Case No: C3/2008/2186; C3/2008/2974

Neutral Citation Number: [2009] EWCA Civ 1064
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
(THE PRESIDENT, GEORGE BARTLETT QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 11th August 2009

Before:

LORD JUSTICE AIKENS
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Between:

	HALL	
Applicant	
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SANDWELL MBC	

Respondent	

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(DAR Transcript of 
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THE APPLICANT APPEARED IN PERSON.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

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Judgment
Lord Justice Aikens:

1.	This is a renewed application for permission to appeal following the refusal on paper by Sir Richard Buxton.

2.	Mr Hall, the applicant, seeks permission to appeal an order of Mr George Bartlett QC, who is the President of the Lands Tribunal, dated 9 January 2008.  That order concerned preliminary issues which the judge determined after a one-day hearing on 9 January 2008.  

3.	The issues concern the applicant, Mr Hall’s, right to compensation following the compulsory purchase by the respondent, Sandwell, of land owned by Mr Hall.  That land is situated at what was then known as 32 Park Lane East, Tipton, West Midlands.  There is a very long history to this matter, and I am not going to set out the full history in this judgment.  I will only give the barest outline.

4.	Mr Hall was at the relevant time in the business of selling and repairing motor cycles and parts for them and associated with them amongst other things.  Mr Hall purchased No 32 (as I will call it) in August 1989.  It is an end-of-terrace house with some land behind it, which is the land out of which the current dispute arises.  Mr Hall also leased another building nearby which he used to carry out commercial vehicle repairs.  

5.	On 10 July 1992 two planning enforcement notices were issued.  The relevant notice with which this case is concerned is what has been called Notice B in the proceedings.  Mr Hall appealed against that notice and the other notice and there was then an inspection by the person appointed by the Planning Inspectorate.  

6.	The inspector, Miss Harris, produced her result in the form of a letter which is dated 29 April 1993, to which Mr Hall has referred me in some detail this morning.  Miss Harris upheld the two enforcement notices, but she made some changes to their terms.  

7.	As a result of the changes, Notice B in the material part set out the requirements as follows:

“(i) to stop using the land for the repair of motor cycles and forklift trucks in connection with the business and the repair, manufacture and storage of any vehicle parts and (ii) to remove from the land all industrial machine tools and equipment all motor cycles and motor cycle parts”.

8.	A compulsory purchase order of the land was made in August 1996.  After an attempt at an appeal, a Notice of Confirmation was served on Mr Hall in September 1997.  On 10 November 1997 Sandwell made a general vesting declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981.  On 21 November 1997 the Notice of Execution of that declaration was served on Mr Hall.  On 28 November 1997 Mr Hall was informed that the vesting date would be 10 December 1997.

9.	In June 1998 Mr Hall was declared bankrupt.  On 2 February 1999 the respondent served a Notice of Entry upon Mr Hall under section 11 of the Compulsory Purchase Act 1965.  There was some correspondence, and a meeting between Mr Hall and Mr Bailey in May 1999.  On 23 July 1999 the Chief Planning Officer of Sandwell sent a letter to Mr Hall about various queries that he had raised, including one about the authorised use of the land at the rear of the main building of No. 32.  The letter says:

“On the balance of probabilities it is my informal opinion that the authorised use of land to the rear of the main building, including the sites of the wooden garage and workshop/store which are required to be demolished, is a mixed use comprising garden land and ancillary retail storage.”

10.	On 2 July 2002 an enforcement notice was served on the appellant requiring him to demolish the wooden garage that he had built on the land behind No 32, remove the roof and roof supports of the workshop store on the land and to remove from the land all building materials and rubble arising from compliance with the other two requirements.  

11.	On 18 July 2002 the respondent, Sandwell, served a notice on Mr Hall pursuant to section 41 of the Local Government (Miscellaneous Provisions) Act 1982 requiring him to collect any items belonging to him no later than 19 August 2002 or Sandwell would dispose of those items.  Mr Hall did not collect them and on 9 December 2002 the respondents wrote to the appellant saying that it would dispose of the items.

12.	Meanwhile on 22 September 2002, in the course of negotiations about the issue of compensation for loss of use of the land, a “without prejudice and subject to contract” letter was written by the surveyors appointed by Sandwell to surveyors appointed on behalf of Mr Hall and his trustee in bankruptcy that said what the position was of the council with regard to loss of use.  In the last paragraph of that letter it raises the issue of what ancillary retail storage would have been permitted in the rear yard.  It reports the view of Sandwell that only those items that were sold through the shop could legitimately be stored in the rear.  Mr Hall relies on that passage.

