Royal Court
(Samedi Division)
Judgment reserved: 10 July 1998
Reasoned Judgment delivered: 22 July 1998
Before: Sir Godfray Le Quesne, QC, Commissioner
and Jurats Herbert and Rumfit
BetweenThe Greffier of the StatesApplicant
AndLes Pas Holdings, LtdThe Owner
And The Waterfront Enterprise BoardThe Intervener
In the matter of the Compulsory Purchase of Land (Procedure)(Jersey) Law, 1961.
Application by the Applicant for an Order that: the interest in the land be vested in the Public, and that a record of the title of the Public be registered in the Public Registry of Contracts, in accordance with the provisions of Article 4A(2) of the above Law.
Solicitor General for the Applicant
Advocate JD Kelleher for the Owner
Advocate WJ Bailhache for the Intervener
JUDGMENT
THE COMMISSIONER:
1.We have before us an application by the Greffier of the States under Article 4A of the Compulsory Purchase of Land (Procedure) (Amendment No. 3) (Jersey) Law, 1961. This Law we shall call ‘the Compulsory Purchase Law’. The application is for an order that all such interest (if any) as Les Pas Holdings, Ltd may have in certain areas of foreshore and reclaimed land adjacent on the West to the Albert Pier be vested in the public. The area in question (which we shall call ‘the disputed area’) forms part of the area of the St. Helier Waterfront which is being reclaimed and developed by the States. The disputed area consists of land already reclaimed and in part already developed. On it stands the Elizabeth Harbour Terminal. Further development of the disputed area is now being planned by the States or their agents, the Waterfront Enterprise Board, Ltd (which we shall call ‘the Board’).
2.Article 4A(2) of the Compulsory Purchase Law provides that an order vesting land in the public is to be made if the Court is:
"satisfied that the provisions of this Law have been complied with".
Les Pas Holdings, Ltd (to which we shall refer as ‘Les Pas’) contend that the States have failed to comply with these provisions.
3.The Greffier made his application to the Court on 29 May 1998. On the same day the Court gave leave to the Board to intervene in the proceedings arising from the application. The Board is a company wholly owned by the States. The States have appointed the Board to be their agents for the co-ordinated development of the whole Waterfront area, including the disputed area. When applying for leave to intervene, the Board alleged that uncertainty of the title to the disputed area was affecting its ability to fulfil its duty as development agency of the States.
4.The States began to reclaim foreshore immediately to the West of the Albert Pier in 1981. For their right to do this they relied on a lease by the Crown to the public of all the foreshore of the Island, except the areas occupied respectively by the Jersey Granite and Concrete Co, Ltd at Ronez and the Jersey Swimming Club at Havre des Pas. This lease was granted in 1950 for a term of 25 years, and renewed in 1980 for a further term of 25 years from 1 January 1975. The parties to it proceeded on the view that by the customary law of the Island the foreshore belonged to the Crown. This view, as we shall see, is now challenged by Les Pas.
5.The States now rely for their title to the disputed area not on this lease, but on three contracts of purchase passed respectively in 1983, 1989 and 1995, by which they acquired, or purported to acquire, the disputed area from the Crown.
6.In the early 1980s, a group of people became interested in reclaiming the foreshore at La Collette and Havre des Pas and developing the land thus formed. Prominent among them was Advocate RA Falle. Mr Falles researches led him to the view that by the customary law the foreshore does not belong to the Crown, but to the seigneur of the fief on the coast. Mr Falle himself acquired the fief de la Fosse, which includes the coast line South of St. Helier from West Park as far East as the Dicq. In the autumn of 1986 the group made public their plans for the area of La Collette and Havre des Pas, and Mr Falle put forward formally to the Receiver General his claim to the disputed area of foreshore alleging that it belonged to him as seigneur de la Fosse.
7.Correspondence about this claim went on between Mr Falle and the Receiver General between 1986 and 1989. In 1989 the members of the group formed Les Pas, and Mr Falle transferred to Les Pas the fief de la Fosse, including tout et tel droit comme lui peut appartenir in the foreshore. In order to avoid any possible development of a claim of prescription based on the lease of 1950, in 1989 Les Pas started an action against the Crown and the States claiming a declaration of its title to the foreshore. The parties to this action agreed at the end of 1989 that the summons should remain valid and any party should have the right to table the action on one months prior notice. Les Pas eventually tabled the action in 1994. It is still, we have been told, pursuing a stately progress through its interlocutory stages.
