SOVMOTS INVESTMENTS LIMITED
(APPELLANTS)
v
SECRETARY OF STATE FOR THE ENVIRONMENT AND OTHERS
(RESPONDENTS)
BROMPTON SECURITIES LIMITED
(APPELLANTS)
v
SECRETARY OF STATE FOR THE ENVIRONMENT AND OTHERS
(RESPONDENTS)
[Conjoined Appeals]
Lord Wilberforce
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Russell of Killowen
Lord Keith of Kinkel
Lord Wilberforce
my lords,
In these conjoined appeals, the appellants (1) Sovmots Investments Ltd.
(“Sovmots “) and (2) Brompton Securities Ltd. (” Brompton “) are seeking
to have quashed a compulsory purchase order made by the London Borough
of Camden (“Camden”) and confirmed by the Secretary of State for the
Environment. At first instance, Forbes J., on 1st August 1975, quashed the
order, but his decision was reversed by the Court of Appeal on 21st July 1976.
The full title of the order is the London Borough of Camden (Centre Point
Residential Accommodation) Compulsory Purchase Order 1972. It was made
on 12th September 1972, under Part V of the Housing Act 1957, in particular
under sections 96 and 97.
Centre Point is a remarkable, elaborate and expensive complex of buildings
at St. Giles Circus, London, W.C. The site freeholders are the Greater
London Council, and Sovmots are lessees for 150 years from 29th September
1960. The present litigation, and the difficulties in its resolution, arise
directly out of the unique character of this development.
Centre Point was completed in the winter of 1966/7, but with minor
exceptions, which at the date of the order did not include the residential
section, has never been occupied. There is a considerable housing shortage
in Camden, so it is not surprising that in 1972 the Council decided compul-
sorily to acquire the residential section in order to provide housing
accommodation for people on its housing list.
Centre Point consist of three main parts. First, on the west side, there is
a very high tower block meant for office use. Second, there is a low Bridge
Block running west to east, joining the other two parts: this is intended for
shops and showrooms. Third, on the east side, running from north to south,
there is the Earnshaw Wing. This is of unusual construction. The lower
part consists of a basement car park and four floors intended for shops,
showrooms and offices. This part has a flat roof, called a ” podium “. From
the podium there rise columns, or stilts, architecturally keyed in with the lower
part, which support a massive block of distinct architectural design containing
36 two-storey maisonettes in six floors. Each maisonette is reached from a
corridor running from south to north through the middle of the block on
alternate floors. Access to the upper floor of each maisonette is by an
internal staircase. It is these maisonettes which are the subject of the
compulsory purchase order.
The structure of the Earnshaw Wing and of the maisonette block is
elaborate and can only be adequately described with the help of plans and
photographs. These were available to your Lordships. Your Lordships
2
found it useful to visit the site and inspect it in some detail. The following
features are particularly relevant for the purposes of these appeals. Access
to the maisonette block is provided by lifts and staircases. There are two
passenger lifts at the south end from an entrance hall on the ground floor
of the Earnshaw Wing: these serve only the maisonettes via the corridors.
There is also a goods lift from the ground floor to the podium which also
serves the shops. There is a staircase alongside the passenger lifts: this also
provides access for showroom and office floors in the lower part. There is
another staircase at the north end of the Earnshaw Wing: this is in two parts.
The upper part provides exits, really for emergency use, at alternate floor
levels from the masonettes’ corridors. At the other (alternate) levels it is
possible to escape from the maisonettes on to the staircase through hatches.
Below podium level, this staircase provides access to the floors from
mezzanine level downwards and emerges on to the street. There is a con-
nection between the two parts of this staircase by a one-way door which
allows access from the maisonettes, but is supposed to deny access to them.
Also at the north end of the maisonettes there is a small rubbish chute to
which the maisonettes have access: this terminates in a receptacle in an
enclosed chamber on the podium. This receptacle is said to be capable of
being wheeled across the podium to the goods lift at the south end.
There are common services available for the Earnshaw block which are to
a great extent combined and not capable of separation as between the upper
and lower part. Electricity is controlled from an intake room in the basement
where there are five switch-geared supplies, four for the maisonettes, the fifth
for the general services provided in the wing, viz., lifts, ventilation, lighting
and power to stairs, corridors, car parks and showroom and shops areas.
Water is supplied to the maisonettes by extensions of the mains supplying
the lower part of the building. Soil and surface water from the maisonettes
runs from drains in the block into drains for the lower part and thence to
inspection chambers below the block. Overflow pipes from the maisonettes
discharge on to the podium roof. It is obvious, on examination, and it was
so found by the inspector, that the Earnshaw Wing, and indeed the whole of
Centre Point, was designed as one complex unit suitable for a single office
user with a need of showroom space. The maisonettes seem to have been an
after-thought, and indeed an embarrassment, but they were ” part of the
” planning permision package “. The idea was that they should be pieds-a-
terre for the offices’ directors and executives.
This combination of units turned out difficult, indeed so far impossible,
to let as a whole. So on 23rd November 1973, i.e., after the making of the
order, Sovmots entered into an underlease of the maisonettes to Brompton.
This underlease was for 45 years from 29th September 1973. It included,
in addition to the maisonettes themselves, the southern staircase and entrance
hall, also the northern staircase above podium level. As would be expected
it contained a number of detailed provisions, covenants and reservations.
In particular it contained a grant of easements, or rights, as to the passage of
water, soil, electricity and gas, as to the use of the goods lift, and as to the
use of the northern staircase below podium level, with corresponding reserva-
tions for the benefit of Sovmots and their tenants in the rest of the block.
Brompton have in turn sublet maisonettes to tenants at high rents.
The appropriate notices and advertisements, having been given and made,
Sovmots and Brompton objected to the compulsory purchase order and a pub-
lic inquiry was ordered by the Secretary of State. This was held by Mr. Peter
Boydell, Q.C., as inspector, assisted by Mr. W. J. N. Oswald, F.R.I.C.S. The
inspector produced his report on 28th March 1974, a document of admirable
clarity and comprehensiveness, and it dealt fully and fairly with the objections,
in fact and in law. The recommendation was that the order be confirmed
with certain modifications, and this was accepted by the Secretary of State.
The material modification related to the description of the property. I set out
in parallel the original description as it appeared in the order and the
modified description as confirmed. There were corresponding differences
in the maps.
3
|
Original Order 36 Residential maisonettes on the 3rd, 4th, 5th, 6th, 7th and 8th floors forming part of and adjacent to the east side of the property known as Centre Point, London, W.C.l. Together with such parts of the building which are necessary for access thereto and the maintenance thereof. |
Order as confirmed 36 Residential maisonettes on the 3rd, 4th, 5th, 6th, 7th and 8th floors of the part of and adjacent to the east side of the property known as Centre Point, London, W.C.I., together with, (i) the corridors giving access to the said maisonettes, (ii) the entrance hall, staircase and lifts at the south end and (iii) the staircase above podium level at the north end. |
There was an argument based upon the original terms of this description and
its modification by the Secretary of State to the effect that the first was
uncertain and the second ultra vires. However I take the view, on a fair
reading, that the original order contemplated acquisition of certain—then
unspecified—physical parts, which parts were then specified under the
numbering (i)—(iii) in the confirming order. Neither description, in my
view, contemplated in terms the acquisition of rights.
