THE ESTATE OF REGINALD HODSON v ROCHFORD DISTRICT COUNCIL ACQ/467/2007

UPPER TRIBUNAL
LANDS CHAMBER
ACQ/467/2007Case No ACQ/467/2007
Between
THE ESTATE OF REGINALD HODSONApplicantROCHFORD DISTRICT COUNCILRespondent
Before
The PresidentSimon Pickles (instructed by ELS & Cole) for ClaimantMartin Edwards (instructed by Head of Legal Services, Rochford District Council) for Acquiring AuthorityVenue Procession House, 110 New Bridge Street, London EC4V 6JLDate 11 June 2008Hearing 23 May 2008Property: 35, 37, 39 West Street, Rochford, EssexCatchwords: COMPENSATION – compulsory purchase – preliminary issue – whether claim statute-barred – when claimant first knew of vesting – held not statute-barred – Compulsory Purchase (Vesting Declarations) Act 1981 s 19(3)
[1]The preliminary issue which, on 16 January 2008, I ordered should be determined is whether the claim in this reference is statute-barred. The claim is for compensation in respect of the compulsory purchase of three houses, numbers 35, 37 and 39 West Street, Rochford, Essex under a compulsory purchase order that was made by the acquiring authority on 20 April 2000 and confirmed in June 2001. The claim is made by the estate of Reginald Hodson, who owned the properties. Mr Hodson died aged 97 on 15 August 2005. A General Vesting Declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 was made in relation to the properties on 20 July 2001, and the properties vested in the acquiring authority on 24 August 2001. Notice of reference to this Tribunal was given on 19 October 2007.[2]Under section 7 of the 1981 Act, the provisions of the Land Compensation Act 1961 and the Compulsory Purchase Act 1965 apply as if notice to treat had been served on the date when the general vesting declaration was executed. Section 1 of the 1961 Act and section 6 of the 1965 Act provide for any question of disputed compensation to be referred to the Lands Tribunal. Section 19(3) of the 1981 Act provides:
“The time within which a 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 the Act may be referred to the Lands Tribunal shall be six years from the date at which the person claiming compensation, or a person under whom he derives title, first knew, or could reasonably have been expected to have known, of the vesting of the interest by virtue of Part III of this Act.”
[3]The question in the present case, therefore, is whether Mr Hodson first knew or could reasonably have been expected to know of the vesting of the interest before 19 October 2001. It is agreed that on 24 July 2001 the council wrote a letter to Mr Hodson enclosing the general vesting declaration and notice specifying the land and stating the effect of the general vesting declaration and that these were served on Mr Hodson. There is a letter on the council’s file dated 30 August 2001 addressed to Mr Hodson and referring to the subject properties confirming that “by virtue of a vesting deed dated 20 July 2001, the above properties formally vested in the Council on 24 August 2001.” For the council Mr Martin Edwards submitted that by virtue of the letter of 24 July 2001 and its enclosures and the letter of 30 August 2001 or either of these Mr Hodson knew of the vesting. Thus he knew of the vesting either on 24 July 2001, when the letter of that date and its enclosures were served on him, or when he received the letter of 30 August 2001. Accordingly, he said, the claim is statute-barred.[4]For the claimants Mr Simon Pickles submitted that the letter of 24 July 2001 provided Mr Hodson with a last chance to dispute the proposed vesting, but it did not inform him that the vesting had taken place; and that the evidence did not show that the letter of 30 August 2001 was communicated to Mr Hodson. Although it was also part of the case for the claimants that Mr Hodson was not in a state of mind to have understood the letters of 24 July and 30 August 2001, and evidence was called in relation to this matter, Mr Pickles accepted, in the light of the evidence, that there was nothing to suggest that he was not capable of 2 understanding them. Mr Pickles submitted, however, that correspondence between the council and the claimants’ solicitors between 2 March 2006 and reference to the Tribunal showed that the council was exhibiting a willingness to negotiate a referable claim without regard to the limitation period for the time being. Thus, he said, was a waiver of the limitation point or alternatively it constituted an estoppel by convention. Finally, Mr Pickles submitted in the alternative that for the claim to be treated as statute-barred would constitute an unjustifiable and disproportionate interference with the claimants’ right to the peaceful enjoyment of their possessions pursuant to Article 1 of the First Protocol to the European Convention on Human Rights.[5]Evidence was given on behalf of the council by Albert John Bugeja, Head of Legal Services at the council; and on behalf of the claimant by Eric Leslie Skinner, partner in the firm of ELS & Cole solicitors (formerly ELS Solicitors); Michael Toplis, probate assistant at that firm; and Geoffrey James Sandford, who knew Mr Hodson personally. Mr Bugeja gave evidence about the making of the CPO and the procedural steps that followed it, and he produced a bundle of correspondence and other documents covering the period 20 April 2000, when the CPO was made, to 23 January 2008. Mr Skinner referred to the instructions that he had received in August 2004 from Mr Hodson in relation to the claim, Mr Hodson’s frailty and eccentricity and the work that was done in administering the estate. When he visited Mr Hodson’s house he was amazed with what he found, including thousands upon thousands of pieces of paper. Mr Toplis said that he spent a considerable amount of time painstakingly going through all these papers and putting them into boxes. In one of these boxes Mr Skinner found the letter of 24 July 2001 and the GVD. The letter of 30 August 2001 was not found, he said, even though he thought that they had looked at every piece of relevant correspondence. The documents related principally to Mr Hodson’s properties, of which he owned a number, and disputes with the Inland Revenue. Mr Sandford said that he knew Mr Hodson for 22 years and that he had spent about 120 hours assisting Mr Toplis with the process of going through the papers in the house.