England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/07/2006

Peter Smith J :

INTRODUCTION

1. This judgment arises out of an application by the Claimant issued on the 5th December 2005 for Permission to Amend the Particulars of Claim in the form of the draft amendment annexed to that application. The application came on for hearing on 28th June 2006. On that occasion in the light of exchanges that took place between Mr Laurence QC (who with Miss Ross Crail appears for the Claimant) and myself I adjourned the matter to allow an opportunity for disclosure of documents of the former Land Authority for Wales ("LAW") currently held by the Welsh Assembly and others to be obtained (by order if necessary).
2. It came on to be heard on 21st July 2006. Before that hearing in the light of the disclosure that had taken place Mr Laurence QC produced a further amendment which he refined again over the short adjournment.
3. The Defendants' case as put forward by Mr Porten QC who with Mr Ranjit Bhose appears for the Defendants is that none of the proposed amendments has any prospect of success so that permission to amend ought to be refused for all versions of the proposed amendments.

BACKGROUND

4. The Claimant has since 1st April 1993 been registered proprietor of land to the west of Caerphilly Road Heath Cardiff under title number WA86121 ("the Claimant's Land"). It has the benefit of a right of way to Caerphilly Road over adjoining land. That adjoining land was initially registered with title number WA61858.
5. The right of way had been reserved for the benefit of the Claimant's land in a conveyance dated 7th September 1976 between constructors John Brown Limited (as vendor) and W T Davies Transport Limited (as purchaser). The wording of the reservation is:-

"excepting and reserving unto the Vendor and its successors owners and occupiers of the land edged blue on the plan ("the retained land") or any part thereof…….

(3)……….. a right of way at all times and for all purposes with or without vehicles over and along the land coloured green hatched black on the plan" (" the Service Road") ".

6. The adjoining site is known as the former Phoenix Brickworks ("the Phoenix Site").
7. Part of the Phoenix Site is now owned by the First Defendant under title number CYM170881 (with some being transferred to another company Westbury Homes (Holdings) Limited ("Westbury") under title number CYM170879.
8. The First Defendant originally owned the site of the Service Road within its title CYM170881 but on 23rd May 2005 transferred it to the Second Defendant for a consideration of £1 and it is now registered with a separate title (carved out of CYM170881) under title number CYM240937. It was thus registered on 3rd August 2005.
9. There is a connection between the two Defendants through share holdings. The Second Defendant it is believed has no assets other than such part of the Phoenix Site as it might own and carries on no business.
10. The Defendants do not deny that the Claimant's Land has the benefit of a right of way over the Service Road.
11. The issue between the parties is as to whether or not the Claimant's right of way has been overridden by the exercise of statutory powers by the Land Authority for Wales ("LAW") so as to enable the redevelopment of the Phoenix Site to take place. In this context the Phoenix Site can only be developed if the Service Road is stopped up. The Defendants propose that in the event that it is stopped up the Claimant's land would have the benefit of a new road to be constructed over the development of the Phoenix Site. It is not suggested by the Claimant that this would give them any inferior access.
12. The reality is that the dispute is not about a right of way as such but about the amount of money that the Claimant can extract by negotiation or otherwise from the Defendants as a price for in effect allowing the development on the Phoenix Site to take place by it allowing its private right of way to be diverted over the roadway on the Phoenix Site.

DEVOLUTION OF TITLE OF PHOENIX SITE

13. The Phoenix Site was acquired as a whole from Tarian Developments Ltd in 1993 by Thomas Bailey Investments PLC ("TBI") which was registered proprietor with title absolute on 26th August 1993.
14. TBI transferred the title to Tesco Stores Ltd on a date previously unknown to the Claimant but believed by it to have been prior to 10th March 1995. Following the adjournment from the hearing of 28th June 2006 the Claimant requested certain documents from the Defendants and Tesco and Tesco's solicitors Berwin Leighton Paisner. Amongst other things a completion statement was produced dated 10th March 1995 and a transfer as between (1) Thomas Bailey Investments Ltd (2) TBI PLC (3) Tesco Stores Ltd.
15. The completion statement shows that Tesco paid £3,259,261 for the Phoenix site. The transfer of the same date reflects that.
16. That transfer was never registered probably.