We are, in these appeals, not concerned in any way with the financial or
sociological merits of the proposed compulsory acquisition. On the other
hand, the courts have power on legal grounds to quash a compulsory pur-
chase order—indeed they must do so if a proper case is made out.
Three reasons were put forward by Sovmots why the order should be
quashed, namely:
1.. That a local authority cannot be authorised by the Minister under
the Housing Act 1957 to acquire compulsorily a horizontally-divided
part of a building (or ” stratum “) excluding the underlying soil on
which the building stands.
2.. That a local authority cannot be authorised by the Minister not
only to acquire a corporeal hereditament but also to compel the grant
for the benefit of such hereditament of new rights over lands or buildings
not authorised to be acquired.
3. That a local authority cannot be authorised by a compulsory
purchase order to compel the grant of such new rights if there is no
description or mention of them in such order.
The first of these reasons was rejected both by Forbes J. and by the Court
of Appeal and was ultimately not pursued in this House. Reasons (2) and
(3) were accepted by Forbes J. but rejected by the Court of Appeal. Two
further reasons for quashing the order were given on behalf of Brompton,
one of which related to the description of the property I have already referred
to. The second related to an agreement between Camden and the Greater
London Council and in the view which I take of the appeals does not arise
for decision.
I come therefore to deal with the second objection put forward by Sovmots.
The relevance of this objection to the validity of the order arises under the
Acquisition of Land (Authorisation Procedure) Act 1946 which in turn is
incorporated by the Housing Act 1957, section 97 and Schedule 7. Under
paragraph 15 of Schedule 1 to the Act of 1946 an order may be quashed by
the High Court (inter alia) if the court is satisfied that the authorisation
granted by the compulsory purchase order is not empowered to be granted
under the Act, or under the Housing Act 1957.
It is common ground between the appellants and the respondents that if
Camden cannot under the compulsory purchase order acquire the ancillary
rights over the appellants’ property which are necessary if the maisonettes,
when severed in ownership from the rest of Centre Point, are to be used as
dwellings, then the Secretary of State could not confirm the order and it must
be quashed. So the question is whether these ancillary rights can be acquired.
4
I start with the proposition that an acquiring authority cannot, under a
mere power to acquire land, and in the absence of a special provision in
the relevant ” special” or general Act, require an owner of land to grant to
it rights over his land which did not exist at the time of the purported
acquisition. The proposition is, I think, correctly stated in Halsbury’s Laws
of England, 4th Ed., Vol. 8, paragraph 56, as follows:
” There is no power to create and take an interest in land such as a
” lease without acquiring the freehold or other interests unless specific
” power to do so is given in the special Act; nor is there power to
” create and purchase an easement without purchasing the land unless
” special provision is made or in either case the owner agrees.”
This proposition simply states a consequence of the process of compulsory
acquisition. Parliament can authorise an authority to take the land of
private persons; but if it wishes to confer on an anthority power to require
an owner to create, in its favour, limited interests or rights, less than the
owner’s interest (for which of course less compensation might be paid) it
must do so in specific terms. Parliament has done this in certain cases
(for example in the Water Act 1948, section 11) and it is argued that, by
implication, it has done so in the Housing Act 1957. I shall deal with that
argument. But without specific power this cannot be done.
The main argument before the inspector and in the courts below was that
in this case and under the compulsory purchase order as made no specific
power to require the creation of ancillary rights was necessary because these
would pass to the acquiring authority under either, or both, of the first rule
in Wheeldon v. Burrows (1879) 12 Ch.D.31 (“the Rule”) or of section 62
of the Law of Property Act 1925. Under the Rule (I apologise for the
reminder but the expression of the rule is important) ” on the grant by the
” owner of a tenement or part of that tenement as it is then used and enjoyed,
” there will pass to the grantee all those continuous and apparent easements
” (by which, of course, I mean quasi easements), or, in other words all those
” easements which are necessary to the reasonable enjoyment of the pro-
” perty granted, and which have been and are at the time of the grant used
” by the owners of the entirety for the benefit of the part granted ” (I.c. p.
49, per Thesiger L.J., my emphasis). Under section 62 a conveyance of land
operates to convey with the land all ways, watercourses, liberties, privileges,
easements, rights, and advantages whatsoever, appertaining or reputed to
appertain to the land, or any part thereof, or, at the time of conveyance,
demised, occupied or enjoyed with, or reputed or known as part or parcel
or appurtenant to the land or any part thereof.
My Lords, there are very comprehensive expressions here, but it does not
take much analysis to see that they have no relevance to the situation under
consideration.
The Rule is a rule of intention, based on the proposition that a man may
not derogate from his grant. He cannot grant or agree to grant land and at
the same time deny to his grantee what is at the time of the grant obviously
necessary for its reasonable enjoyment. To apply this Rule to a case where
a public authority is taking from an owner his land without his will is to
stand the Rule on its head: it means substituting for the intention of a
reasonable voluntary grantor the unilateral opposed, intention of the acquirer.
Moreover, and this point is revelant to a later argument, the words I have
underlined show that for the Rule to apply there must be actual, and apparent,
use and enjoyment at the time of the grant. But no such use or enjoyment
had, at Centre Point, taken place at all.
Equally, section 62 does not fit this case. The reason is that when land is
under one ownership one cannot speak in any intelligible sense of rights,
or priviliges, or easements being exercised over one part for the benefit of
another. Whatever the owner does, he does as owner and, until a separation
occurs, of ownership or at least of occupation, the condition for the existence
of rights, etc., does not exist—see Bolton v. Bolton (1879) 11 Ch.D. 969,
5
970 per Fry J. and Long v. Gowlett [1923] 2 Ch. 177, 189, 198, in my opinion
a correct decision.
A separation of ownership, in a case like the present, will arise on con-
veyance of one of the parts (e.g. the maisonettes), but this separation
cannot be projected back to the stage of the cumpulsory purchase order so
as, by anticipation to bring into existence rights not existing in fact.
My Lords, I have thought it necessary to deal with these arguments in
spite of their virtual abandonment in this House, for two reasons. First
they were the foundation of the inspector’s recommendation, and some of
his findings as I shall show, are clearly based on his view as to the validity
of the arguments. And, secondly, I have little doubt that the contentions
which were presented to your Lordships are, in reality, but a thinly disguised
or gently refurbished version of them. To see this it is only necessary to
quote two passages from the judgment of the Court of Appeal, ([1976] 3
W.L.R. 597) which the respondents seek to uphold:
-
-
-
“Although no question of common intention arises, one must
” construe the compulsory purchase order and ascertain the intention
” of the acquiring authority. Camden must have intended to acquire
” the rights here in question, without which it would be impossible for
” the maisonettes to be used as houses. The description of the physical
” property which they are empowered to take therefore includes by
” necessary implication all ancillary rights necessary for its use for the
” purpose for which it is being acquired—that is, as houses.” (p. 613). -
” The maisonettes were being acquired for the purpose of being
” used as houses. There is a finding of fact that these ancillary rights
” are necessary to enable them to be used for that purpose. Camden
” must therefore have intended to acquire these ‘ rights ‘ with the houses,
” and on the true construction of the compulsory purchase order they
” are included by necessary implication in the description of the
“‘ houses’ themselves” (p. 614).
-
-
Before I deal with the argument based on ” necessary implication “. I
should describe in more detail the ” ancillary rights” in question. There
was produced before the Inspector a document—marked CBC2A—in which
Camden gave its description of these rights. I quote the relevant part.
