UT Neutral citation number: [2014] UKUT 0302 (LC)

UTLC Case Number: ACQ/95/2013

                         TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

COMPENSATION – limitation – vesting of land pursuant to a general vesting declaration - section 10(3), Compulsory Purchase (Vesting Declarations) Act 1981 – adjoining parcels of land vesting on different dates – whether limitation period commences only on the last of the vesting dates – whether Tribunal has power to extend time – reference brought after expiry of limitation period and to be struck out

                               IN THE MATTER OF A NOTICE OF REFERENCE

UNDER THE LAND COMPENSATION ACT 1961

BETWEEN                  HARRINGAY MEAT TRADERS LIMITED                  Claimant

                                                                           and

                                              GREATER LONDON AUTHORITY                       Acquiring                 Authority

Re: Unit L

       East Cross Centre

       Waterden Road

       Stratford

       London E15

Decision on a preliminary issue

determined on written representations

The following case is referred to in this decision:

Hillingdon LBC v ARC Ltd (No 1) [1999] Ch 139

DECISION

Introduction

1.             On 12 July 2013 the claimant, Harringay Meat Traders Limited, submitted a notice of reference to the Tribunal seeking a determination of the compensation payable to it under section 1 of the Land Compensation Act 1961 in connection with the compulsory acquisition by the London Development Agency (“the LDA”) of land and premises comprising a meat processing unit and nightclub known as Unit L, situated at the East Cross Centre, Waterden Road, Stratford, London E15.  By a response filed on 20 August 2013 the Acquiring Authority, the Greater London Authority, (the LDA having ceased to exist on 31 March 2012) asserted that because the reference had been made more than six years after the date on which the land vested in the LDA it was out of time and should be struck out.

2.             The Tribunal gave directions for the Acquiring Authority’s defence of limitation to be determined as a preliminary issue. With the agreement of the parties that issue has been considered by me on the basis of their written representations.

The facts

3.             The basic facts relevant to the preliminary issue were agreed between the parties.  From those agreed facts and from the agreed documents I take the following as the basis of my decision. 

4.             The claimant acquired the freehold interest in the premises in 1991.  They comprise a two-storey building the ground floor of which has been converted by the claimant for use as a meat processing plant while the first floor is used as a nightclub.  The site also includes a yard used for access and deliveries as well as for parking; prior to its acquisition by the LDA the yard was held by the claimant on a long lease. 

5.             The London Development Agency (Lower Lea Valley, Olympic and Legacy) Compulsory Purchase Order 2005 (“the CPO”) conferred power on the LDA to acquire land (including the claimant’s premises) in connection with the development of the Olympic Park.

6.             The schedule of interests referred to in the CPO identified three parcels of land in which the claimants were thought to have an interest.  Plots 84 and 85 comprised the freehold meat packing and nightclub premises together with the yard held by the claimant under a long lease.  A third parcel, plot 59, comprises a lengthy stretch of the public road and footways known as Waterden Road together with a bridge carrying the road over the adjoining railway line.  The claimant was identified as one of eight owners or reputed owners of plot 59. 

7.             On 14 May 2007 the LDA made a general vesting declaration by which it declared that the land described in the schedule would vest in it on 2 July 2007.  The land so described included plots 84 and 85 but not plot 59.

8.             A further general vesting declaration was made on 1 August 2008 vesting additional land, which included plot 59, in the LDA on 3 September 2008.

9.             The claimant’s reference seeks compensation for its freehold and leasehold interests in plots 84 and 85 and for what is describes as its “miscellaneous rights” in plot 59. 

10.         The LDA took possession of plots 84 and 85 on 13 July 2007.  In June 2007, shortly before the vesting date, the LDA agreed that while the premises would vest in it from 2 July 2007 it would put back the date on which it would take possession until 13 July to allow the claimant a few additional days to make ready the alternative accommodation to which it intended to move.  In a letter of 13 June 2007 from the LDA’s agents, Drivers Jonas, to the claimant’s agent, R W Stevens FRICS, the claimant’s status in the property after the vesting date was made clear, as follows:

          “In the two week period after the property has vested with the Agency, but your client has not vacated, they remain in the property at the Agency’s will and their occupation can be determined at any time without notice.”

11.         The claimant’s claim for compensation is based in part on the development value of the premises.  On 29 October 2007 the claimant made an application to the London Borough of Hackney (the local planning authority) under section 17 of the Land Compensation Act 1961 for a certificate of appropriate alternative development in respect of the premises.  The claimant sought a certificate confirming that the premises could have been developed for uses in use classes A1, A2, A3, B1, C1, C3, D1 and D2.

12.         On 2 July 2009 Hackney issued a certificate of appropriate alternative development limited to use classes B1, B2 and B8.  The claimant appealed against the certificate, as it was entitled to do under section 18 of the 1961 Act, and its appeal was the subject of a public inquiry which took place before a planning inspector in January 2011.  On 4 July 2011 the appeal was dismissed.