LAW'S INVOLVEMENT

17. TBI PLC and LAW apparently entered into negotiations before 1995 concerning the possible overriding of the Claimant's right of way. A draft agreement has been disclosed and it was assumed for the purpose of the hearing that the actual agreement was to the same effect. That agreement after various definitions contains recitals at clause 1.3 to the effect that LAW had agreed pursuant to its statutory powers contained in sections 103 and 104 and schedule 20 of the Local Government Planning and Land Act 1980 ("the 1980 Act") to assist in securing the development of the Phoenix site by the acquisition of "Relevant Interests". The Relevant Interests were all rights and interests over the existing right of way held by the owners and occupiers of the Claimant's Land. TBI agreed to be responsible for LAW's costs and fees. The fee in question was £40,000 plus VAT to be paid to LAW for the use of its statutory powers to facilitate the development of the Phoenix site. Nobody before me suggested such a fee was improper but I have to say I find it surprising that it can be said that the Local Authority can bargain away the exercise of its rights for the benefit of a private developer in exchange for a fee. However as nobody is taking that point I shall say nothing more about it.
18. On 17th March 1994 LAW resolved to enter into an agreement with TBI dealing with the Claimant's right of way on the terms and conditions to be first approved by the Chief Executive. That decision was preceded by three reports dated 8th October 1993, 14th January 1994 and 11th March 1994 respectively. The first of those showed that the LAW involvement was to override the existing right of way, create the new access for existing users and transfer the land back to TBI. It set out the fee in addition to the costs.
19. On 14th January 1994 there was concern that negotiations had not been fully exhausted and that LAW had to be satisfied that bona fide attempts had been made to resolve the issue. Correspondence was apparently shown to the board which suggested that negotiations had ensued but had not been fruitful. The recommendation then was to purchase and re-sell the Phoenix site. That was the proposal. Finally on 11th March 1994 the fee was raised to £80,000 plus costs and the proposal was that there would be a transfer of the site from TBI to LAW, LAW using its schedule 20 powers (which I set out below) would override the existing access rights, create the new access and transfer the site back to TBI or its nominee.
20. On 21st July 1993 and 10th August 1993 section 106 agreements were entered into which showed that the end of the right of way would be blocked off and the mouth of the road would become dedicated open space. It also of course shows a diversion of the right of way over part of the land comprised in the Phoenix site.