” Note of Ancillary Rights and Obligations for Inclusion in the
” Conveyance
” A. The London Borough of Camden will acquire the following
” rights pursuant to the first rule Wheeldon-v.-Burrows (1879 12 Ch.D.31
” and section 62(2) of the Law of Properly Act 1925.
” (1) A right (in case of emergency only and for no other purpose
” whatsoever) for the Council, their tenants and occupiers of
” the acquired premises to use the staircase below podium
” level at the north end of the demised premises.
” (2) A right in common with the owners and occupiers of the
” remaider of the building to use the goods lift (when operating*
” for the purpose only of removing rubbish from the acquired
” premises and for no other purpose whatsoever.
” (3) A right of support from the building below podium level and
” from the columns supporting the residential block.
” (4) A right of free passage or running of water, soil, electricity,
” gas, and other services through the pipes, wires, and cables
” serving the acquired premises.
” (5) A right of access by means of the outside of the building for
” purposes of window cleaning, maintenance, and repair.
” (6) All other such rights as are within the said rule and section.”
There are several points to notice about this. First, the document formed
no part of the compulsory purchase order so has no status in law. Secondly
it is non-exhaustive (see paragraph 6) and indeed learned counsel for Camden
described the items as ” illustrations “: one, possibly important, other right
6
not specifically mentioned, was a right of access to the electricity meter room.
Third, the list is headed with a reference to Wheeldon v. Burrows, and to
section 62 of the Law of Property Act 1925, so confirming that what we
have is an attempt to gain by a new phrase of ” necessary implication ”
exactly what Camden cannot get under either of these rules. Fourthly, it
is obvious from the list, and also from the factual situation of the maisonette
block, that just what rights the occupiers of the maisonettes should have over
the retained portion of the building must be a matter of discussion and
negotiation, and in no way comes under a heading of ” necessity “. That
word might indeed cover access to the block, but this is provided for by
acquisition of the lifts and staircases: other exits and entrances can be
provided through several permutations; it might cover drains, but the
situation as regards these is not simply one of an easement of pipes, since
below podium level the same pipes and mains have to serve the needs of
both parts of the wing; it might cover support, but the precise obligations
of the subjacent owner as regards the elaborate structure of ” stilts ” and
cement blocks, most evidently need description. A confirmation of this is
provided by the underlease of the maisonettes from Sovmots to Brompton
dated 23rd November 1973. This, as one would expect, contains an extensive
body of reservations and covenants consequent on the separation or occupa-
tion. It resembles—and probably inspired—the document CBC 2A but is
not identical with it; it clearly represents the result of careful negotiation
between landlord and tenant. And this is surely the reality of the matter.
Centre Point was designed as a combined unit: it was not constructed for
separation into parts. If separation is carried out, there is no evident,
apparent, and still less necessary list of rights which, without specification, or
in the nature of things, attach to a separated part. And if these rights cannot
(for the reasons I have given) arise under the Rule or under section 62,
a fortiori, in my opinion, they cannot arise as necessary. Or, to put in another
way, Camden while professedly contending for necessities is really adopting a
standard of reasonable enjoyment and convenience which must be custom-
made for this structure.
This argument, from necessary implication overlaps with two other argu-
ments, based on definitions appearing in the legislation.
1. What is authorised to be acquired is “land”. By the combined
operation of the Compulsory Purchase Act 1965 section 1(3), the Acquisi-
tion of Land (Authorisatiion Procedure) Act 1946 section 8(1), and the
Housing Act 1957 section 189(1), land is defined as including “any
” right over land “. In my opinion this is a carefully spelt out definition
within which the acquiring authority is confined. There is no room
here for extension by way of ” necessary implication ” whatever that
expression is supposed to mean. If what is authorised to be acquired
cannot be used for the purpose for which its acquisition is intended, un-
less by agreement, and if agreement is not forthcoming, I know of no
doctrine by which, under some rule of implication, the power of acqui-
sition can be extended beyond the satutory definition. I accept, of
course, as authority amply demonstrates, that statutory powers can,
indeed should, be construed in accordance with Parliament’s intention,
so as to include what may fairly be regarded as incidental to or conse-
quential upon what has been authorised—this is the well known principle
of Ashbury Railway Carriage & Iron Co. v. Riche L.R. 7 H.L. 653 :
for a recent application see Loweth v. Minister of Housing & Local
Government (1970) 22 P. & C. R. 125. But it is one thing to say that
an express power to acquire land may be valid, if fairly within the
statutory purpose: It is quite another to say that under a power to ac-
quire land there follow with the land some other interests not mentioned
in the authority to acquire. Expropriation cannot take place by implica-
tion or through intention: it is authorised or not authorised. And to see
which, it is necessary to construe the authority. So is acquisition author-
ised under these words? In my opinion, clearly not. A power to
acquire a right over land cannot authorise compulsion of an
owner of land not being acquired to grant new rights over that land;
for the latter quite different words would be needed. Parliament has
7
tried its hand at them in the Local Government (Miscellaneous Provi-
sions) Act 1976, section 13—the contrast with the words relevant here
is clear.
2. The Housing Act 1957 contains specific provision for the acqui-
sition of houses (section 96). I am willing to accept, for the purpose of
this argument, that there is power compulsorily to acquire ” houses ” as
defined in the Act—as well as to acquire ” land “. Section 189(1)
contains this:
” ‘house’ includes (a) any yard, garden, outhouses and appurten-
” ances belonging thereto or usually enjoyed therewith “,
and it is said that these words carry the ancillary rights. But I cannot
agree. These words are a clear echo of those used in the first rule in
Wheeldon v. Burrows and in section 62 (u.s.). ” No doubt,” said Fry LJ.
” the word ‘ appurtenances’ is not apt for the creation of a new right,
” and the word ‘ appurtenant’ is not apt to describe a right which had
” never previously existed “. But, he continued, ” appurtenant” had
long been held ” to admit of a secondary meaning and as equivalent in
” that case to ‘ usually occupied’ “. Thomas v. Owen, 20 Q.B.D. 225,
231-2. The draftsman might have had this passage in mind. The words
are totally inadequate to create or define or to pass a complex of an-
cillary right which at the time of the order had no definition and, with
only some possible exceptions, no existence.
So, by whichever route the respondents attempt to go, I find that they fail
in the contention that the compulsory purchase order secures them the rights
which they require. I must mention, in conclusion, two arguments.
-
-
-
As the second quotation I have made from the judgment of the
Court of Appeal shows, that court took the view that the necessity of the
ancillary rights claimed was established by a winding of fact of the
inspector. I do not so read his report. He accepted the argument put
before him that the rights could pass to the purchaser under the Rule
and under section 62 (u.s.). He accepted that the rights had not been
exercised. He considered that one could look ” to the common inten-
tion of the parties ” and that when the relation of vendor-purchaser
between the parties exists they must be deemed to have intended that
those rights would pass. In any event they would pass under section 62
so long as the right words were put into the notice to treat. It was in
this context, which (as is really now accepted) was not maintainable in
law, that he wrote ” it is obvious that the rights claimed are necessary
” for the reasonable enjoyment of the maisonettes”. I do not regard
this finding as going beyond the estiblishment of a set of facts which, in
his opinion, might bring in the Rule and secton 62. -
The learned inspector, in this followed by the Court of Appeal,
held that the rights, though not enjoyed or exercised, existed ” in a latent
” form “. But this, with respect, is either a contradiction in terms, or a
very great, and indeterminate, extension of both Rule and section. Each
is based on enjoyment and exercise: neither is warrant for an emergence
—Athene-like—of rights fully defined, on a unilateral act by the
acquiring authority.