8.Meanwhile both sides had been developing their plans. Even before the formation of Les Pas, Mr Falles group had lodged a planning application in 1987 for its proposed development at Havre des Pas. The States instructed consultants in England to prepare a development plan for the whole of the Waterfront between West Park and the Dicq. This plan was received in the spring of 1991. It was debated in the States in November, 1991, and in August 1992 the Island Development Committee (as it was then styled) presented its report P.123 of 1992, containing modifications of the plan. This report was adopted by the States on 10 November 1992. We quote two passages from it:
"1.5In considering the contents of this report and its recommendations, it is worth remembering why the Plan is necessary and what it is intended to do. The original Brief drew attention to the fact that there are major forces for change in the Waterfront area, that the area presents many challenges and opportunities, and that there is a danger of irrevocable damage occurring if things are allowed to happen by default or without concern for their relationship to other activities. Major and complex issues will only be resolved satisfactorily within the context of a co-ordinated development framework, which, while not cast in tablets of stone, is nevertheless sufficiently robust to provide certainty and guidance for the community at large and for those people who will be expected to invest in the area.
1.6Unfortunately, what has occurred at the southern face of St. Helier in the past demonstrates the results of expediency and ad hoc decision-making in periods of rapid change, and highlights the need for an integrated structure for organising future development and area enhancement.
10.1The Andrews Downie Plan lays down, as it was required to do, a framework for the future development of the Waterfront area. To do this effectively it had to consider development proposals in sufficient detail to know how they would relate to the framework and each other, and to give a "vision" as to how the Waterfront might look in the future.
10.2To that extent, therefore, the details shown in the published masterplan document are only there to illustrate the framework. It is important for the States to establish a strategic development framework within which specific proposals can be worked up into detail. Failure to establish such a framework will result in a continuation of the ad hoc process that has typified the States approach to major projects in the Waterfront area over the last 20-30 years.
9.After the Waterfront plan had been received, Les Pas discussed with the States the possibility of modifying the plans previously lodged by Les Pas in order to accommodate them to the Waterfront plan. Les Pas filed amended plans, but the States terminated these discussions in the middle of 1993.
10.In the autumn of 1990, the Crown had obtained an opinion from leading and junior counsel in London about the ownership of the Jersey foreshore. This opinion supported the Crowns claim. Mr Falle was allowed to see it in May, 1992. Les Pas then consulted leading counsel, whose opinion supported their claim. This opinion was shewn to the Receiver General in July 1993. In December, 1993, Les Pas were told that the Policy and Resources Committee of the States had rejected Les Pas’ claim, having been advised that it was ‘entirely without merit’. It was in these circumstances that, as we have already recounted, Les Pas tabled their action early in 1994.
11.After the States had accepted report P123 of 1992, the area of foreshore west of the Albert Pier was reclaimed. The States proceeded to plan development of the land thus formed. In 1996 they designated one area for leisure and recreation use. In April 1997 they agreed in principle to grant a lease of this area to a private developer for the construction of a leisure complex, and to include in the lease an indemnity clause regarding the claim of Les Pas. It proved impossible to agree such an indemnity. In July, 1997 the States designated another area for residential use. The Policy and Resources Committee was subsequently advised that it was not possible to devise a form of indemnity which would be satisfactory to individual house owners and to those providing them with funds.
12.While the States were thus proceeding with planning for the development of the disputed area, Les Pas were hoping that it might be possible to reach agreement for a joint development of this area. There were meetings between them and the Policy and Resources Committee in the first half of 1997, but these led to nothing. Les Pas then instructed architects to prepare a master plan for the area west of the Albert Pier.
13.In November, 1997 the Policy and Resources Committee brought to the States a proposition for compulsory purchase of Les Pas’ interest in the disputed area. This proposition was due to be debated on 9 December 1997. However, on 28 November, 1997 Les Pas’ solicitors wrote to the States challenging the legality of the proposition. On the same day Les Pas’ architects sent to the Planning and Environment Committee an outline brief for development of the disputed area. The proposals made in this brief differed on some important points from the States’ development plan. The States did not respond to the outline brief.
14.As a result of the challenge to the legality of the compulsory purchase proposition of November, 1997, that proposition was withdrawn. On 20 January 1998 the Policy and Resources Committee presented to the States proposition P.2 of 1998. This was the proposition for compulsory purchase of ‘all such interest (if any) as Les Pas may have in (the disputed area]’, out of which the present proceedings arise.
15.It is now necessary to outline the provision made by law for the compulsory purchase of land. Article 2(1) of the Compulsory Purchase Law provides that the provisions of the Law shall only apply where another Law called a "Special Law" confers power on the States to acquire land by compulsory purchase in accordance with the provisions of the Compulsory Purchase Law.