SUBSEQUENT EVENTS

21. That is not precisely how the matter actually proceeded. On 10th March 1995 as I have said TBI sold the Phoenix site to Tesco for £3,259,261 plus VAT and interest giving a grand total figure of £3,920,938.52.
22. Also on 10th March 1995 Tesco, LAW and TBI entered into an agreement ("the Agreement").
23. The Agreement after various definitions had a number of recitals in it. Recital 1.3.1 recited TBI had used its best endeavours to acquire the Relevant Interests. The Relevant Interests are all existing rights of way held by the owners and occupiers of the Claimant's land over the Phoenix site. The second recital (1.3.2) was that the Development would not be able to proceed without the provision of the Alternative Right of way and the third recital recited that LAW and Tesco wished to secure the Development.
24. Accordingly LAW pursuant to its statutory powers under sections 103 and 104 and schedule 20 of the 1980 Act agreed it would assist in securing the Development "by the acquisition of the Relevant Interests on such terms and conditions as appear in this Agreement". Tesco by recital 1.3.5 agreed that it would through its agent secure the approval of the Local Planning Authority for the realignment of the existing right of way to the route of the alternative right of way. I should say that has been achieved.
25. Clause 2 contains LAW's "specific obligations". The first obligation is to accept the First Transfer in the form of the draft transfer annexed and pay the First Consideration in accordance with clause 3.1.
26. Its second obligation is following the First Transfer to use all reasonable endeavours to acquire the Relevant Interests whether by agreement with their owners or overriding in accordance with paragraph 7 (1) of schedule 20 of the 1980 Act. The third obligation is on the 20th working day following the date of the First Transfer to execute the Second Transfer for the Second Consideration. Clause 2.4 provides that its obligations shall not interfere with LAW's duties to settle compensation pursuant to schedule 20 but that it shall obtain TBI's written approval as to the amount of consideration or level of compensation to be paid (such approval not to be withheld unreasonably).
27. The First Consideration expressed in the First Transfer is £1,725,000 plus VAT. That is the amount that LAW paid. The Second Consideration (i.e. the amount that Tesco pays to reacquire the land) is £1,765,000 plus VAT. That is an uplift of £40,000. In addition on 7th March 1995 LAW invoiced TBI for £40,000 plus VAT which was paid on 23rd February 1995 and the VAT element (£7,000) was paid on 14th March 1995. That can only be the fee payable under the draft Agreement to which I referred above.
28. Thus LAW was receiving £80,000 plus VAT in total for exercising its powers to enable the Development to take place.
29. The actual First Transfer was executed on 19th April 1995 and the re-transfer was effected on 18th May 1995.
30. No explanation has been provided as to the reduced consideration from the purchase price paid by Tesco when it acquired from TBI.
31. In the intervening period under the Agreement LAW was under a duty to negotiate the acquisition of the Claimant's right of way. There had been correspondence on this in the previous year. Thus for example the Claimant's solicitors wrote to LAW on 12th May 1994 suggesting that their right of way held the key to the Development and that any purchase price to acquire under paragraph 7 of the 1980 Act would require the well known ransom principles of Stokes v Cambridge Corporation [1961] 13 P & CR 77 to apply.
32. In fact in my view any compensation payable could not include the loss of the right in effect to extract a sum of ransom payment. The true measure of compensation under the 1980 Act is diminution in value. This is the same as the principles under section 237 of the Town and Country Planning Act 1990. I reviewed those principles in Midtown Ltd v City of London Real Property Company Ltd [2005] EWHC 33 (Chancery) at paragraph 34 referring to Stockport MBC v Alwiyah Developments [1983] 52 P & CR 278 C.A. and Wrotham Park Estates Ltd v Hertsmere BC [1991] 62 P & CR 652 C.A. Of course a different measure of damages may be obtainable in appropriate case in lieu of an injunction; see the authorities again reviewed in Midtown.
33. It is therefore clear nevertheless that the Claimant's solicitors were intent on seeking to extract a very large sum of money for the "privilege" of having their right of way removed a short distance. As I have said above it is not suggested that the alternative right of way in any way is inferior; nor is it suggested that its removal causes in reality any loss to the Claimant.
34. Following the First Transfer further correspondence passed between the parties' respective lawyers. On 27th April 1995 LAW wrote to the Claimant's solicitors enclosing a formal notice as to the operation of paragraph 7 (1) of the 1980 Act. That notice said that the right of way might be interfered with by the Development in accordance with planning permission and that the interference was authorised by paragraph 7 (1) of the 1980 Act but that prior to any such interference LAW would propose that the owners of the Claimant's land be offered an alternative right of way over the Phoenix site in the form of the draft easement annexed thereto. It has not been suggested that the proposed easement is in any way unreasonable or unacceptable.
35. The Claimant's solicitors replied to that letter on 1st May 1995 raising various questions as to the method of acquisition and the like. Some of the information requested was given under cover of a letter dated 26th May 1995 but the terms of the acquisition were kept commercially confidential and the Claimant's solicitors were informed that the land had now been transferred to Tesco Stores Ltd.
36. Nothing happened of significance until later applications were made in 2002 to develop the Phoenix site and correspondence thereafter ensued between the Claimant's lawyers and the Defendants' lawyers. It is fair to point out that the Claimant's lawyers in the correspondence with LAW in 1994 (see for example the letter of 12th May 1994) had questioned the legality of a purchase by LAW and an immediate resale to TBI. Therefore although they did not know the details in May 1995 because they were withheld they did know in general what was done. Further they had been made aware of the fact that arrangements had been put in place to enable a contention that the Claimant's right of way would be overridden and they were told that the land had been transferred to Tesco.
37. In my view had they wished to challenge the validity of the process that was carried out in 1995 they had enough material to enable them to do so at that time. In my view they could have challenged that decision either by judicial review or by commencing proceedings in 1995 in the form of the present proceedings.
38. Judicial review is of course subject to severe time restraints. There is however in my view no reason why the present proceedings could not have been brought in 1995. No real explanation has been put forward as to why the present proceedings were not issued save the unconvincing one that there was no need to commence the proceedings at that time; it only arose it is said when a prospective development was to proceed. I say unconvincing because in my view the Claimant well knew that the steps LAW had taken were designed to override its rights in 1995 and that is when it ought to have questioned the ability of those processes to be used as the Defendants contend.

