditch, which illustrates (i) the rapid rise in land
values both in the South-East and the Midlands and (ii) the number of bidders
and the wide divergence between the highest and lowest bids made in each case.
I believe that this schedule supports the view I have formed about this
particular case.
Mr Caws, a
chartered surveyor of very great experience, confirms Mr Cudmore’s evidence and
adds:
In
particular, in my opinion derived from my experience of the market for land
with the benefit of planning permission for residential development, it will be
impossible to ascertain with any confidence the best price reasonably
obtainable for the land which is the subject of these proceedings without
offering it in the market for sale on a tender basis, as the Respondent
proposes to do.
The exhibit
AC1 produced by Mr Cudmore and referred to in para 8 of his affidavit is of
interest for several reasons. First, it shows how very large the difference
between the highest bid and the lowest bid has been on all but one of the 15
residential land sales by tender which are analysed in the exhibit. Second, it
shows how drastically the price per acre realised for development land has
risen in all areas from May 1986 to the middle or end of 1987. Third, it shows
that prices per acre, although greatly increasing, have been lower at Redditch
in the Midlands than at Harlow, Stevenage or Basildon in the South East, and it
is for consideration where in the scale Northampton — described by Mr Cudmore
as ‘an expanding town’ — would lie. Finally, they show very high prices
obtained for very much smaller areas of land than the land in question in the
present case, where there is outline permission for the residential development
of 36 out of 55 acres.
In these
circumstances, it is obvious that the price to be obtained for the 55 acres
with the benefit of the planning permission will be very high indeed. Any
attempt to estimate that price will be unreliable and virtually just a guess.
The reasonable and sensible course, therefore, for any chartered surveyor
advising a vendor, whether public or private, on the disposal of such land
would be to advise that the land should be offered for sale by tender, after
maximum advertisement and publicity, on the basis that any successful tenderer
would be bound to enter into a contract to purchase on terms laid down in the
conditions of tender. That is what the commission proposes on advice to do, and
as the 1983 guidelines are on their face not intended to be inevitably of
universal application, I see no reason why the commission should not go ahead
as it proposes and as it has been advised; I rely in particular on the wording
of para 3 of the guidelines that former owners should ‘generally’ be given a
first opportunity to repurchase and that the offer back should ‘normally’ be
made to the former freeholder.
Mr Wood QC has
argued two main points in support of the appeal.
He submits, as
one of his points, that the 1983 guidelines are to be taken as a general
authority of the Secretary of State under section 37(3) of the 1981 Act as
amended by the 1985 Act, which absolves the commission, if it is selling to the
former owner under the guidelines, from any obligation to obtain the best
consideration reasonably obtainable under section 37(3). This I am wholly
unable to accept, however, since para 12 of the guidelines requires the price,
on a sale to the former owner under the guidelines, to be on the basis of full
current open market value. Thus the Secretary of State cannot have intended by
the guidelines to authorise a sale at less than full market value which is
substantially the same as the best price reasonably obtainable. The dilemma
that arises on the surveyors’ evidence in the present case is thus not avoided
or resolved, namely that without offering the land for sale by tender on the
open market it is not, in the conditions prevailing over the period to which
the evidence is directed, possible to decide what the full current open market
value of the land is.
On this point
Mr Sullivan QC, for the commission, has a further argument that, when the guidelines
were issued in 1983, the revised section 37(3) did not exist and the commission
had no relevant power to the exercise of which the Secretary of State could
have been giving a general authority by the guidelines. I find it unnecessary
to form any view on this argument.
Mr Wood’s main
submission, however, is that the words ‘the best reasonably obtainable’ in
section 37(3) as amended have a sufficient flexibility in themselves to enable
the commission to do anything in the way of disposal of surplus land which is
desirable in the interests of fair administration, even though the price
thereby realised may fall short of the uttermost farthing.