The Special Law relevant to this case is the Island Planning (Jersey) Law, 1964. Article 4(1) of that Law provides:
"Where it appears to the States that any land should be acquired by the public of the Island for any of the purposes of this Law as set out in Article 2, it shall be lawful for the States to acquire such land by compulsory purchase on behalf of the public in accordance with the provisions of the Compulsory Purchase of Land (Procedure) (Jersey) Law, 1961…..".
The purposes of the Law set out in Article 2 are the following:
"(a)to provide for orderly planning in, and the comprehensive development of, land;
(b)to ensure that land is used in a manner serving the best interests of the community;
(c)to protect and enhance the natural beauty of the landscape or the countryside;
(d)to preserve and improve the general amenities of any part of the Island;
(e)to keep the coasts of the Island in their natural state;
(f)to control the placing of advertisements and hoardings;
(g)to protect sites of special interest;
and generally to prevent the spoliation of the amenities of the Island."
16.The procedure for compulsory acquisition is set out in certain Articles of the Compulsory Purchase Law. The Articles in question are 3, 4 (1) and (3), 4A (1) and (2):
"ARTICLE 3.
PLAN TO BE PREPARED AND MONEY VOTED.
No land may be acquired by compulsory purchase on behalf of the public unless -
(a)a plan showing the land to be acquired has been approved by the States; and
(b)a credit of the monies necessary to meet the expenses to be incurred in the acquisition of the land has been voted by the States.
ARTICLE 4.
PRELIMINARY NOTICES
(1) Subject as provided by paragraph (1) of Article 5 of this Law, the Greffier of the States shall serve a notice on every owner, lessee and occupier of the land to be acquired, of which a sufficient description shall be contained in the notice, requiring each of them to notify the Greffier of the States, in writing, within such period as the acquiring authority deems appropriate having regard to the circumstances of the case (which period shall in no case be less than twenty-eight days after the service of the notice) of his interest in the land and of the amount of the compensation which he is prepared to accept for such interest:
(2) Provided that no such notice shall be served on any lessee or occupier whose interest in the land it is not intended to acquire in accordance with the provisions of this Law.
(3) If any owner, lessee or occupier of the land refuses or neglects to comply with the requirements contained in the notice served on him in pursuance of paragraph (1) of this Article or if the acquiring authority considers that the amount of the compensation which he is prepared to accept is excessive, then, unless the acquiring authority is of the opinion that it is unnecessary that the interest should be acquired in accordance with the provisions of this Law, the Greffier of the States shall serve a notice on him informing him of the amount of the compensation which the acquiring authority offers to pay and notifying him that, if the offer be not accepted within eight days after the service of the notice, the interest will be acquired and compensation assessed in manner hereafter in this Law provided.
ARTICLE 4A.
POWER TO VEST LAND IN PUBLIC.
(1) Where, after the expiration of the period referred to in paragraph (3) of Article 4 of this Law, the owner, lessee or occupier of the land has not accepted the offer of the acquiring authority, the Greffier of the States shall, on giving at least eight days notice of his intention so to do to the said owner, lessee or occupier, apply to the Inferior Number of the Royal Court for an order that the land be vested in the public.
(2) The Inferior Number of the Royal Court, on an application made in pursuance of paragraph (1) of this Article, shall, if satisfied that the provisions of this Law have been complied with, order that the land be vested in the public and that a record of the title of the public be registered in the Public Registry of Contracts."
17.The condition precedent to a compulsory purchase under Article 4(1) of the Island Planning Law is that it"appears to the States that any land should be acquired by the public of the Island for any of the purposes of this Law as set out in Article 2." In Burt -v- States (1996) JLR 1, the Court of Appeal considered the closely similar language of Article 4(1) of the Housing (Jersey) Law, 1949 which reads:
"Where it appears to the States that any land should be acquired to provide for the housing of the inhabitants of the Island, it shall be lawful for the States to acquire such land by compulsory purchase …."
About that provision I said in that case in a judgment with which the other members of the Court agreed:
"It will be seen that Article 4 creates an executive discretion and provides that it is to be exercisable only in circumstances defined by the opening words of Article 4: "Where it appears to the States that any land should be acquired to provide for the housing of the inhabitants of the Island". When that condition is fulfilled, the discretion is exercisable. The discretion is conferred not, as would be more usual, on a Committee, but on the States themselves. It follows that when considering whether to exercise that discretion, the States are acting in an administrative capacity and not in a legislative capacity."
These words apply equally to Article 4(1) of the Island Planning Law.