THE PRESENT PROCEEDINGS

39. The Claim Form was issued on the 1st July 2005. In the present Claim the Claimant challenges the right of the Defendants in effect to block up the existing right of way in accordance with an agreement entered into between the First Defendant and Cardiff County Council under section 278 and section 38 of the Highways Act 1980. It is asserted (correctly) that the works proposed to be carried out would (if not otherwise lawful) constitute a substantial interference with the right of way and an actionable nuisance. It will make the right of way impassable because it closes off the exit on to the main Road. It becomes a road to nowhere.
40. The Claim Form then sets out that the claimed justification for such action is the purported exercise of powers under the 1980 Act.
41. The Claimant disputes that any reliance could be placed on those provisions and seeks a declaration that the erection of the bollards etc is not authorised by the 1980 Act and consequential relief arising out of that.
42. I accept the Claimant's submission that absent an express clause there is no power on the part of the owner of servient land to divert a right of way; see the decision of Lightman J in Greenwich Healthcare NHS Trust v London and Quadrant Housing Trust [1998] 1 WLR 1749. I leave open the question (as he did) as to whether or not if an alternative route is available and just as convenient there is no actionable interference (that goes to remedies). Consideration of that point is not before me.

THE BASIS OF THE PRESENT APPLICATION

43. It is said that the present application arises out of the discovery that LAW acquired the Phoenix site from Tesco and transferred it on to Tesco. It is contended that the Claimant believed that LAW acquired the Phoenix site from TBI and then sold it on in May 1995 to Tesco. I accept that as appears from the correspondence the Claimants did not appreciate the precise nature of the transaction as it has been subsequently disclosed. However as I have said the reason why it has not been disclosed is that it was rebuffed on confidentiality grounds in 1995 and took no further steps. The Defendants' initial objections were based on the grounds that this was a public law issue and ought to have been raised by judicial review with the strict time limits applicable to such a claim. I do not accept that this was necessarily a public law issue for the reasons set out in particular in the House of Lords decision in Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624 at paragraph 628 G - 629 D per Lord Bridge. In my view, as I have said above, the Claimant could have raised the issue in pleadings in the present form, but it could have raised them in 1995. This is especially so when the Claimant's contentions are, as I understand them, not to challenge the decision that LAW made and the actions it took on Wednesbury grounds which in my view would be only capable of being challenged by Judicial Review. Rather it is asserting that the intentions of LAW to use their overriding powers have in fact not been achieved by what they have done. That seems to be to be primarily a private law issue alone. I therefore conclude (if necessary) that the public law point raised by the Defendants is not correct. Mr Porten Q.C. acknowledged as much in his final submissions. His real point at that stage, was that the Claimant should be refused the amendment on account of delay. He acknowledged that the Claimant could pursue proceedings in either form and he contended (rightly in my view) that it could have instituted these proceedings over 10 years earlier than it did.

THE STATUTORY POWERS

44. The relevant provisions are sections 102-4 and schedule 20 paragraphs 6-7 of the Local Government Planning and Land Act 1980 as follows:

"103.--(1) The Authority shall have the function of acquiring land in Wales which in its opinion needs to be made available for development, and of disposing of it to other persons (for development by them) at a time which is in the Authority's opinion appropriate to meet the need.

(2) Before it acquires the land, the Authority shall—

(a) consider whether the land would or would not in its opinion be made available for development if the Authority did not act,

(b) consider the fact that planning permission has or has not been granted in respect of the land or is likely or unlikely to be granted,

(c) (in a case where no planning permission has been granted in respect of the land) consult county and district councils in whose area the land is situated and consider their views,

(d) consider the needs of those engaged in building, agriculture and forestry and of the community in general.

(3) Where the Authority acquires land, then, before it is disposed of—

(a) the Authority may (with the Secretary of State's consent) execute works in respect of the land where it is of opinion that it is expedient to do so with a view to the subsequent disposal of the land to other persons for development by them, and

(b) the Authority shall manage and turn to account the land pending its disposal to other persons for development by them.

(4) The works mentioned in subsection (3) above include engineering works and works for the installation of roads, drains, sewers, gas supplies and electricity supplies, but do not include works consisting of the erection of buildings.

(5) If requested to do so by a public authority (within the meaning of Schedule 19 below) the Authority may advise the authority about disposing of any of the authority's land in Wales to other persons (for development by them), and may assist the authority to dispose of the land.

(6) The Authority may assist county and district councils in Wales in any assessment such a council makes of land which is in its area and which is in its opinion available and suitable for development.