-
-
In my opininon, therefore, since the Minister when confirming the order
did so upon a hypothesis, as to the ancillary rights, which turns out not to
be well founded, the order must be quashed.
I therefore find it unnecessary to decide whether, if there is power under
the Housing Act 1957, to require new rights to be created, such new rights
must be specified in the compulsory purchase order. While I incline to
think that in the interest of fairness and justice they should be, I wish to
cast no doubt upon what I understand is accepted procedure, namely, that
such existing legal rights (e.g., easements) as go with land being acquired or
are on the title to that land need not be so specified.
I would allow the appeal and restore the order of Forbes J. quashing the
order. The respondents must pay the costs of the appellants in this House
and in the Court of Appeal.
8
Lord Edmund-Davies
MY LORDS,
These conjoined appeals relate to applications by the appellants to quash
The London Borough of Camden (Centre Point Residential Accommodation)
Compulsory Purchase Order 1972, made by the Council of the London
Borough of Camden (” Camden “) on September 12th 1972, and confirmed,
after modification, on August 30th 1974 by the Secretary of State for the
Environment. The applications were made under paragraph 15(1) of the
First Schedule to the Acquisition of Land (Authorisation Procedure) Act
1946, which was incorporated into the Housing Act 1957 by section 97(1)
and Schedule 7 thereto.
The first appellants (” Sovmots “) hold a lease for 150 years from Septem-
ber 29th 1960 of the Centre Point site granted to them by the Greater London
Council, and the second appellants (” Brompton”) an underlease for 45
years from September 29th 1973 of the residential portion of the vast build-
ing erected by Sovmots on the site and completed in November 1966. Each
asserted that ” the authorisation granted by the compulsory purchase order
” is not empowered to be granted “, and applied for the order to be quashed.
Forbes J. acceded to their applications, but the Court of Appeal rejected
them. They now appeal to your Lordships’ House for the judgment of
Forbes J. to be restored.
If Camden was not empowered to make the compulsory purchase order
(” the C.P.O.”), it is common ground that the Secretary of State had no
right to confirm it, either in its original form or as modified by him in
the light of the report rendered after a lengthy public inquiry presided
over by Mr. Boydell. Q.C., and that it must be quashed. It follows that
Mr. Browne-Wilkinson was right in stressing that the primary question for
determination now is whether the appellants have established that the
Secretary of State was wrong in law when he proceeded to confirm the
C.P.O. “
My Lords, it appears that Camden erred in three respects in making
the C.P.O. First, they paid insufficient attention to the legal problems
inherent in the compulsory acquisition of a unique type of property. This
was far from being an ordinary compulsory purchase project. Camden
were not contemplating the acquisition of houses or a block of flats or
of some independently occupied flats in a block, but of 36 maisonettes
within the outer shell of a gigantic building whose internal construction
was elaborately interlocked, and regarding which the inspector reported
(para. 135):
” Centre Point was conceived as a complex suitable for a single
” office user with a need of showroom space. It seems clear that
” from the outset there were misgivings about the maisonettes. They
” were an embarrassment, but they were part of the planning permis-
” sion package. The idea therefore developed, and was fostered, that
” they should be pieds-a-terre for the offices’ directors and executives “.
The second point of importance which Camden seemingly failed to regard
as legally significant is that, even up to the last day of the inquiry (February
8th 1974), Brompton, who had become underlessees of the maisonettes in
the preceding November, had not let any of them and that the whole of
the vast Centre Point building had throughout remained unoccupied. The
third error was the authority’s failure to appreciate the basic difference
between the consequences flowing from the compulsory acquisition of pro-
perty and those which follow when parties have agreed the terms upon
which the title to landed property is conveyed.
The unique and interlocking structure of Centre Point has been described
by my noble and learned friend on the Woolsack and need not now be
repeated. The legal implications of the fact that the entire premises were
unoccupied will emerge later. But what must not be deferred is consideration
of the legal consequences flowing from the making of a C.P.Q. in such
9
circumstances. It was exemplified by the manner in which Camden through-
out dealt with the second of the five questions (conveniently set out by
Browne L.J. at [1976] 3 W.L.R. 605G) which have been canvassed. Although
Forbes J. described is as a ” subsidiary contention” ([1976] 2 W.L.R. 78B),
it became the primary question in your Lordships’ House, and rightly so, for,
if answered in a manner adverse to the respondents’ submissions, it is
conclusive of the proper outcome of these appeals. The Court of Appeal
found it ” the most difficult question in this case ” (ibid, 609F), but it can at
least be simply stated, viz. was Camden empowered to acquire, in addition
to the 36 maisonettes, rights over and in respect of other parts of Centre
Point without which the maisonettes could not be used as housing accom-
modation? If that question demands a negative answer, the C.P.O. must be
quashed, for the only power conferred on a local authority by section 92(1)
of the Housing Act 1957 to acquire “houses” is in order to “provide
housing accommodation “.
It is as clear as it can be that for a long time Camden were under the
delusion that the question had to be answered in the affirmative because the
acquisition of such physical parts of Centre Point as were specified in the
C.P.O. would automatically carry with it rights over other parts certainly
no less than those passing under a conveyance voluntarily entered into
between vendor and purchaser. Thus it was that, doubts having arisen during
Mr. Boydell’s inquiry as to what rights Camden were contending for, at
some stage after they had closed their case Camden produced document
C.B.C. 2A, which must be set out in full:
” A. The London Borough of Camden will acquire the following
” rights pursuant to the first rule Wheeldon v. Burrows (1879) 12 Ch.
” D. 31 and section 62(2) of the Law of Property Act 1925.
” (1) A right (in case of emergency only and for no other purpose
” whatsoever) for the Council, their tenants and occupiers of the
” acquired premises to use the staircase below podium level
” at the north end of the demised premises.
” (2) A right in common with the owners and occupiers of the
” remainder of the building to use the goods lift (when operat-
” ing) for the purpose only of removing rubbish from the
” acquired premises and for no other purpose whatsoever.
” (3) A right of support from the building below podium level and
” from the columns supporting the residential block.
” (4) A right of free passage or running of water, soil, electricity,
“gas, and other services through the pipes, wires, and cables
” serving the acquired premises.
” (5) A right of access by means of the outside of the building
” for purposes of window cleaning, maintenance, and repair.
” (6) All other such rights as are within the said rule and section.”
” B. The London Borough of Camden will reserve in the conveyance
” the following rights in favour of the tenants or occupiers of the re-
mainder of the building:
” (1) A right (in case of emergency only and for no other purpose
” whatsoever) for the tenants and occupiers of the remainder of
” the building to use the staircase at the south end of the build-
” ing below podium level.
” (2) A right of shelter from the acquired premises.
” (3) Such other rights as are within the second Rule in
” Wheeldon v. Burrows and are not inconsistent with the pur-
” poses of the acquisition, as may be agreed.”
Although Camden did not suggest that this document had any statutory
effect, there can be no doubt that their case was largely based upon it, and
that it was so treated by the Secretary of State. Furthermore, although this
House was told that at some stage during the Court of Appeal hearing both
10
respondents abandoned reliance upon Wheeldon v. Burrows and section 62
of the Law of Property Act 1925, during the hearing before your Lordships
considerable reliance nevertheless appeared to be still placed upon them.