18.Under Article 4(2) of the Compulsory Purchase Law, this Court is to make the vesting order only "if satisfied that the provisions of this Law have been complied with." The provisions of the Law include the requirements of Article 3 for a plan and a vote of money and those of Article 4 for the service of notices. Les Pas admit that these requirements have been satisfied, and on the basis of that admission the Jurats find that there has been compliance with those conditions. That is a question of fact. Counsel for all parties agree that the remaining questions in the case are all questions of law. Accordingly, the conclusions stated in the rest of this judgment have been formed by me.
19.It is a condition precedent to a compulsory purchase in this case that "it appears to the States" that land should be acquired for the purposes of the Island Planning Law. There might be thought to be some question whether the satisfaction of this condition could be debated in this case, for the condition is a provision of the Island Planning Law, while we have before us an application under the Compulsory Purchase Law, which requires us to be satisfied only that there has been compliance with "the provisions of this Law." Fortunately, the procedural history of the case relieves me of answering this conundrum. When the application came before this Court on 29 May, Les Pas asked for it to be adjourned so that they could pursue a separate application for judicial review of the States’ decision. During the following discussion in Court, counsel for the Greffier and the Board conceded that any point which would have been open to Les Pas on an application for judicial review would be open to them on the application for the vesting order. The Court refused the adjournment. Les Pas appealed, and in giving judgment in the Court of Appeal Mr Southwell said this:
"Whatever may be the true interpretation of Article 4A(2) of the 1961 Law, clearly Les Pas will be able at the hearing of the vesting order application to argue any point, which it could properly have argued on a separate judicial review application,
(1)because of the concession to which I have referred; (that was the concession made by counsel for the Crown and the Board on 29 May)
(2)because it was on that footing that on 29th May 1998 the Royal Court declined to allow the separate application to proceed;
(3)because in my judgment that is to be the basis on which the vesting order application is to be heard by the Royal Court; and
(4)because if that were not so, Les Pas would have a strong case for being allowed to pursue the separate judicial review application."
Accordingly, it is open to Les Pas to contend that it did not validly and legally ‘appear’ to the States that the disputed area should be acquired by the public for any of the purposes of the Island Development Law.
20.Proposition P.2 of 1998 was in these terms:
"The States are asked to decide whether they are of opinion -
(1)to refer to their Act dated 10 November 1992 in which, in pursuance of Article 3 of the Island Planning (Jersey) Law 1964, as amended, they approved Map No. 3-92 as the development plan for the St. Helier Waterfront area from West Park to the Dicq; their Act dated 12 December 1995 appointing the Waterfront Enterprise Board Limited as the development agency for that area; their Act dated 14 May 1996 designating twelve vergées of land, as shown on drawing No. 515/1, for leisure and recreation use; and their Act dated 22 July 1997 designating areas 1, 2 and 3, as shown on drawing No. 558/1 for use for residential purposes;
(2)to note that the publics ownership of areas of foreshore, which include areas of reclaimed land situated to the west of the Albert Pier, St. Helier, has been challenged by action before the Royal Court brought by Les Pas Holdings Limited ("Les Pas"), and that the action has the effect of frustrating the immediate development of part of the St. Helier Waterfront area in accordance with their said decisions and would be an obstacle to the partnership of public and private finance in the future redevelopment and modernisation of the developed areas; and
(a)to approve the acquisition on behalf of the public from Les Pas of all such interest (if any) as Les Pas may have in the areas of foreshore and reclaimed land situated to the west of the Albert Pier and shown coloured red on drawing No. 583/2; and to authorise the Greffier of the States to sign the said drawing on behalf of the States;
(b)to authorise the Planning and Environment Committee, in exercise of the powers conferred by Article 4 of the Island Planning (Jersey) Law 1964, as amended, to acquire the said interest (if any) on behalf of the public by compulsory purchase in accordance with the provisions of the Compulsory Purchase of Land (Procedure) (Jersey) Law 1961, as amended, for the purposes of giving effect to the development of the St. Helier Waterfront area in accordance with the said States decisions and the redevelopment and modernisation of the areas that are already developed;
(c)to authorise the Attorney General and the Greffier of the States to pass on behalf of the public any contract which it might be found necessary to pass in connexion with the acquisition of the said interest (if any);
(d)to authorise the payment or discharge of any expenses to be incurred in connexion with the acquisition of the said interest (if any) from the Planning and Environment Committee’s capital vote of credit - "Acquisition of Land - Major Reserve" (Vote No. C0904)."