(7) The Authority may charge a reasonable fee for any advice or assistance under subsection (5) or (6) above.

(8) A county or district council in Wales shall have power to enter into, and carry out, an agreement with the Authority whereby the council will, as agents of the Authority, perform any service or execute any works which the Authority could perform or execute by virtue of this Act.

(9) The Authority shall, without prejudice to its powers apart from this subsection, have power to do anything to facilitate, or anything which is conducive or incidental to, the performance of any of the Authority's functions.

104.--(1) The Authority--

(a) shall have power to acquire by agreement, or

(b) on being authorised to do so by the Secretary of State shall have power to acquire compulsorily, any land which, in the Authority's opinion, is suitable for development.

(2) Where the Authority exercises or has exercised its powers under subsection (1) above in relation to any land, it shall have power to acquire by agreement or on being authorised to do so by the Secretary of State shall have power to acquire compulsorily--

(a) any land adjoining that land which is required for the purpose of executing works for facilitating its development or use;

(b) where that land forms part of a common or open space or fuel or field garden allotment, any land which is required for the purpose of being given in exchange therefor;

(c) new rights over land (that is, rights not previously in existence) required for the purpose of exercising the Authority's functions.

(3) The 1946 Act shall apply in relation to the compulsory acquisition of land in pursuance of this section as if—

(a) this section were contained in an Act in force immediately before the commencement of that Act;

(b) the Authority were a local authority.

(4) Schedule 20 below, in which—

(a) Part I modifies the 1946 Act as applied by subsection (3) above,

(b) Part II deals with the acquisition of land by agreement, and

(c) Part III contains supplemental provisions as respects land acquired under this section, shall have effect."

"7.--(1) The erection, construction or carrying out, or maintenance, of any building or work on land which has been acquired by the Authority under section 104 above, whether done by the Authority or by a person deriving title under it, is authorised by virtue of this paragraph if it is done in accordance with planning permission notwithstanding that it involves interference with an interest or right to which this paragraph applies, or involves a breach of a restriction as to the user of land arising by virtue of a contract.

(2) Nothing in this paragraph shall authorise interference with any right of way or right of laying down, erecting, continuing or maintaining apparatus on, under or over land, being a right vested in or belonging to statutory undertakers for the purpose of the carrying on of their undertaking.

(3) This paragraph applies to the following interests and rights, that is to say, any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support.

(4) In respect of any interference or breach in pursuance of sub-paragraph (1) above, compensation shall be payable under section 7 or 10 of the Compulsory Purchase Act 1965, and shall be assessed in the same manner and subject to the same rules as in the case of other compensation under those sections in respect of injurious affection where the compensation is to be estimated in connection with a purchase to which the said Act of 1965 applies, or the injury arises from the execution of works on land acquired by such a purchase.

(5) Where a person deriving title under the Authority is liable to pay compensation by virtue of sub-paragraph (4) above, and fails to discharge that liability, the liability shall, subject to sub-paragraph (6) below, be enforceable against the Authority.

(6) Nothing in sub-paragraph (5) above shall be construed as affecting any agreement between the Authority and any other person for indemnifying the Authority against any liability under that sub-paragraph.

(7) Nothing in this paragraph shall be construed as authorising any act or omission on the part of any person which is actionable at the suit of any person on any grounds other than such an interference or breach as is mentioned in sub-paragraph (1) above.

(8) In this paragraph--

(a) a reference to a person deriving title from another person includes a reference to any successor in title of that other person;

(b)a reference to deriving title is a reference to deriving title either directly or indirectly."