Nothing could be more impermissible. The line of cases to which Wheeldon
v. Burrows belongs are all illustrations of right resulting from the rule
against derogation from grant, which Younger L.J. once described as “a
” principle which merely embodies in a legal maxim a rule of common
” honesty ” (Harmer v. Jumbil (Nigeria) Tin Areas Ltd. [1921] 1 Ch. 200, at
225). Surprising though it may appear, it seems necessary to stress that
Wheeldon v. Burrows posed the question as to what rights impliedly pass
on a conveyance between vendor and purchaser, and to quote once more the
classic words of Thesiger L.J. (at p. 49):
“… two propositions may be stated as what I may call the general
” rules governing cases of this kind. The first of these rules is that on
” the grant by the owner of a tenement of part of that tenement as it is
” then used and enjoyed, there will pass to the grantee all those con-
” tinuous and apparent easements (by which, of course, I mean quasi
” easements), or, in other words, all those easements which are necessary
” to the reasonable enjoyment of the property granted, and which have
” been and are at the time of the grant used by the owners of the entirety
” for the benefit of the part granted. The second proposition is that,
” if the grantor intends to reserve any right over the tenement granted,
” it is his duty to reserve it expressly in the grant.”
The basis of such propositions is, as Lord Parker of Waddington stressed
in Pwllbach Colliery Co. Ltd. v. Woodman [1915] A.C. 634, at 646, that,
” The law will readily imply the grant or reservation of such easements as
” may be necessary to give effect to the common intention of the parties to
” a grant of real property “. But there is no common intention between an
acquiring authority and the party whose property is compulsorily taken from
him, and the very basis of implied grants of easements is accordingly absent.
Furthermore, the implication, where open to be made, extends only to ” con-
” tinuous and apparent easements… necessary to the reasonable enjoyment
” of the property granted, and which have been and are at the time of the grant
” used by the owners of the entirety …”, whereas few of the rights claimed by
the respondents were ” apparent ” and none of them had ever been ” used “.
I have to say that the inspector was therefore wrong in reporting that,
“… one cannot read a compulsory purchase order as a conveyance; but
” what is beyond doubt is that the ordinary conveyancing rules apply to a
” conveyance subsequent to a compulsory purchase order … so the principle
” behind Wheeldon v. Burrows . . . has full application to the situation “.
The Court of Appeal, recognizing that no question of common intention was
involved, thought it pertinent to consider what was Camden’s intention in
making the C.P.O. (ante, at 6I3G), and concluded that ” Camden must have
” intended to acquire the rights here in question, without which it would be
” impossible for the maisonettes to be used as houses “. But, it being un-
challenged that Camden sought thereby to provide housing accommodation,
it is immaterial to explore what rights they had it in mind (and therefore
” intended “) to acquire when they made the C.P.O.
Then what of section 62 of the Law of Property Act 1925? The section
provides that, unless a contrary intention appears in a conveyance of land,
it will be deemed to include and convey with the land all ” easements, rights
” and advantages whatsover, appertaining to or reputed to appertain to the
” land, or any part thereof, or, at the time of conveyance . . . enjoyed with,
” or reputed or known as part or parcel of or appurtenant to the land or
” any part thereof”. But the section cannot operate unless there has been
some diversity of ownership or occupation of the quasi-dominant and quasi-
servient tenements prior to the conveyance ; Long. v. Gowlett [1923] 2 Ch.
177. It is true that in Broomfield v. Williams [1897] 1 Ch. 602 the contrary
was held in the case of a claim to light, but, as Megarry and Wade point
out (Real Property, 4th Ed.. 838), ” This easement is an exception to many
” rules “. The inspector was thus in error in reporting, in the circumstances
11
of this case, that, ” at the conveyancing stage the normal rules—including
” section 62—apply “.
The respondents having ultimately recognised that they cannot rely upon
either Wheeldon v. Burrows or section 62 for the purpose of acquiring
the C.B.C. 2A rights (regarding which the inspector reported that ” Camden
” would have to acquire them before occupation of the maisonettes could
” be enjoyed “) upon what other basis can they now be claimed? It was
submitted that three different routes were available to the respondents, and,
although at some points they overlap, something must be said about each
of them: —
Route 1. Section 96 of the Housing Act 1957 empowers a local authority
” (a) to acquire any land, including any houses or buildings thereon, as a
” site for the erection of houses ‘”‘, and section 189(1) provides that ” ‘ land ‘
” includes any right over land “. Therefore, submit the respondents, Camden
is empowered to purchase compulsorily not only the corporeal hereditaments
specified in the C.P.O. as modified but also the incorporeal hereditaments
set out in C.B.C. 2A.
In my judgment, this is not so. When the C.P.O. was made in respect
of the maisonettes, there existed no ” rights ” over the rest of Centre Point
and no underlease to Brompton. Although not accepted by the Court of
Appeal (ante. pp. 610H to 611H), it is established that, as Forbes J. said
(ante, at p. 84E),
” In the absence of any peculiar powers, conferred by the special
” Act, the Lands Clauses Consolidation Act 1845 does not empower
” a statutory authority to acquire compulsorily … a mere easement
” over land; the whole land in solido must be acquired …. There
” is nothing in [the section 189(1) definition of ‘land’] which appears
” to me to require a departure from the general rule . . .”.
Nevertheless, the Court of Appeal found ” convincing ” (p. 609H) the reason
advanced to the contrary by the inspector that, by its section 189(1) definition,
” Parliament’s intention was obviously that larger quantities of land beyond
” that necesarily required should not be taken “. The appellants have through-
out stressed that Camden were seeking both to create new rights over the
rest of Centre Point and promptly to acquire them. But the inspector found
that
“… the rights which Camden seeks to acquire are not in reality new
” rights created by the order for the first time. These were all rights
” which in effect existed in a latent form to benefit one part of the
” building vis-a-vis another part. Each of the rights set out in Part A
” of C.B.C. 2A already existed and could have been enjoyed … by
” whomever the maisonettes were occupied “.
If I may be permitted to say so of an inspector whose report is a model of
clarity and care, I find that as startling a proposition as Mr. Boydell said
he found the contrary proposition. At the making of the C.P.O., in truth
there existed stairs which could be climbed, drainage pipes which could
be used, and lifts which could be made operable. But there existed no
easements in favour of the empty maisonettes, and not even quasi easements,
and yet it is said that ” rights over land ” already existed in a latent form
and could therefore be acquired. No authority for the proposition was cited
and I do not think any exists; and the extent to which the law has been
altered for the future in this respect by section 13 of the Local Government
(Miscellaneous Provisions) Act 1976, does not call for present consideration.
In his reply Mr. Browne-Wilkinson referred your Lordships to the decision
in Wong v. Beaumont Property Trust Ltd. [1965] 1 QB 173, but that
case related to an easement of necessity, and learned counsel had been at
pains throughout to base his claim to C.B.C. 2A rights on a wholly different
basis. In my judgment, Route 1 does not avail the respondents.
Route 2. Section 189(1) of the Housing Act 1957 defines “house” as
including “… (6) any part of a building which is occupied or intended
” to be occupied as a separate dwelling “. It would therefore be surprising,
12
submitted Mr. Browne-Wilkinson, if there were not also a power to acquire
compulsorily over the rest of the building rights needed for the part acquired
to be used as a separate dwelling.