21.The resolution of the States upon this proposition is recorded in the Act of 3 February, 1998. It begins:
"The States, adopting a proposition of the Policy and Resources Committee …
There then follows the exact terms of the proposition, with the following variations:
the opening words of paragraph 1, ‘to refer’, have become ‘referred’, similarly, in paragraph 2 ‘to note’, has become ‘noted’, in paragraph 2(a) ‘to approve’ has become ‘approved’, and in paragraph 2(b), paragraph 2(c) and paragraph 2(d) ‘to authorise’ has become ‘authorised’.
22.Dr Kelleher, appearing for Les Pas, took certain formal objections to the proposition and the Act. First, he submitted that a resolution for compulsory acquisition must specify its purpose in the exact terms of one of the purposes set out in Article 2 of the Island Development Law. I see no reason to interpret the Law with such rigid formalism. The purpose of Article 4 is to control the nature of the purposes for which compulsory purchase is to be allowed, not to control the language in which those purposes are to be expressed.
23.Secondly, Dr Kelleher submitted that the procedure for compulsory purchase is not available in the case of a dispute over title between the States and a private individual; and, as a development of this point, the resolution should be for the acquisition of a defined interest, not, as in this case, for the acquisition of such interest (if any) as somebody may have.
24.I see no justification for limiting in this way the ambit of Article 4(1) of the Island Development Law. The Law allows the compulsory acquisition of an undisputed and indisputable title. There seems therefore to be no reason of principle why it should not also allow the extinction of a disputed claim, subject to payment of compensation to the extent that the claim is established, in a case in which it appears to the States that this should be done for one of the permitted purposes. It does not, in my judgment, do any violence to the language of Article 4(1) to interpret it as extending to such a case.
25.Dr Kelleher also argued that it was perverse for the Crown to seek to acquire title from Les Pas while pleading in the action for declaration of title that Les Pas was incapable of holding the fief and the seigneur had no power to separate ownership of the foreshore (if he held it) from his other seigneurial rights. I see no perversity here, nor even inconsistency. In the action the Crown denies Les Pas’ title. In this application the Crown does not admit the title, but seeks to acquire Les Pas’ rights if, contrary to the Crowns contention, Les Pas have any. It is true that the Crown is making no attempt to acquire any rights from Mr Falle. This is the Crowns choice. If the result of the action is ultimately to shew that the foreshore belongs to Mr Falle, the Crown will have to bear the consequences.
26.Disposal of these objections leaves the Act of 3 February 1998 as, on its face, a good exercise of an administrative discretion. It approves the acquisition of ‘all such interest (if any) as Les Pas may have in (the disputed area]’, and states the purpose for which the acquisition is to be made: "for the purposes of giving effect to the development of the St. Helier Waterfront area in accordance with the said States decisions and the redevelopment and modernisation of the areas that are already developed." This does not mean that the Act is beyond attack in this Court, but it does mean it can be attacked only on restricted grounds, the limits of which are set by well established authority. There is no appeal to the Court from the decision of the States. The Court can interfere with that decision only if one of the following criticisms is made good:
(a)that the States came to a conclusion to which they could not reasonably have come upon proper consideration of the facts before them and of the law;
(b)that the States took into account some matter which they should not have taken into account;
(c)that the States failed to take into account some matter which they should have taken into account;
(d)that the purpose of the States, or their dominant purpose, was a purpose not permitted by the Island Planning Law.
27.Dr Kelleher submitted first that the States could not reasonably have concluded that compulsory acquisition was necessary for the purpose stated in paragraph 2(b) of the Act:
"(b)authorised the Planning and Environment Committee, in exercise of the powers conferred by Article 4 of the Island Planning (Jersey) Law 1964, as amended, to acquire the said interest (if any) on behalf of the public by compulsory purchase in accordance with the provisions of the Compulsory Purchase of Land (Procedure) (Jersey) Law 1961, as amended, for the purposes of giving effect to the development of the St. Helier Waterfront area in accordance with the said States decisions and the redevelopment and modernisation of the areas that are already developed."
Dr Kelleher argued that this purpose could have been achieved if the foreshore had been left in the hands of Les Pas, because Les Pas could, and would, have taken part in the development which the States wanted. He emphasised the word ‘necessary’, and cited the judgment of Lord Denning in Prest & Ors -v- Secretary of States for Wales & Anor [1982] 81 LGR 193, CA, in which Lord Denning makes strong reference to the importance of seeing that an acquisition is ‘necessary’ before compulsory powers are used. In that part of his judgment, as I read it, Lord Denning was making a general statement of the conditions which justify the taking of an individual’s property against his will. In a particular case, the question must always be whether the requirements of the particular statute which is said to justify the acquisition are satisfied. In this case the particular statute is the Island Planning Law, which requires that it must appear to the States that land ‘should be acquired by the public’. There may or may not be much difference between that and a requirement that the acquisition should be ‘necessary’, though Dr Kelleher was inclined to interpret ‘necessary’ in the stringent sense of ‘essential’ or ‘indispensable’; but we must concentrate upon the particular requirement of the Island Planning Law.