45. The Claimant's contention based on these statutory provisions is set out in the proposed paragraphs 14A-15A and 23 of the amendments proposed to the Particulars of Claim.
46. The first contention is that acquisition of land within the meaning of s.104(1)(a) of the 1980 Act meant acquisition of the legal and beneficial ownership of the land. Because LAW was not registered and because it took subject to an obligation to retransfer and did not part with ownership of monies, it therefore never acquired the Phoenix site within the meaning of the Act.
47. I disagree with that analysis, unless a challenge is being made to the genuineness of the documents as they appear to be executed. It must be appreciated, that at all material times the title was a registered title. The legal estate is not acquired by the transfer; it is acquired by the act of subsequent registration. Under the provisions of the Land Registration Act 1925 which applied to the transfer, LAW, like any other transferee with a right to register, is enabled to deal with the title before becoming registered, see s.37 LRA 1925. The effect of the transfer is to transfer the beneficial interest in the Phoenix site to LAW. It also conferred on LAW the right to be registered. It could have registered the First Transfer but it chose not to do so. Doubtless the reasons for that were two-fold. First it would be transferring the title away twenty days later and second to save Land Registry Fees. This provision was reviewed (amongst other things) in a Court of Appeal decision of Paragon Finance Plc v Pender [2005] 1WLR 3413 (at paragraph 64 in the context of a mortgagee). Had the title been unregistered then the legal estate would have vested in LAW at the time of a conveyance/transfer in its favour. It might then be subject to an obligation to retransfer back to Tesco, but that does not affect the plain fact that LAW acquired by the First Transfer the entirety of the estate it could acquire from Tesco the Transferor. It became the owner in equity and it would become the owner in law upon registration. I do not see why LAW could not "wash" the title through its brief ownership in order to exercise its statutory powers provided it considered the exercise properly. It is not suggested the decision was improper or wrong.
48. Equally the Second Transfer by LAW to Tesco is plainly in my view, a transfer to a successor in title. If one analyses the position if Tesco had ordinarily sought to register itself it would have to produce the chain of transfers. It does not need to do so in this case because it is of course already the registered proprietor. It is not clear whether Tesco registered the title on the basis of the 10th March transfer or the First and Second Transfers together. However it does not matter in my opinion.
49. It seemed to me that the only way to challenge these dispositions was on the basis of suggesting that they were shams within the principle elucidated in the decision of Snook v London and West Riding Investments Ltd [1967] 2 QB 786 at page 802 C-F as follows:

"As regards the contention of the plaintiff that the transactions between himself, Auto Finance and the defendants were a "sham," it is, I think, necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the "sham" which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities (see Yorkshire Railway Wagon Co. v. Maclure and Stoneleigh Finance Ltd. v. Phillips), that for acts or documents to be a "sham," with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating. No unexpressed intentions of a "shammer" affect the rights of a party whom he deceived. There is an express finding in this case that the defendants were not parties to the alleged "sham." So this contention fails."

50. At the first hearing Mr Laurence QC did not suggest that that was his stance although he came close to saying so. In light of my observations he produced at the adjourned hearing further amendments in paragraphs 15 AA and 15 AAA.
51. The first of those is an allegation that was no material resolution of LAW to enter into the Agreement. Accordingly it is submitted that the acquisition of the Phoenix site was ultra vires and without legal effect. This during the course of argument was refined and Mr Laurence QC produced a third draft in handwritten form which reflected the analysis of his claim as amendment 15 AA was argued. In effect he argued that the authorisation enabled LAW only to negotiate the acquisition of the Claimant's right of way or override it within the 20 day window and that it did not authorise any subsequent overriding outside that period.
52. This is extremely technical and in my view, although ingenious, is wrong. The authority derived from the 1994 resolutions plainly shows that LAW intended to use its powers under the 1980 legislation to override the Claimant's right of way. It also minuted that as regards TBI. It i.e. TBI was a party to the Agreement. It is plain therefore in my view that the Agreement was entered into under the aegis of the earlier minutes. That is why TBI was a party; it will be recalled that TBI paid £47,000 for the privilege. By that stage it is plain that TBI had negotiated an onward sale to Tesco, but it does not alter the primary basis for LAW exercising its powers under the existing resolutions. I should say that I do not exclude the possibility that there were later resolutions which have now been lost. That can only improve the Defendants' position.
53. Equally, although under the Agreement it contracted to negotiate and acquire the Claimant's right of way, the overall position was ultimately its intention to override the right of way if necessary and that is the effect of the notice that was served by letter on the Claimant.
54. If it were necessary, I would conclude that the correspondence (albeit brief) that ensued between LAW and the Claimant's lawyers following the acquisition from Tesco was done in accordance with clause 2 of the Agreement.
55. Amendment 15AAA recites the earlier recommendations and reports. It then (sub paragraph 5) denies there was any effective resolution and suggests that LAW "lent its name to an agreement which merely involved a transfer and re transfer and thereby earned a fee of £80,000". Amendment 15AAA (6) asserts that LAW could only comply with its statutory powers by itself carrying out the works in accordance with the planning permission, as it was never contemplated that it would carry out the obligations. Thus it is suggested that clause 2.2 of the Agreement was intended to give the appearance of creating by the emphasised obligation a means of achieving the overriding of the Claimant's right of way which the parties never intended LAW to carry out and which LAW did not intend to carry out.
56. In sub paragraph (7) it is asserted that LAW made no attempt to acquire the Claimant's right of way.
57. Once again in my view this is an ingenious exercise but it is unreal. I do not see how it can be seriously argued that LAW did not acquire and then dispose to a successor in title i.e. Tesco, (and any successor from Tesco) which would carry out the works of interference. The key words in my view in paragraph 7(1) " are the erection construction…[of] work on land which has been acquired by the Authority under s.104… whether done by the Authority or by a person deriving title under it, is authorised by virtue of this paragraph". It is plain from the resolutions and the Agreement that LAW acquired in my view under s.104. I come to that conclusion irrespective of whether that is in accordance with the Agreement or generally. Second it is plain that it acquired the Phoenix site for that purpose and for subsequent disposal of it to a successor in title (Tesco). The fact that Tesco transferred to it is in my view irrelevant. There is a chain of title. One poses the question, for example, if either LAW or Tesco had refused to complete, whether there would have been litigation based upon the documents. The registered title in question might have been the subject matter of cautions lodged to protect interest. I do not see how the transactions are any different from transactions that could have occurred if LAW had acquired from Tesco and disposed in favour of the Defendants many years later. Such a practice happens under s.237 TCPA (see my decision in Mid Town). The wording in these sections is precisely the same. Its purpose is to enable a local authority to facilitate re-development in its area by exercising its powers. The exercise of those powers overrides any third party right subject to compensation. In my view that is plainly what has happened in this case. If the Claimant had wished to challenge the decision it could have done so by Judicial Review in 1995 or possibly by commencing proceedings in the present way.
58. The amendments, however, in my view, have no prospect of success at this stage. First, for the reasons I have set out above, I do not accept the legal analysis as put forward by Mr Laurence in his opening argument.
59. Second I do not accept that the actual acquisition was not authorised for the reasons I have set out above and finally I do not accept that the transactions can be challenged as being not genuine or (rather) not effective under the statutory powers.