It is to be
noted that the wording used in section 37(3) as amended is very similar to the
wording used in section 39(1) of the Settled Land Act 1925, which applies to
sales by trustees for sale as well as to sales under the Settled Land Act
itself, namely: ‘(1) . . . every sale shall be made for the best consideration
in money that can reasonably be obtained’. This repeats the wording which had
been used in section 4(1) of the Settled Land Act 1882.
Similarly, in
relation to sales by local authorities, section 123(2) of the Local Government
Act 1972 provides that ‘except with the consent of the Secretary of State, a
council shall not dispose of land under this section . . . for a consideration
less than the best that can reasonably be obtained’.
In all these
contexts the phrase ‘the best price that can reasonably be obtained’ refers, in
my judgment, to the highest price in money that can be got, subject to such
considerations of prudence as are discussed by Wynn-Parry J in Buttle v Saunders
[1950] 2 All ER 193, such as that a bird in the hand may on occasion be worth
more than two in the bush. I find it particularly difficult on the facts of the
present case and in the context of section 37(3) to imply from the word
‘reasonably’ that the commission can on moral or ethical grounds or grounds of
supposed fairness take a price for the land which it and its advisers have no
reason to believe is the best that could be obtained, or as good as it could
get, since (a), as already mentioned, the guidelines which are supposed to
warrant the commission in selling to the appellants rather than offering the
land on the open market itself envisage in para 12 a sale to the previous owner
at a price on the basis of full current open market value taking account of any
prospects for development and (b) if the commission believes that fair
administration requires that this land should be sold to the appellants at
whatever price can be agreed with them without putting the land on the open
market, the commission can always seek the authority of the Secretary of State
to do that. Section 37(3) itself envisages that the commission may with the
authority of the Secretary of State sell land in an appropriate case at less
than the best price reasonably obtainable; that residual power of the Secretary
of State emphasises, to my mind, that the power to sell given to the commission
by section 37(3) as enacted in the 1985 Act was intended only to authorise a
sale at the best price, the full current open market value. The proceeds of any
sale of surplus land will on completion be public funds; if there is to be a
sale at a price which cannot be justified as the full current open market value
or best price, it is only right that the Secretary of State who is answerable
for public funds should have to consent to that sale.
Accordingly,
in the circumstances of this case I agree with Kennedy J and would dismiss this
appeal.
I should add
that this conclusion depends entirely on the evidence as to the market at the
particular time in this particular type of property — land with planning
permission for residential development. Of course the same considerations may
apply to the disposal by the commission or other authorities of other
development land. But the conclusion does not mean that Crichel Down guidelines
are a dead-letter and necessarily always incompatible with a duty to obtain the
best price reasonably obtainable for any property. The commission has not
suggested that there is any inherent incompatibility between the guidelines and
the commission’s duty under section 37(3). With land for which there is a
reasonably stable market, such as agricultural land without planning
permission, there should be no difficulty at all in putting a value on the
land, and selling the land back to the former owners of it as agricultural land
at its full current open market value, which will be the best price reasonably obtainable.
There was really no problem in the present case until it was realised that the
land had prospects for development. Cases in which — as here — the former
owners of agricultural land, who farmed it as agricultural land before the
compulsory purchase, are willing to buy it back at its development value
because planning permission for residential development has been granted must
be very rare.
Agreeing,
BINGHAM LJ said: The policy embodied in section 37(3) of the 1981 Act is plain:
it is to ensure, so far as reasonably possible, that public assets are not sold
at an undervalue save on the authority of the Secretary of State. The public
interest underlying the policy is obvious.
This policy
objective is also reflected in the August 1983 guidelines, which commend the
practice of selling surplus land with planning permission, where this is
obtainable, so as to make sure that the sale price fully reflects the
development potential of the land. But the guidelines reflect another policy
objective also: that the former owners of land which had earlier been
compulsorily purchased for purposes of new town development and is not now
needed for that purpose should ordinarily be given the first opportunity to buy
back what had been their land at its full current open market value, taking
account of development prospects.
The public
interest underlying this policy is obvious also. When land is compulsorily
purchased the coercive power of the state is used to deprive a citizen of his
property against his will. He is obliged to take its assessed value whether he
wants to or not. This exercise is justified by the public intention to develop
the land in the wider interests of the community of which the citizen is part.