28.The purpose stated in paragraph 2(b) of the Act is not simply the development of the Waterfront. It is "the development of the St. Helier Waterfront area in accordance with the said States decisions and the redevelopment and modernisation of the areas that are already developed." The ‘said States decisions’ are those mentioned in paragraph 1 of the Act, which include the Act of 10 November, 1992, by which the States adopted report P123 of 1992. We have already referred to that report, but it is important to recall here some of what it said:
"1.5In considering the contents of this report and its recommendations, it is worth remembering why the Plan is necessary and what it is intended to do. The original Brief drew attention to the fact that there are major forces for change in the Waterfront area, that the area presents many challenges and opportunities, and that there is a danger of irrevocable damage occurring if things are allowed to happen by default or without concern for their relationship to other activities. Major and complex issues will only be resolved satisfactorily within the context of a co-ordinated development framework, which, while not cast in tablets of stone, is nevertheless sufficiently robust to provide certainty and guidance for the community at large and for those people who will be expected to invest in the area.
1.6Unfortunately, what has occurred at the southern face of St. Helier in the past demonstrates the results of expediency and ad hoc decision-making in periods of rapid change, and highlights the need for an integrated structure for organising future development and area enhancement.
10.1The Andrews Downie Plan lays down, as it was required to do, a framework for the future development of the Waterfront area. To do this effectively it had to consider development proposals in sufficient detail to know how they would relate to the framework and each other, and to give a "vision" as to how the Waterfront might look in the future.
10.2To that extent, therefore, the details shown in the published masterplan document are only there to illustrate the framework. It is important for the States to establish a strategic development framework within which specific proposals can be worked up into detail. Failure to establish such a framework will result in a continuation of the ad hoc process that has typified the States approach to major projects in the Waterfront area over the last 20-30 years."
The manifest intention of the States was that there should be comprehensive development of the Waterfront considered as a whole. I do not consider it was unreasonable to think that this required that there should be one person or one authority able to plan for the whole. If one part of the Waterfront remained in different ownership, and its development therefore in different control, from all the rest, comprehensive development would at the least be rendered more difficult. Some of the things intended for the Waterfront, e.g. a leisure complex and low cost housing, are unlikely to be very remunerative; others, e.g. a hotel, offer better prospects of profit. Someone planning the whole Waterfront could choose the most appropriate site for each of these activities. The owner of one part of the Waterfront would naturally wish to have the most profitable on his land.
29.It is no answer to this to say, as Dr Kelleher did, that a private owner would have to get planning permission in the ordinary way for any development, and use of his land in accordance with public interest would thereby be assured. Planning control is negative. It can prevent a landowner carrying out development which the planning authority thinks undesirable. The authority cannot insist upon development which the landowner is reluctant or unwilling to carry out.
30.Dr Kelleher complained particularly of the suggestion made in para. 31(2) of the report accompanying proposition P.2 of 1998, that: "the most expeditious development of the land is likely to take place if carried out under the aegis of the Waterfront Enterprise Board Limited as agents of the States." Nobody, he submitted, could reasonably have come to this conclusion. The position on 3 February 1998 was that Les Pas had put forward only preliminary proposals for development of the disputed area. These proposals, as was stated in the report just after the words which I have quoted, did not accord with the plans adopted by the States. I do not think that it was unreasonable to conclude that discussion and modification of rival plans, and their execution by a company with no record of development at all, was likely to be less expeditious than continuation of development by the Board.
31.Les Pas criticised the suggestion made in paragraph 2(b) of the Act, that the purpose of the acquisition included ‘the redevelopment and modernisation of the areas that are already developed’. This suggestion, they said, had never been made before. Existing development in the disputed area was all modern, and there was no reason why redevelopment should be anticipated. This criticism seems to me to be effectively answered by paragraph 32 of the report, which I quote:
"Turning to the areas already developed as shown on drawing No. 583/3, these comprise principally the roads and the Elizabeth Terminal. As stated in paragraph 10 above, work is about to start on the provision of infrastructure, part of which lies within these areas and on the realignment of La Route du Port Elizabeth which also lies within these areas. Ancillary and consequential works (consequential because the old lorry park has been reshaped and a retaining wall erected to screen it from the new development) to extend and rearrange the lorry park have been completed but other works to enhance the terminal area and provide further trailer and car parking can be expected following the construction of warehouse No. 3 within the lorry terminal. Some of these works will involve private finance".