Here again one must revert to the fact that no part of the unique struc-
ture which is Centre Point had ever been occupied by the time when the
C.P.O. was made. When a flat in a partly occupied building is acquired,
or if a C.P.O. relates to a block of flats, there is probably no difficulty in
envisaging and ascertaining what rights over other parts are necessary
for the proper enjoyment of the part being acquired. But it is a wholly
different thing to say that where, as here, no rights exist over other parts,
the acquiring authority can, by the one act of including a C.P.O., create
them and ipso facto acquire them. In my judgment the proposition is
unacceptable.
Route 3. Section 189(1) also provides that ” ‘ house’ includes—(a) any
” yard, garden, outhouses and appurtenances belonging there to or usually
” enjoyed therewith “. The respondents submit that ” appurtenances”
covers both corporeal and incorporeal hereditaments; that an easement
can ” belong “, but not a quasi-easement; that the words ” usually enjoyed
therewith ” are designed to cover quasi easements; and that, accordingly,
when the C.P.O. was confirmed Camden became entitled to all those ” ancil-
lary rights ” over the rest of Centre Point itemised in C.B.C.2A.
In my judgment, this submission is wrong in almost every particular.
A right of way appurtenant to Blackacre will undoubtedly pass to the
acquiring authority when a C.P.O. in respect of Blackacre is confirmed.
But even if a quasi easement can be ” appurtenant” (a proposition which
Mr. Goodfellow challenged, and the accuracy of which need not now be
determined), the ” appurtenances ” here claimed, so far from being ” usually
” enjoyed ” had never been enjoyed when the C.P.O. was made. Route 3
accordingly again does not avail the respondents.
For these reasons, I hold that Camden was not empowered to acquire
under Part V of the Housing Act 1957, any of the rights set out in
C.B.C.2A. As they could acquire property solely in order to provide
housing accommodation, and those rights having been found necessary for
the maisonettes to be so used when they became severed in ownership from
the rest of Centre Point, it follows that the C.P.O. was invalid. It should
here be added, though parenthetically, that the inspector nowhere
reported that the C.B.C.2A rights were in themselves sufficient for the statu-
tory purpose. Indeed, it emerged that Camden would need yet further
important rights not covered by the C.P.O., such as a right of access to
the electric meter in the Intake Room and another to the drainage inspection
chamber, both of which are located outside those physical parts of Centre
Point which are comprised in the order.
In strictness, no necessity to deal with the remaining questions arises.
But it may be useful if I nevertheless reveal the conclusion to which I have
come regarding the third question, viz. Assuming that Camden had power to
acquire the rights specified in their C.B.C.2A, must those rights be specified
in the compulsory purchase order? None were specified, and your Lordships
were told by learned counsel for Camden that even C.B.C.2A was not
exhaustive and provided mere ” illustrations ” of the rights which the authority
claimed passed on confirmation. Surely nothing could be more unsatisfactory,
for the ambit of expropriatory orders should not be open to debate, and it
is noteworthy that section 13 of the 1976 Act (earlier referred to) authorises
the compulsory acquisition only of ” such new rights over land as are
” specified in the order “. But the question arising under the present law is
not whether they ought to be specified, but whether they must be. The Court
of Appeal answered the question in the negative, but I have to say respect-
fully that I prefer and adopt the observations of Forbes J. (ante, p. 100B)
that a compulsory purchase order—
“… is a unilateral statement made by the acquiring authority of what
” they desire to take from the landowner, not with his consent but willy
” nilly. As such it should specify precisely what is required beyond
13
” the strictly legal easements (or profits) which are appurtenant to the
” land described; and if it does not do so the acquiring authority will
” be authorised to acquire nothing beyond the land itself and such
” appurtenant rights “.
My Lords, for these reasons I would allow these conjoined appeals and
I concur in the order proposed by the noble and learned Lord on the
Woolsack.
Lord Fraser of Tullybelton
MY LORDS,
I have had the advantage of reading in draft the speech of my noble and
learned friend, Lord Keith of Kinkel, and I agree so completely with his
reasoning and his conclusions, that no useful purpose would be served by
repeating them in different words.
I agree that the appeals should be allowed.
Lord Russell of Killowen
MY LORDS,
The Housing Act enables the Authority to make a compulsory purchase
order in respect of existing buildings for the purpose of providing dwelling
accommodation therein. Insofar as there is attached to the building the
subject of the order any legal easement over other land the order will embrace
without mention any such easement, whether its origin lies in express grant,
or in prescription, or under Wheeldon v. Burrows, or by force of section 62
of the Law of Property Act 1925. But this is not the present question, which
is concerned with a situation where common ownership of the building the
subject of the order and other relevant land or building precludes the exist-
ence of any legal easement in favour of the former over the latter.
The case has been to some extent confused in its course by early reliance,
at least by way of analogy, upon Wheeldon v. Burrows and/or section 62 of
the Law of Property Act, a reliance which was rightly not pursued in the
Court of Appeal nor in your Lordships’ House. In my opinion it was still
confused in this appeal by the contents of document ” C.B.C.2A “, to which
I will return.
The contention for the appellants that the Housing Act did not authorise
the acquisition of a semi-detached house or of a flying freehold (or as here
long leasehold) was abandoned. What is the outcome of that? I take
first the question of a right of support of the maisonette block by the subjacent
building—the legs, podium and subjacent structure. There is no such legal
easement of support that can last longer than Brompton’s sub-lease: and it
is I think convenient for that purpose to ignore that sub-lease. But it is of
course plain that, as with any other flying freehold or long leasehold such
as this, the maisonette block is wholly unfitted for housing purposes without
such right of support. If the true view of the Housing Act is that it author-
ises by necessary implication the acquisition with the land or building to be
acquired rights over other land or buildings of the owner of the former which
rights are essential to the statutory housing purpose of the compulsory
acquisition, then the right of support would be acquired. At one stage in the
argument I received the impression that counsel for the appellants was
inclined so to concede.
But if that be right then, in any case of such a building, there seems no
justification for excluding from the scope of a valid compulsory purchase
order any other such right which is truly essential to its use for the statutory
purpose–a sine qua non. What rights are in the instant case to be regarded
14
as such is not in fact for decision by your Lordships: and it is this respect
that I venture to think that the document ” CB.C.2A ” has led to confusion,
based as it is on matters reasonably convenient for residential use of the
maisonette block—as shown by the form of Brompton’s sub-lease—and not
as a list of matters sine quibus it could not be used for housing. If called
upon to decide what rights in the instant case were thus essential, I would
include use of the north-east staircase below podium level through door X
as an emergency exit from the maisonette block: for I would assume that
relevant fire regulations would forbid use of the maisonette block as housing
accommodation without that: if that assumption is wrong then it is not
essential. I would include the right to use the drainage system. I would
not include a right to use the rubbish disposal system or the goods lift: it is
perfectly feasible to dispose of rubbish from the maisonettes in bags and by
use of the passenger lifts which are themselves being compulsorily acquired.
Whether access to the electricity meter room is essential I am not sure.
On the whole, therefore, with all respect to those who hold a contrary
view and who have expressed it so cogently, I am of opinion that there is in
the Housing Act by necessary implication a power to acquire with the
maisonette block and the passenger lifts and south staircase and entrance
hall such rights over the remaining property of Sovmots as are essential to
the use of the maisonette block for housing purposes—i.e., without which it
cannot be so used. In any given case what are those rights must be defined
by the character of the building and the layout: they are objectively deter-
minable and do not require to be set out in the compulsory purchase order.