13.         The claimant pursued a further appeal to the High Court under section 21 of the 1961 Act.  On 27 June 2012 the Court held that all but one of the claimant’s challenges to the inspector’s decision should fail.  The court was, however, satisfied that the inspector’s reasoning for not extending the certificate to include development in classes A1, A3 and to the use of the premises as a crèche was flawed.  The Court accepted an undertaking by the Acquiring Authority designed to ensure that the claimant’s claim for compensation would be determined on that basis and therefore found it unnecessary to make any order quashing the decision. 

14.         The undertaking given by the Acquiring Authority to the Court was in the following terms:

          “In any proceedings in the Upper Tribunal for the assessment of the claimant’s claim for compensation in relation to their interests in plots 84 and 85 of the London Development Agency, (Lower Lea Valley Olympic and Legacy) Compulsory Purchase Order 2005,

(1)          The GLA will accept that planning permission would have been granted for the ground floor of the building envisaged by the certificate and the conditions/obligations thereto to comprise entrances to upper and lower floors, along with refuse and plant areas and one or more of (a) A1, (b) A3 and (c) crèche.  In accordance with the agreed position referred to in paragraph 149 of the Inspector’s Report dated 22 March 2011, those uses would be permissible subject to a condition requiring the provision of one car parking space for every 35m² of gross floor space.

(2)          The GLA will accept that any claim by the claimant pursuant to section 17(9A) of the Land Compensation Act 1961 be considered on the basis that those uses are identified in paragraph above had been included in the section 17 certificate determined by the Defendant on appeal.”

The limitation issue

15.         The claimant filed its reference at the Tribunal on 12 July 2013 and supported it with a statement of case on 30 July 2013. 

16.         The Acquiring Authority’s application is to strike-out so much of the reference as relates to plots 84 and 85.  It acknowledges that in relation to the claimant’s “miscellaneous rights” in plot 59 the reference was brought within six years of the date of vesting identified in the second general vesting declaration.  In relation to the meat processing and nightclub premises themselves, however, the claimant asserts that the last day on which a valid reference could have been made was 2 July 2013.  The Acquiring Authority’s case is that the claimant’s freehold and leasehold interests in the premises vested in the LDA on 2 July 2007 pursuant to the first general vesting declaration.  It points out that the date of vesting, and therefore the valuation date for the claimant’s interests in the premises, is not in dispute and is correctly pleaded in paragraphs 7 and 23 of the claimant’s statement of case as being 2 July 2007.

17.         The Acquiring Authority relies on section 10 of the Compulsory Purchase (Vesting Declarations) Act 1981 which identifies the limitation period applicable where land is acquired by means of a general vesting declaration.  It provides as follows:

          “(1) Where any of the land specified in a general vesting declaration has been vested in an acquiring authority by virtue of Part III of this Act, the acquiring authority shall be liable to pay the like compensation and the like interest on the compensation agreed or awarded, as they would have been required to pay if they had taken possession of the land under section 11(1) of the Compulsory Purchase Act 1965.

          (2) …

          (3) The time within which the question of disputed compensation arising out of an acquisition of an interest in land in respect of which a notice to treat is deemed to have been served by virtue of Part III of this Act may be referred to the Upper Tribunal shall be six years from the date at which the person claiming compensation, or a person under whom he derives title, first new, or could reasonably be expected to have known, of the vesting of the interest by virtue of Part III of this Act. 

          This subsection shall be construed as one with Part I of the Limitation Act 1980.”

18.         Part I of the Limitation Act 1980, which section 10(3) of the 1981 Act is to be construed “as one with” includes section 9, which provides as follows:

            “An action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date on which the course of action accrued.” 

19.         There is no doubt that the claimant was aware that the premises would vest in the LDA on 2 July 2007: notice to that effect had been given on 17 and 22 May 2007 and the claimant’s agent had negotiated a short extension of the date on which possession would be taken.  In its submissions on the preliminary issue, the claimant acknowledges, at paragraph 9, that the reference was made one week outside the period of six years from the date of vesting pursuant to the first general vesting declaration.  The claimant also asserts that the reference was made “a month inside the period of six years from the date on which possession was taken” but as that date is acknowledged to have been 13 July 2007 it appears that the reference was made on the day before the sixth anniversary of that date.

20.         The claimant’s submissions challenge the application to strike out on two alternative grounds. 

21.         First, the claimant submits that there is a clear public interest in enabling and encouraging claims for compensation to be dealt with and negotiated “in a comprehensive and holistic manner.”  Only by adopting such a comprehensive approach it is possible for the relationship between different interests and parcels of rights properly to be taken into account.  There is additionally said to be a clear public interest in the Tribunal being seized of an entire claim in a single reference.  The Acquiring Authority’s application, and its approach to the statutory time limits, is said by the claimant to be contrary to this clear public interest.  The effect of the Acquiring Authority’s approach, in cases where land belonging to the same party has been acquired in stages, is said to be to force that party to choose between making piecemeal applications or foregoing “the full statutory period allowed for negotiation of compensation in relation to those rights and interests which were acquired last in order to present a single application.”