[6]The question that arises under section 10(3) of the 1981 Act, as I have said, is whether Mr Hodson knew or could reasonably have been expected to know of the vesting before 19 October 2001. The letter of 24 July 2001 was in these terms. “Further to my last letter to you dated 14 June 2001, I now serve on you a copy of the General Vesting Declaration and a Notice specifying land and stating the effect of the declaration. I would recommend that you read both documents carefully so that your interest may be fully catered for. Please note especially that the council will be entitled to take possession of the buildings twenty eight days after the date on the declaration and this may be an opportune moment to settle the compensation due to you for the acquisition of the buildings. I must state that I am somewhat surprised that you have not declared an interest in the property in the light of the council’s decision to follow the General Vesting Declaration procedure. While we are aware of your interest, your indifference to notices is self defeating in that this represents your last real chance to put forward any pertinent matters that we may be unaware of. It is our intention to be guided by the District Valuer on the fair value of the buildings. If you disagree with his professional opinion, you are entitled to present a contrary 3 valuation. If there is still no agreement, the matter will be referred to the Lands Tribunal for determination. I must advise however that should the Tribunal find for the Council, you will bear the costs of the proceedings, which we will seek to recover in full. I shall be in touch shortly to arrange access for the District Valuer.”[7]The GVD, which specified in a schedule the subject land, declared that:
“The land described in Part 1 of the Schedule hereto being the whole of the land authorised to be acquired and more particularly delineated on the plan annexed hereto, together with the right to enter upon and take possession of the land should vest in the Authority as from the end of the period of 28 days or longer from the date on which the service of notices required by Section 6 of the Act is completed.”
[8]The notice specifying the land and stating the effect of the general vesting declaration was in the form prescribed by the Compulsory Purchase of Land (Vesting Declarations) Regulations 1999. It included the following:
“NOTICE IS HEREBY GIVEN that Rochford District Council (‘the Authority’) on 20 July 2001 made a general vesting declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 (‘the Act’) vesting the land described in the Schedule to the notice (‘the land’) in themselves as from the end of the period of 28 days from the date on which service of the notices required by section 6 of the Act is completed. The Authority will in due course tell you the date on which the service of the notices was completed.”
Section 6 of the Act requires service of notice on the occupier of the property to which the GVD relates.[9]It is clear from the GVD that its effect was not to vest the property in the council on a specific date. It provided for vesting 28 days or longer after service of the section 6 notices. It was therefore not possible for the recipient of the notice to know when his interest would vest in the council. The vesting was dependent on the service of the section 6 notices. In these circumstances, in my judgment, Mr Hodson could not be said to have known of the vesting by virtue of having received the GVD and the accompanying notice.[10]The letter of 30 August 2001 was in these terms:
“Further to my last letter dated 24 July 2001, I write to confirm that by virtue of a vesting deed dated 20 July 2001, the above properties formally vested in the Council on 24 August 2001. As of the date, the Council has taken possession of the properties and will now exercise proprietary rights as necessary, including changing the locks and arranging for necessary works to be carried out. 4 The purchase price is the figure recommended by the District Valuer and as I have not heard from you to the contrary, I can only conclude that this method of arriving at the fair value is acceptable to you. We will contact you in due course with details of payment.”
[11]There can be no doubt that if Mr Hodson received the letter of 30 August 2001 he knew of the vesting for the purposes of section 10(3). There is, however, nothing to show that the letter was either sent or received. The existence of a copy on the council’s file is insufficient in itself to show on the balance of probabilities that the letter was sent, and this is the only evidence that is advanced by the council. There is no certificate of service and no evidence of posting. There is no other documentary or other evidence about the vesting in relation to the period up to 19 October 2001. In these circumstances it is clear, in my judgment, that the council have failed to establish that Mr Hodson knew or ought to have known by that date of the vesting of the property and accordingly that the preliminary issue must be decided in the claimants’ favour.[12]In the light of this conclusion it is unnecessary for me to set out the evidence and contentions in relation to the waiver/estoppel point and the human rights argument. I will merely say that the correspondence discloses in my view nothing whatever to suggest that the council, either before or after the end of the limitation period, evinced an intention not to rely on its limitation rights; and that I can see no basis for the argument that its reliance on limitation is made unlawful by the Human Rights Act.[13]I determine, therefore, that the claim is not statute-barred. The parties are now invited to make submissions on costs, and a letter referring to this accompanies this decision, which will become final when the question of costs is determined. Directions for the further conduct of the reference will be given in due course. Dated 2 June 2008 George Bartlett QC, President 5 Addendum on costs[14]I have now received submissions on costs. The claimants ask for their costs. The acquiring authority resist this on the basis that the preliminary issue was a serious matter to be tried and that the council were obliged to raise it in order to protect public money. Alternatively they say that the claimants should have only 25% of their costs as they advanced four arguments but succeeded only on one.[15]I can see no reason why costs should not follow the event. The fact that other arguments were advanced by the claimants which did not, or would not, have succeeded if they had not been successful on the point on which they won is insufficient in my view to justify a reduction in their costs. Where an acquiring authority take a limitation point with the object of depriving a person whose land has been compulsory acquired of the compensation to which he would otherwise be entitled, it is not unreasonable, in my view, for a claimant to advance all arguments that might seem to be open to him in his resistance. Dated 11 June 2008 George Bartlett QC, President 6