32.Dr Kelleher made a particular criticism of this kind in relation to one portion of the disputed area. This is an area of 21,000 sq. ft. of which a lease has been granted by the States to Commodore Shipping (Jersey) Ltd. On it Commodore have erected a warehouse, as they were required to do by the lease, and the lease is for 42 years from September, 1994. Dr Kelleher submitted that the lease contained no power of the States to re-enter on the property and modernise the development. The States would therefore be unable to do that and the stated purpose of redevelopment and modernisation therefore could not apply at least to this plot of the disputed area. It appears to me that this argument is not well founded. I say this because of the terms of clause 16.3 of the lease, which provides: "…if at any time the States of Jersey shall decide that the use of the warehouse as stated in Clause 7.29 (that is for storing goods in connection with the harbour) is no longer suitable in the area of its construction then the Lessor may take possession of the whole or any part of the demised premises or the warehouse so constructed by the Lessee…". There follows a proviso that if that happens the Lessee is to be provided with suitable alternative premises. When account is taken of this clause in my judgment the lease of Commodore supports the view that redevelopment and modernisation have been contemplated and where necessary provision for them has been made.
33.In the light of all these considerations it is in my judgment impossible to say that no person giving proper attention to the facts and to the law could reasonably have concluded on 3 February 1998 that Les Pas’ interest in the disputed area should be acquired for the public for the purpose stated in clause 2(b).
34.In the opening part of paragraph 2 of the Act, the States referred to the challenge of Les Pas to the Crowns title and went on to say "that the action has the effect of frustrating the immediate development of part of the St. Helier Waterfront area in accordance with their said decisions and would be an obstacle to the partnership of public and private finance in the future redevelopment and modernisation of the developed areas". Dr Kelleher submitted that there was nothing to justify the conclusion that Les Pas’ challenge to the Crowns action either was having the effect of frustrating the immediate development or would be an obstacle to the partnership of public and private finance.
35.I take first the question of immediate development. The submission on behalf of Les Pas was that there was no evidence that any immediate development was in fact in prospect and it was therefore impossible to say that immediate development was being frustrated. If by immediate development it is meant the actual turning of the first sod, there may be some justification for this submission. However, development includes a great deal of work before the entry on the site of the bulldozers. All the planning has to be done. In a case such as the present, where it is intended that some of the development should be undertaken by private developers, negotiations have to be undertaken for the conclusion of leases to them. It seems clear from the material before us that in this sense planning is indeed going on and will continue in the immediate future. If any confirmation is needed of the difficulties placed in the way of this planning by the challenge to the Crowns title, it is supplied by the difficulty to which we have already referred which has been experienced in framing indemnities to suit the needs of the lessee of the leisure area or of the owners of houses and those supplying money to them in the housing areas.
36.As to the contention that the challenge to the Crowns title would place no obstruction in the way of partnership between the States and private investors, I hope Dr. Kelleher will forgive me for saying that the existence of such difficulty seems to me so obvious that no evidence was necessary to demonstrate it. It seems to me clear beyond argument that if development is to include the granting of rights by the States over the land to those who are actually to carry the development out, the existence of a challenge to the title of the States must at least add to the difficulty of entering into such arrangements and to the reluctance of developers to commit themselves contractually to the States. In my judgment it is impossible to say that the States could not reasonably conclude that the challenge to their title had the effect stated in the opening words of paragraph 2.
37.Dr Kelleher further submitted that the purpose of the acquisition was not in truth any of the purposes stated in Article 2 of the Island Planning Law. The true purpose, he submitted, was, first, to secure for the States the financial return obtainable by a landowner from the development of those areas and, secondly, to circumvent the proceedings commenced by the company in its action pour exhiber titre. I take the second argument first. It is not in my judgment correct to say that the effect of acquisition is to circumvent the action of Les Pas. That action will continue even if the vesting order is made. It was the purpose, it is true, of the application for compulsory acquisition to enable the development of the disputed area to continue without the very considerable delay which would result from waiting for the outcome of the action. To say this is not, in my judgment, to say that the action was being circumvented. Nor, in my judgment, is this intention of enabling the development to continue without waiting for the outcome of the action a purpose which is not within those stated in Article 2 of the Law. To this last point I shall return in a moment.
