EXECUTOR OF THE ESTATE OF W R WOOLHOUSE DEC’D v BARNSLEY METROPOLITAN BOROUGH COUNCIL ACQ/7/2004

UPPER TRIBUNAL
LANDS CHAMBER
ACQ/7/2004Case No ACQ/7/2004
Between
EXECUTOR OF THE ESTATE OF W R WOOLHOUSE DEC’DApplicantBARNSLEY METROPOLITAN BOROUGH COUNCILRespondent
Before
The PresidentMartin Carter (instructed by A C Frosdick, Borough Secretary, Barnsley Metropolitan Borough Council) for Acquiring AuthorityVenue Procession House, 55 Ludgate Hill, London, EC4M 7JWHearing 10 January 2005Property: Burton Bank and Quarry, off Wakefield Road, BarnsleyCatchwords: COMPENSATION – compulsory purchase – preliminary issue – notice of reference more than 6 years after entry – held claim statute-barred
[1]The issue that was ordered to be determined as a preliminary issue in this reference is whether the claim is statute-barred under section 9(1) of the Limitation Act 1980. The order required the parties to submit skeleton arguments on this issue, the acquiring authority by 14 November 2004, the claimant within 14 days thereafter. The acquiring authority complied with this order on 12 November 2004. The claimant provided no skeleton argument and did not appear at the hearing. On the afternoon of Friday 7 January 2005, with the hearing due to take place on the following Monday morning, the claimants' solicitors faxed a letter to the Tribunal asking for an adjournment. This fax was not brought to my attention until after the hearing had been completed. As I explain below, if it had been brought to my attention, I would not have adjourned the hearing.[2]The claim is for compensation for the compulsory acquisition under the Metropolitan Borough of Barnsley (Burton Bank, Barnsley) (Land Reclamation) Compulsory Purchase Order 1994 of land at Burton Bank, Barnsley. The claimants' notice of reference was received by the Tribunal on 6 January 2004, although the notice of reference form was dated 26 September 2003. The acquiring authority’s case is that, on the authority of Hillingdon London Borough Council v ARC Ltd [1999] Ch 139, reference to the Tribunal was an action to recover a sum of money, that the claim was therefore subject to the six year limitation period in section 9(1) of the 1980 Act, and that the cause of action arose when entry was made on the subject land. They say that possession was taken between 8 February 1996 and 9 October 1996 and that the claim is accordingly statute-barred. Finally they submit that, although the limitation period is capable of being waived or the subject of an estoppel, the onus is on the claimant to establish any such waiver or estoppel, and the claimant has advanced no contention on this calling for a response from them.[3]As the factual basis for determining the date of entry the acquiring authority rely on two letters written to Mr W R Woolhouse by Mr P M Handley, the council’s Chief Estates Officer on 8 February 1996 and 9 October 1996. In the first letter Mr Handley referred to the confirmed CPO and the authority’s right to take possession and said that it was unlikely that possession would be taken “prior to the end of this month”. The letter went on to say that the authority would have no objection to Mr Woolhouse removing stone materials from the land until 23 February 1996 or to the storage of such materials on the land up to 15 June 1996. The letter of 9 October 1996 asked Mr Woolhouse to submit a claim for compensation as soon as possible as “under the provisions of the confirmed Order the Borough Council has taken possession of this land”. Mr Martin Carter for the acquiring authority submits that the inference to be drawn from these two letters is that entry on the subject land was made some time between the dates on which they were written and in any case before 9 October 1996. I accept this. The claimant has not advanced any case on waiver or estoppel, and accordingly I am satisfied that the claim is statute-barred.[4]In their letter of 7 January 2005 the claimants' solicitors said that they had been trying to contact the claimant, but without success, and they asked that the hearing be adjourned. They went on to say: 2 “It appears to us that as previously indicated, there is only one remaining issue and that is the value of an amount of stone which was taken from the acquired property. It is our understanding that Mr Woolhouse’s valuer has agreed the value of the land itself.”[5]I invited the authority to comment on this letter, and in their response they sent a copy of a letter dated 20 December 2004 from the Borough Secretary to the claimants' solicitors. The letter included the following:
“I refer to the last paragraph of your faxed letter to the Lands Tribunal dated 15th November 2004. I have obtained my client’s instructions upon the contents of the last paragraph of this faxed letter which are set out hereunder. With regard to the issue of the stone, this was first raised in April 1999. Various enquiries and discussions took place which it is alleged by the Acquiring Authority demonstrated that the material in question was imported on to the site that is the subject of the above numbered reference in a contaminated state. The relevant stone was subject to analysis and it was recommended that the said stone be disposed of at a licensed tip. In view of the above mentioned circumstances the Acquiring Authority considers that there is no scope to re-open discussions in relation to the stone to which I have previously referred.”
[6]There is, in the light of this, no reason to believe that an adjournment would have enabled agreement to be reached between the parties, and there would have been no justification for preventing the authority from advancing their case on limitation.[7]My conclusion on the issue of limitation disposes of the reference, which must accordingly be dismissed.[8]Mr Carter submitted that the authority should have their costs of the reference as the claimant had not sought to resist their contentions on limitation by advancing either waiver or estoppel. I accept this. The claimant must pay the acquiring authority’s costs of the reference, such costs if not agreed to be the subject of a detailed assessment by the Registrar on the standard basis. 20 January 2005 George Bartlett QC, President 3