If, however, that intention is not for any reason fulfilled, and the land
becomes available for disposal, common fairness demands that the former owner
should have a preferential claim to buy back the land which he had been
compelled to sell, provided he is able and willing to pay the full market price
at the time of repurchase, that price reflecting the development potential of
the land. The name Crichel Down by which this policy is known adequately
conveys the public sense of what fairness ordinarily demands in this situation.
It goes
without saying that, if there is any conflict between the statutory requirement
that land should be sold for the best consideration reasonably obtainable and
the recommendation in the guidelines that surplus land should generally be
offered first to the former owner, the statutory requirement should prevail.
But the guidelines were not withdrawn when section 37(3) was amended by the
1985 Act, doubtless because no conflict was seen. Since para 12 of the
guidelines envisages sale to the former owner at a price agreed with the district
valuer on the basis of full current open market value, there is, in my opinion,
no conflict in any case where the full current open market value of land can
with reasonable confidence be assessed.
Assessing the
full current open market value of agricultural land with planning permission
for residential development is always, I have no doubt, a difficult task. But
it is a task which a skilled valuer is professionally qualified and trained to
undertake. He would, I assume, make a detailed study of comparable transactions
in the relevant area, assess future trends of supply and demand and make the
same sort of calculations as a developer would make when deciding what he could
afford to pay for the land. If he needed advice from others he would no doubt obtain
it. In very many cases it would, I think, be possible for a skilled valuer who
had considered the problem carefully and in detail to make an informed and
reasonably reliable estimate of open market value. If the commission had
asserted as a matter of law that land with planning permission for residential
development had to be sold on the open market and could never without breach of
the statute be offered to the former owner, I would consider that to be a legal
misdirection.
I have felt
some doubt as to the correct understanding of the commission’s letter of
September 7 1987 which is challenged in this case, but it is only fair to
remember that that letter was not written as a definitive statement of the
commission’s case. Read in context and in the light of the other evidence, the
letter does not, in my view, make the assertion or contain the misdirection
mentioned above. The commission’s evidence is that the lack of comparable
transactions and the lack of market experience in the Northampton area make it
impossible to put an informed and reasonably reliable estimate on the value of
this land and that it cannot be confident that the best consideration will be
obtained unless the land is sold on the open market. This is a factual not a
legal assertion. The evidence before us does not show that opinion to be wrong,
let alone irrational or absurd.
Mr Wood, for
the former owners, founds his argument primarily on the word ‘reasonably’ in
section 37(3). That qualification of ‘obtainable’ in my view makes clear that,
in obtaining the best consideration, the commission is not obliged to resort to
extraordinary or unconventional or questionable means. If it were necessary to
make clear that a public official transacting public business is not required
to act in a way which would be regarded as extreme or shameful in the conduct
of his own private business (and I say nothing of the position of trustees),
then, for my part, I think this word makes that clear. But I cannot, despite Mr
Wood’s attractive argument, treat this word as authorising the sale of land at
any price below the full current open market value. If, therefore, as here, the
commission shows that that value cannot be reliably ascertained save by
offering the land on the open market, I do not think the former owners are
assisted by the language of the subsection.
If a sale at
an undervalue is to be made, the general or special authority of the Secretary
of State is required. The former owners rely on the guidelines as giving such
authority. In my view they plainly do not. They preceded the 1985 Act. They
envisage a sale on the basis of full current open market value. They do not
purport to confer authority.
I think the
judge was right for the right reasons. I am satisfied that the former owners
are not entitled to relief. It is now for the commission to reconsider the sale
of this land in the light of its statutory duty and the guidelines: whether the
passage of a year will have yielded sufficient market experience to found a
reliable assessment of current open market value without the need for a sale on
the open market we do not know.
BUTLER-SLOSS
LJ agreed and did not add anything.
The appeal
was dismissed with costs. Leave to appeal to the House of Lords was refused.