22.         On the basis of this first submission, and on that basis alone, the claimant suggests that the proper date from which its cause of action should be taken to run is the date on which the “miscellaneous rights” in plot 59 vested in the LDA (which was 3 September 2008) and not the earlier date on which the premises themselves vested in the LDA.

23.         The claimant’s alternative submission is that if the reference was submitted outside the period of six years allowed by section 10(3) of the 1981 Act, the Tribunal should nonetheless extend time so that the reference is legitimised.  In support of an application to extend time the claimant explains that it has acted industriously in pursuing the certificate of alternative development as far as the High Court and that it has behaved reasonably at all times.  It points out that it has been disadvantaged by the prolongation of the proceedings which have not only had a serious effect on its business but have also placed a strain on its resources, not least because one effect of the compulsory acquisition of the premises has been to deprive it of a significant rental income from the night club operated on the first floor, which it has not been able to replicate at its new location.

Discussion and disposal

24.         I have no doubt that the reference was made to the Tribunal after the expiry of the relevant limitation period.

25.         The claimant has not sought to suggest that the date on which the LDA took possession of the premises is relevant to the running of time against it under section 10(3) of the 1981 Act.  It was right not to do so because the only date of significance for the purpose of setting time running is the date on which the person claiming compensation first knew or could reasonably be expected to have known of the vesting of the interest.  The interest referred to in section 10(3) is the interest in respect of which compensation is sought.  It is common ground that the freehold and leasehold interests in the premises vested in the LDA on 2 July 2007 and it is from that date that the period of six years in which a claim is required to be brought must be calculated.

26.         There is no justification in the 1981 Act for the approach suggested by the claimant of treating its entitlement to compensation as having accrued on the vesting date of the last of its interests which has been the subject of a general vesting declaration.  When different interests vest at different times it is clear that a separate cause of action exists in relation to each of them from the date of vesting relevant to that interest.  The claimant has not relied on any authority or any argument concerning the proper construction of the statutory provisions in support of its contention, which seems to me to be contrary to their clear effect.

27.         The claimant’s second line of defence, its request that the Tribunal extend time for the bringing of the reference, is equally impossible to accept for the simple reason that the Tribunal has no power to extend the statutory limitation period.  The claimant does not suggest that anything done by the LDA or by the Acquiring Authority amounted to a waiver of the six year limitation period, nor it is suggested that any estoppel applies to prevent the Acquiring Authority from relying on the expiry of that period.  In those circumstances it is immaterial that the claimant may have pursued its application for a certificate of appropriate alternative development with diligence, or that it will not be properly compensated to the full extent of its loss if the reference is not admitted after the expiry of the limitation period.  The Tribunal is without power to assist the claimant in these circumstances. 

28.         It is apparent from the claimant’s response to the Acquiring Authority’s application to strike out its claim that it had been under the misconception that it was entitled to refer the claim for compensation to the Tribunal for up to six years after the date on which the LDA took possession of the property.  In a case where possession has been taken by virtue of a general vesting declaration that is not the law.  Time runs from the date stipulated in section 10(3) of the 1981 Act, being the date on which the person claiming compensation, or a person under whom he derived title, first knew, or could reasonably be expected to have known, of the vesting of the interest.  The date on which the Acquiring Authority took physical possession of the land is irrelevant to the calculation of the period in which such a claim for compensation must be made.  The position is different where a notice to treat has been served: the cause of action for recovery of compensation under the statute is then taken to have accrued at the date of entry on to the land by the acquiring authority, and section 9(1) of the Limitation Act 1981 prescribes a limitation period of six years from that date (see Hillingdon LBC v ARC Ltd (No 1) [1999] Ch 139).  

29.         For these reasons I accede to the Acquiring Authority’s application to strike out the claimant’s statement of case so far as it relates to plots 84 and 85 as described in the schedule of interests in the CPO.

30.         The Acquiring Authority has not suggested that the reference can be summarily dismissed in so far as it relates to plot 59.  Nonetheless, the claimant’s statement of case does not identify any basis for a separate entitlement to compensation in respect of the “miscellaneous rights” which the claimant asserts in Waterden Road itself.  It is therefore appropriate that I require the claimant, within one month of this decision, to file a further statement of case explaining the basis of the claim, if any, which it now wishes to pursue in relation to plot 59.

31.         This decision is final on all matters raised by the preliminary issue other than costs.  Unless they agree to defer consideration of costs until the final disposal of the reference so far as it relates to plot 59 the parties may now make submissions on costs and a letter giving directions for the exchange of further submissions accompanies this decision.

                                                                                    Martin Rodger QC

                                                                                    10 July 2014