DELAY

60. If necessary I would have accepted Mr Porten Q.C's submission in closing that the application should be refused because of the delay. In my view to refuse such an application to amend on that basis requires clear delay that causes prejudice. There is clear prejudice arising from the delay. First if the technical points had any merit and had been raised expeditiously in 1995, they undoubtedly would have addressed them by either fresh resolutions or fresh transactions. That cannot be done now because LAW has been dissolved and its functions transferred to the Welsh Development Agency which itself has been dissolved and its functions transferred to the National Assembly for Wales. Second it is quite wrong in my view to allow an application to proceed to examine events that are over 10 years old. Memories are likely to fade and whilst some documents have been found there is the possibility (for example) of a lost memorandum sanctioning the Agreement. It is unrealistic as the Claimant suggests in paragraph 5 of its supplemental skeleton that I should allow an amendment that would involve interviewing members and officers of LAW who were involved at the time (i.e. 10 years ago). To ask people to be interviewed for the first time about events going back to 1993 when proceedings could have been issued over a decade ago is unacceptable in the modern regime. Finally in this context I have to bear in mind two further factors. First, if the decision of LAW is to be impugned it cannot in my view be done in proceedings to which its statutory successor the National Assembly is not a party. That will further delay matters. Second, whilst the Claimant has been in a position to litigate since 1995 at the latest, it has not done so for over a decade. Absent a claim the Defendants acquired the title. They are entitled to assume after the correspondence in 1995 petered out that there would have been no challenge. In this context the difficulty of obtaining documents is self evident. Further development has taken place and if the right of way cannot be diverted that might make the whole planning permission unlawful. That in my view is a significant amount of prejudice.
61. In addition I am in this context guided by the fact that this claim is not about a severe uncompensatable loss or damage to the Claimant. It will be no worse off with a diverted right of way. It is all about using this litigation as a stick to beat the Defendants into making a payment greater than the minimum amount of statutory compensation that will be payable as a result of the exercise of the powers. There is no genuine loss or damage in this case.
62. For all of those reasons I therefore refuse the Claimant permission to amend the Particulars of Claim and dismiss its application.
63. Given my judgment the Defendants might like to consider the position of the proceedings as a whole and I will entertain submissions in that regard when this judgment is handed down.