Compulsory purchase – Compensation – Claimants alleging interest in land compulsorily acquired by respondents – No notice to treat served on claimants – Whether acquiring authority obliged to serve notice to treat on owners of all interests in land acquired – Whether omission to serve notice to treat on claimants precluding claim for compensation – Whether Lands Tribunal having jurisdiction to determine questions as to claimants’ title – Preliminary issues determined in favour of claimants
The claimants were involved in constructing a new channel tunnel rail link to St Pancras station. In connection with that work, they needed to divert certain electricity cables. The route that they had planned for the diversion was included in an area of land that the respondents had acquired pursuant to a 1996 compulsory purchase order made for the purpose of constructing a new road. The claimants claimed compensation for disturbance on the basis that they had had an interest in the land in question and had incurred additional costs in diverting the cables by a different route. They asserted that the interest was an equitable interest derived from the secretary of state for transport through a number of agreements, dealing with the arrangements for the construction of the rail link and the transfer of interests in the land upon which it and its associated infrastructure were to be built.
The respondents contended that: (i) neither claimant had any interest in the land that would entitle them to compensation; (ii) the agreements that the claimants relied upon did not have the effect that they asserted; and (iii) they had not been obliged to serve notice to treat upon the secretary of state or the claimants in respect of those interests. They submitted that service of notice to treat was a prerequisite to entitlement to compensation, in the absence of which the claimants were excluded from claiming compensation. Preliminary issues were determined as to the effect upon entitlement to compensation of a failure to serve notice to treat.
Decision: The preliminary issues were determined in favour of the claimants.
(1) An acquiring authority was not at liberty to select which interests in the land to be acquired they wished to purchase, and it could not choose to serve notices to treat only in respect of those interests. That would be contrary to the express wording of section 5(1) of the Compulsory Purchase Act 1965, which required service of notice to treat upon “all persons interested in” the land in question. An authority was not entitled, by omitting to serve notice to treat, to cause loss to an owner of an interest in the land without paying compensation. An acquiring authority had to serve notice to treat upon all parties interested in the land.
(2) A party that had not been served with notice to treat could still have compensation assessed under section 10 of the 1965 Act (successor to section 68 of the Land Clauses Act 1845): Adams v London & Blackwall Railway Co (1850) 2 Mac & G 118 applied; Martin v London Chatham & Dover Railway Co (1866) 1 Ch App 501 considered. Section 10 enabled a claim for compensation to be made by the owner of an interest in land taken for the works, and there was no reason to limit its operation to interests in respect of which notice to treat had been served. The purpose of section 10 was to sweep up claims for compensation for which the other provisions had not provided and to enable a claimant to have them assessed. If an acquiring authority had omitted to serve notice to treat on every interest, as required by section 5, and had entered on the land, then section 10 provided an owner that had received no such notice with the means of claiming compensation for the value of its interest and for consequential loss. The right to receive notice to treat and compensation applied equally to those whose interest was equitable in nature.
(3) Where the acquiring authority contended that the Lands Tribunal had no jurisdiction because the claimants had no compensatable interest, the tribunal had the power to determine that issue: Re Purkiss’ Application [1962] 1 WLR 902 considered; Duttons Brewery Ltd v Leeds City Council (1981) 261 EG 885, 989 distinguished. The tribunal had jurisdiction to determine any question of law that arose on any reference, application or appeal. If the question was whether, on the facts, an entitlement to compensation arose for injurious affection under section 10, it had to decide that question; an error in its decision could be corrected on appeal to the Court of Appeal. A decision on a question of title would, however, have effect only for the purposes of the decision and the legal consequences that flowed from it. Moreover, if a reference proceeded on the assumption that a claimant had title to the land, the acquiring authority would be able to resist the payment of the compensation determined by the tribunal if the claimant was unable to make out title.
Guy Roots QC (instructed by Cripps Harries Hall LLP, of Tunbridge Wells) appeared for the claimants; Barry Denyer-Green and Philip Sissons (instructed by Barlow Lyde & Gilbert) appeared for the respondents.
Sally Dobson, barrister