In any given case the acquisition of such rights may be relevant to quantum
of compensation.
My voice being a lone one in this matter I may be excused from elabora-
tion. Similarly I may be excused, in considering that these appeals should
be dismissed, from saying more than that I do not accept either of the two
further points urged by the appellant Brompton, that the compulsory pur-
chase order and the confirmation are vitiated by the modifications made,
or by the withdrawal from opposition of the G.L.C., on the assurance by
Camden that Notice to Treat would not be served in respect of the freehold
interest.
I would dismiss these appeals.
Lord Keith of Kinkel
MY LORDS,
These appeals are concerned with the validity of a compulsory purchase
order which on 12th September 1972 was made by the first respondents, the
London Borough of Camden (” Camden “), for housing purposes, in respect
of 36 residential maisonettes on the upper floors of the Earnshaw Wing
section of the Centre Point development in central London. The freeholder
of the development is the Greater London Council. The first appellants,
Sovmots Investments Ltd. (” Sovmots “) are holders of a lease of the site
for 150 years from 29th September 1960. The second appellants, Brompton
Securities Ltd. (” Brompton “) have a lease from Sovmots for the 36 maison-
ettes for a period of 45 years commencing on 29th September 1973.
Following a public local inquiry, at which Sovmots and Brompton appeared
as objectors, the second respondent, the Secretary of State for the Environ-
ment, confirmed the compulsory purchase order on 30th August 1974.
Sovmots and Brompton applied to the High Court to quash the order and
were successful before Forbes J., but on appeal by Camden and the Secretary
of State the Court of Appeal (Megaw, Lawton and Browne LJJ.) restored
the latter’s decision to confirm the order.
Before Forbes J. and in the Court of Appeal both Sovmots and Brompton
took the point that upon a proper construction of the Housing Act 1957 a
15
local authority could not validly be authorised by the Minister to acquire
compulsorily a horizontally divided part of a building, excluding the under-
lying soil upon which the building stands. Both Forbes J. and the Court of
Appeal decided this point against them, and before your Lordships’ House
that decision was acquiesced in. The argument for Sovmots was limited to
two questions, both of which were decided in their favour by Forbes J. but
against them by the Court of Appeal. Brompton supported the argument
for Sovmots upon these two questions, and also argued two further points, to
which I shall refer later.
The two questions argued by Sovmots were :
-
-
-
Whether on a true construction of the Housing Act 1957 a local
authority may be authorised by the Minister not only to acquire
compulsorily a corporeal hereditament, but also to compel the grant for
the benefit of such hereditament of new rights over lands or buildings
not authorised to be acquired? and -
If the answer to question (1) be yes, whether a compulsory purchase
order can authorise a local authority to compel the grant of such new
rights, even though there is no description or mention of them in
such order?
-
-
These questions arise in the following way. In the course of the public local
inquiry Camden appreciated that its purpose in promoting the compulsory
purchase order for the 36 maisonettes, namely that of providing housing
accommodation, could not be achieved unless it could also acquire certain
new rights over other parts of Centre Point, but they contended that the order
as made would enable them to acquire such rights. They put in a document
C.B.C. 2A setting out certain ancillary rights which they claimed they would,
in the event of the compulsory purchase being completed, acquire under the
first rule in Wheeldon v. Burrows (1879) 12 Ch. D. 31 and section 62(2)
of the Law or Property Act 1925. These rights were (1) a right for the
tenants of the maisonettes to use a certain staircases at the northern end of
the Earnshaw Wing, below the level of the maisonettes, as a fire escape, (2)
a right to use for the purpose of removing rubbish from the maisonettes a
goods lift below the level of the maisonettes, (3) a right of support for the
maisonettes from the building below them, (4) a right of free passage for
water, soil, electricity, gas and other services through the pipes, lines and
cables serving the maisonettes, and (5) a right of access by means of the
outside of the building for purposes of window cleaning, maintenance and
repairs.
The inspector who conducted the public local inquiry accepted in his report
to the Secretary of State that these rights would automatically be carried to
Camden in the event of the compulsory purchase being completed, and on
that basis recommended that the order be confirmed. In confirming the
order the Secretary of State proceeded on the same basis, and in this House
it was expressly conceded on his behalf that, if he was mistaken in the view
that the rights would automatically be carried to Camden, then his decision
to confirm the order was vitiated by an error in law and that the order ought
to be quashed.
The answer to the first question posed requires consideration of the relevant
provisions of the Housing Act 1957. These are—
Section 92(1):
” A local authority may provide housing accommodation— … (c)
” by acquiring houses . . .”.
Section 96:
” A local authority shall have power under this Part of this Act—
” . . . (b) to acquire houses, or buildings which may be made suitable
” as houses, together with any lands occupied with the houses or buildings,
” or any estate or interest in houses or in buildings which may be made
” suitable as houses . . .”.
16
Section 97(1):
” Land for the purposes of this Part of this Act may be acquired
” by a local authority by agreement, or they may be authorised to pur-
” chase land compulsorily for those purposes by the Minister; and the
” Seventh Schedule to this Act shall apply in relation to a compulsory
” purchase under this section.”
The Seventh Schedule incorporates the Acquisition of Land (Authorisation
Procedure) Act 1946, and paragraph 2 of the First Schedule to that Act
provides:
” The compulsory purchase order shall be in the prescribed form and
shall describe by reference to a map the land to which it applies.”
Under section 8, “‘ land’, in relation to compulsory purchase under any
” enactment, includes anything falling within any definition of the expression
” in that enactment “.
Section 189(1) of the 1957 Act includes the following definitions:
” ‘ house ‘ includes—
” (a) any yard, garden, outhouses and appurtenances belonging
” thereto or usually enjoyed therewith, and
” (b) for the purposes of any provisions of this Act relating to the
” provision of housing accommodation, any part of a building
” which is occupied or intended to be occupied as a separate
” dwelling “.
” ‘ land ‘ includes any right over land.”
The respondents advanced three reasons which, so they contended, led to
the conclusion that on a proper construction of the relevant provisions of the
1957 Act a local authority was empowered, in the event of compulsory pur-
chase for housing purposes of part of a building in single ownership, also
to create and acquire compulsorily ancillary rights over other parts of the
building. In the first place it was said that such a power was conferred by
necessary implication, in respect that without it the purpose of Part V of the
Act, namely the provision of housing accommodation, would be frustrated
in any situation where a local authority required to purchase compulsorily
for that purpose part of a building in single ownership. Without such
ancillary rights the part acquired could not be used at all, or at least could
not be used reasonably conveniently, as housing accommodation. In my
opinion this argument is unsound. The definition of ” house ” in section
189(1) of the Act is a wide one, but it does not expressly cover ancillary
rights such as are here sought to be created and acquired. Where Parliament
intends to confer power to create and acquire compulsorily new easements
over land it says so expressly, as in section 11 of the Water Act 1968 and
section 55(2) of the Post Office Act 1969. Compulsory purchase enactments
are to be strictly construed, and a particular power of compulsory acquisition,
which is not expressly conferred, can be conferred by implication only where
the statutory provisions would otherwise lack sensible content. That is
not the position here. The provisions of sections 96 and 97 of the 1957
Act provide ample scope for a local authority to carry out its function of pro-
viding housing accommodation through the purchase of land and houses with-
out having to resort to the compulsory acquisition of parts of buildings in
single ownership and of ancillary rights over the other parts of such buildings.