13.	A reference was made to the Lands Tribunal on 16 December 2003 on the question of compensation for the compulsory purchase of the land at No 32.  Compensation was agreed so far as the value of the land, severance and injurious effect on accommodation works were concerned.  The issue outstanding was the value of the business loss.  As I have said, values for Mr Hall and the respondents were in negotiation and figures were actually agreed on two alternative bases: temporary loss of profits, for which the figure was agreed at £6,000; and total extinguishment of the business, for which a figure of £20,000 was agreed.  However, somewhat late in the day the respondents raised the point that, because of the enforcement notice of 1992 as amended in 1993 relating to the use of the land (which, they said, forbade the use of the land for repair of motor cycles and forklift trucks in connection with the business and forbade the repair, manufacture and storage of any vehicle parts) then any use of the land for such purposes was unlawful.  Therefore, it was argued by Sandwell, the value of such use must be left out of account in determining the compensation for loss of business use of the land by reason of Rule 4 of section 5 of the Land Compensation Act 1961.  Therefore, Sandwell said, Mr Hall was entitled to nothing for the loss of profits, whether temporary or permanent, from his use of the land.

14.	Furthermore, Sandwell argued, with regard to the value of any chattels on the land, no compensation was payable in respect of them because the council dealt with those items in accordance with their powers under section 41 of the 1982 Act.

15.	The President of the Lands Tribunal therefore had to deal with three preliminary issues at the hearing on 9 January, as set out in paragraph 8 of his judgment.  At the hearing he had what was called an Agreed Statement of Facts, although it was not in fact agreed by Mr Hall for one reason or another.  Mr Hall also points out that Sandwell had failed to produce various documents in advance of the hearing and that he had not appreciated that he was supposed to have produced an outline argument.  The President had an outline argument from Mr Park, who was counsel representing Sandwell at that hearing.

16.	The hearing lasted from about 12 noon until about 3.15pm, with an hour’s break for lunch.  The President heard argument from Mr Park, and then he heard briefly from Mr Hall.  Mr Hall had, I believe, put in a witness statement that he prepared in 2006.  

17.	In the grounds of his appeal Mr Hall has said that there were some procedural irregularities in the hearing of 9 January 2008.  I have considered these issues carefully.  I cannot accept that any of what he says are irregularities would have had any bearing on the result of the preliminary issues.  These concerned, largely, questions of law and there were for the purposes of those issues no particular facts that were in dispute.  At least no material facts were in dispute.

18.	I am therefore not satisfied that there is any arguable ground of appeal based on irregularities at that hearing.  There is no argument, in my view, that Mr Hall did not get a fair trial in terms of Article 6 of the ECHR.  

19.	The President reserved his judgment, which was given in writing on 14 January 2008.  He answered the preliminary issues as follows.  Issue No 1: Mr Hall’s commercial use of the land that had been compulsorily acquired by the respondents was not lawful.  Issue No 2: the claim for disturbance was excluded by Rule 4.  Issue No 3: Mr Hall did not have a claim in respect of any commercial chattels on the land but he might possibly have a valid claim for the value of his own personal chattels which were on the land when possession was taken by Sandwell.

20.	The President said, in paragraph 20 of his judgment, that the lawfulness of the use of the land must be judged in the light of the requirements of the enforcement notices that had been issued in 1992 and had been the subject of the appeal in 1993.  I agree with that conclusion.  Mr Hall has said, in his helpful grounds of appeal and outline argument and in oral argument this morning, that the judge did not take into account the ancillary retail use of the yard and retail goods stored there and also the goods sold off when the respondents dealt with Mr Hall for extinguishment of business in 1998 and 1999.  Mr Hall relies, in particular, on paragraphs 18 and 24 of the inspector’s letter.  He also relies on the two letters to which I have referred the 1999 and 2002 letter.  

21.	It is clear in my view that Mr Hall raised these matters before the judge.  That is clear from paragraphs 20 to 24 of his judgment.  As he said, rightly in my view, the validity of the enforcement notices could not be impugned: see section 285 subsection 1 of the 1990 Act.  The issue was therefore, as a matter of construction of the enforcement notices, what did it require Mr Hall to do and what did it prevent him from doing?  That is entirely a question of construction.  Mr Hall therefore has to persuade me that there is an arguable case that the judge’s construction set out at paragraph 21 of the judgment is wrong.  

22.	I am not convinced that there is such an arguable case.  I have studied very carefully the terms of the amended enforcement notice and I have taken into account the points that Mr Hall has made on the terms of the letter of the planning inspector of 29 April 1993 and the other correspondence which I have mentioned.  The judge deals with all these in some considerable detail, including setting out parts of the inspector’s letter at paragraphs 21 to 24 of the judgment.  They are in my view entirely persuasive.  I therefore must reject that ground of potential appeal.

23.	Mr Hall also in writing made some points about delay.  He did not press those, particularly in oral argument today , but it seems to me that they are entirely misconceived.  These proceedings were concerned with what Mr Hall was entitled to for compensation for the loss of the use of his land which he had used on a commercial basis.  It has nothing to do with the sequence of events leading up to taking of possession of the land itself.  

24.	For the reasons I have given, the proposed ground of appeal based on the First Protocol of the ECHR Article 1 is also not arguable.  

25.	Accordingly, for those reasons, I must dismiss this application.

Order: Application refused