38.As regards the allegation that the true purpose of the application was to obtain for the States financial returns which otherwise would have belonged to Les Pas, I need only say that, in my judgment, there is no material whatever before us to support the suggestion that that was the true purpose or a dominant purpose of the acquisition. There is not even any evidence before us that the overall result of the Waterfront development is likely to be, or has been calculated by the States to be likely to be, the making of a profit. Some of the activities planned will be unlikely to show a profit, others offer better prospects, and the whole balance sheet of the enterprise must have been very strongly affected by imponderable items such as the anticipated effect of the development upon the tourist trade. It is, of course, true that if the right of Les Pas in the disputed area is acquired then the opportunity of making profitable use of that land will be transferred from them to the States. In my judgment, however, it was commented justly on behalf of the Crown that this will be an incidental benefit of the acquisition, and does not constitute an improper purpose for which the acquisition is being made.
39.There is, in my judgment, no reason to suppose that the purpose stated in paragraph 2(b) of the Act of 3 February 1998 was not the true purpose of the States in applying for the vesting order. Moreover I consider that this purpose, as stated in paragraph 2(b), does fall within the statutory purposes set out in Article 2 of the Jersey Planning Law. I refer particularly to paragraphs (a) and (b) of that Article: "(a) to provide for orderly planning in, and the comprehensive development of, land; (b) to ensure that land is used in a manner serving the best interests of the community". In my judgment the purpose stated in paragraph 2(b) falls under either or both of those purposes.
40.I must finally refer to the submission that the report which was put before the States in support of proposition P.2 of 1998 contained certain mis-statements which presumably influenced, and ought not to have influenced, the decision reached. The first of these mis-statements is that of paragraph 15 of the report which reads: "The legal advice which has been given to the Crown and to the Public is that this claim (that is the claim of Les Pas to title to the foreshore) is without merit". The argument put before us was that the statement that the claim of Les Pas was ‘without merit’ was at the very least a disputed statement and should not have been included in the report. What is stated in paragraph 15, however, is not that Les Pas’ claim was ‘without merit’ but that the legal advice which was being given to the Crown and to the public was that the claim was ‘without merit’. This statement was true and, in my judgment, there can be no doubt that it was relevant for the States, in being asked to agree to this compulsory acquisition, to learn what advice had been received by the Crown about the ownership of the foreshore.
41.I pass to paragraph 26, in which there is a statement that since the only major expenditure on the area to be acquired so far has been expenditure of public money, any increase in the value of the land resulting from that expenditure will be deducted from the value of the land when it is assessed by the Arbitration Board. Les Pas’ objection to this statement was that the expenditure of the States upon the land had been ‘unlawful’ and for this reason the provision of the law for reducing the amount of compensation would not apply. It is not clear to me in what sense the expenditure of the States upon the land has been ‘unlawful’, except only in the sense that, if Les Pas’ claim is justified, it has been a trespass upon land belonging to Les Pas - a trespass, it is necessary to add, performed with the full knowledge of Les Pas and without any attempt by Les Pas to bring it to a halt. Whether these circumstances did render the action of the States unlawful and if so whether unlawfulness of that kind would prevent the operation of Article 4 of the Island Planning Law are matters which Dr Kelleher did not develop in his argument.
42.Finally, there is the statement in paragraph 25 of the report that the proposed compulsory acquisition cannot be ‘unfairly prejudicial’ to Les Pas because if Les Pas has an interest it will be compensated for it and, if it does not, it cannot be prejudiced by the acquisition by the public of an interest which Les Pas does not possess. This is a complaint of a different kind. It is not a complaint of a mis-statement of fact, it is a complaint of a statement of opinion which Les Pas consider to be unjustified. It is worthwhile pausing for a moment over this, because it brings one close to a consideration which has obviously had great influence upon the course of these proceedings. In one sense the acquisition of an individuals property against his will is an injustice. Nevertheless it is an injustice which the States have decided must, in sufficiently demanding circumstances, yield to the public interest. This is the view which prevails not only in Jersey but in many of the countries of the world in which rights of property are normally respected. In this sense therefore there are circumstances in which the owner of land may have to bear an injustice because the public interest is deemed to require it. I do not consider that injustice of this sort can be taken into account by a body deciding whether a compulsory acquisition is justified, because injustice of this kind is in inevitably involved and has been authorised by the Law. If it can be shewn that there is some injustice beyond this which the particular acquisition will bring upon the owner of the land, that is another matter which may well be of relevance; but if the statutory conditions for compulsory acquisition are justified it cannot be resisted simply by the claim that to acquire a man’s property against his will is to treat him unjustly.
43.Our conclusion upon all this is that Les Pas have failed to establish any ground which would justify us in withholding the order for which the Greffier applies. We shall therefore make the vesting order.
Authorities
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