It was said that without power to acquire such ancillary rights, a local
authority could never acquire compulsorily, for example, one of a pair of
semi-detached houses in single ownership, because no right of support would
be available from the adjoining house, failing agreement, and that this would
be an unreasonable result. In a simple situation such as that one it is
unlikely that agreement would not be reached, as being for the mutual benefit
of both parties, and the practical consequences would in any event not be
serious. What I regard as more important is the prospect, in a complicated
case such as the present one, of the compulsory acquisition of rights which,
according to the respondents’ argument, need not be specified in the com-
pulsory purchase order. While it might not be too difficult to ascertain what
17
easements of necessity had been created and acquired, there would be great
difficulty as regards rights necessary for the reasonably comfortable enjoyment
of the part of the building acquired. It was contended by the respondents
before Forbes J. and in the Court of Appeal that such rights would be
acquired automatically on completion of the compulsory purchase under the
first rule in Wheeldon v. Burrows (1879) 12 Ch. D. 31 and section 62(2)
of the Law of Property Act 1925. But that contention was plainly wrong
and has been abandoned. These rules, applicable to voluntary conveyances
of land and to contracts for the sale of land, have no place in compulsory
purchase. They are founded upon the principle that a granter may not
derogate from his grant, for which there is no room where the acquisition
is compulsory. In the absence of these rules such ” quasi-easements ” would
not pass even on the sale of land by agreement, and I can find no grounds
whatever for implying similar rules into the compulsory purchase provisions
of Part V of the 1957 Act.
In my opinion Parliament, when it passed the 1957 Act, did not have in
view the possibility of the acquisition by local authorities for
housing purposes of part of a building in single ownership, and in
particular of a horizontally divided part of such a building. Horizontally
divided ownership of a building was extremely uncommon in England and
Wales in 1957, being practically unknown, so it was said, outside Lincoln’s
Inn. It is a conception which gives rise to a very complicated situation as
regards the mutual rights and obligations of the several owners. It is,
however, a conception familiar to the law of Scotland for centuries, and the
difficulties have there been resolved, in a mass of case law, on the basis
of rights of common property and common interest, rather than by reference
to the law of servitudes. In section 184(1) of the Housing (Scotland) Act
1950, which corresponds to section 189(1) of the 1957 Act, “house” is
defined as including a ” flat ” which in turn is defined as premises ” forming
” part of a building from some other part of which it is divided horizontally “.
The absence from the 1957 Act of any similar reference indicates that Parlia-
ment in enacting it did not have in contemplation the acquisition of such
premises by a local authority for housing purposes, and although the appellants
now accept that ” part of a building ” on a proper construction includes a
flat, I think it is right to infer that Parliament did not intend to deal with the
problems raised by horizontal severance of part of a building in single
ownership.
Then it was contended for the respondents that Camden was empowered
to acquire the rights set out in document C.B.C. 2A as being, in relation to
the 36 maisonettes, ” appurtenances . . . usually enjoyed therewith ” within
the meaning of these words in the definition of ” house ” in section 189(1)
of the 1957 Act. I have no doubt that these words are capable of covering
incorporeal quasi-easements, and they will do so in a situation where the
latter have been de facto enjoyed by the occupier of the quasi-dominant
tenement, during a period when the quasi-servient tenement has been in
separate occupation. Authority for this is to be found in Thomas v. Owen
(1888) 20 Q.B.D. 225 and in Hansford v. Jago [1921] 1 Ch. 322. But that is
not the situation here. The whole of Centre Point was in single ownership
and occupation on the date when the compulsory purchase order was made,
which I consider to be the relevant date for the purpose of ascertaining
the ambit of Camden’s powers of compulsory acquisition. It does not help
the respondents that after that date but before the date of the public local
inquiry Sovmots let the 36 Maisonettes to Brompton, upon terms which in-
cluded the grant of rights similar to those set out in document C.B.C. 2A.
Camden is seeking to acquire the interest of Sovmots in the maisonettes, not
only that of Brompton. What the words “appurtenances usually enjoyed
with ” certainly do not cover, in my view, is incorporeal rights of the nature of
easements in favour of one part of a single tenement over another part, which
have never existed or been enjoyed otherwise than in favour of or by the
owner of the single tenement as such owner. I would regard that proposition
as self-evident, and authority for it is to be found in Bolton v. Bolton (1879)
11 Ch. D. 968 and in Long v. Gowlett [1923] 2 Ch. 177. It was argued for
18
the respondents that ” usually enjoyed” covered facilities for which the
physical means of enjoyment existed before acquisition, even though they
had never actualy been used. The Earnshaw Wing had been designed, so
it was said, in such a way that the occupiers of the maisonettes when there
came to be any, would necesarily make use of the facilities in question.
This argument found favour with the Court of Appeal, but its acceptance,
In my view, involves taking an unavoidable liberty with the language of
the definition. That language is incapable of supporting such a construction,
and the argument must fail.
Finally, it was contended for the respondents that the definition of ” land ”
in section 189(1) of the Act, as including ” any right over land “, was apt to
empower a local authority to create and acquire new rights over land. There
is, however, no authority in favour of that being the proper construction, and
the words in their natural meaning are confined, in my view, to existing rights
over land. I have already remarked that in other instances where Parliament
has intended to give power for the compulsory creation and acquisition
of new rights over land, it has clearly expressed that intention. Indeed,
It has recently by section 13(1) of the Local Government (Miscellaneous
Provisions) Act 1976 expressly conferred upon any local authority, which
may be authorised by a Minister to purchase land compulsorily, power also
to create and acquire compulsorily new rights over land. I am therefore
unable to accept the respondent’s contention. But even if it were right, the
respondents would, in my view, fail by reason that the rights in question
have not been specified in the compulsory purchase order. This is the subject
matter of the second question raised in the argument for the appellants. It was
maintained by them that, if a new right over land is ” land ” within the
meaning of section 189(1) of the 1957 Act, such as a local authority may
be authorised to acquire compulsorily, then it is also ” land ” for the purposes
of the Acquisition of Land (Authorisation Procedure) Act 1946, and as such
must, by virtue of paragraph 2 of the First Schedule to that Act, be described
in the compulsory purchase order. I regard this as clearly correct. A new
right over land is in an entirely different position from an existing easement
enjoyed in connection with land. A new right which the local authority
intended to create and acquire compulsorily could plainly not be acquired
if the intention were not expressed. The final contention for the respondents
must therefore also fail.
Two further questions were, as I have mentioned, argued by Brompton but
not by Sovmots. The first related to the effect of an agreement entered into
between Camden and the Greater London Council, whereby the former
undertook, in the event of the latter not opposing the compulsory purchase
order, to refrain from acquiring the freehold of the maisonettes, it being
contended that the existence of this agreement vitiated the confirmation of
the order by the Secretary of State. The second was concerned with the
effect of a modification of the compulsory purchase order made by the
Secretary of State upon his confirming it, it being maintained that the
modification had brought within the order land which it would not otherwise
have covered, without the consent of interested persons and contrary to
paragraph 5 of the First Schedule to the Acquisition of Land (Authorisation
Procedure) Act 1946.
In view of the conclusion I have reached upon the main question arising
in these appeals, it is unnecessary for me to deal in detail with these two
subsidiary points. It is sufficient for me to say that I have not been satisfied
that Forbes J. and the Court of Appeal went wrong in decising them against
Brompton.
For these reasons I would allow the appeals.
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