Judicial Review of Compulsory Purchase

Editorial Committee of the Cambridge Law Journal

Judicial Review of Compulsory PurchaseAuthor(s): A. W. BradleySource: The Cambridge Law Journal, Vol. 23, No. 2 (Nov., 1965), pp. 161-166Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505019 .

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THE

CAMBRIDGE LAW JOURNAL

November 1965

CASE AND COMMENT

JUDICIAL REVIEW OF COMPULSORY PURCHASE

Bognor Regis is an evocative name for critics of local government in 1965. A full account of the circumstances which led to the

decision of the Court of Appeal in Webb v. Minister of Housing and

Local Government [1965] 1 W.L.R. 755 would require local research

that is not possible for a brief note. Even without this the

case is a good example of the complex issues so often involved in

administrative law disputes. Doubtless the case will be used in

future to illustrate the principle that statutory powers conferred for

purpose A (coast protection) cannot be used to achieve purpose B

(provision of a public promenade). But this is an extreme and

misleading simplification. The story begins with the inescapable geographical fact of coast

erosion. It is set against a background which includes the structure

and characteristics of local authorities, the limitations of local

government finance, and the reluctance of the central government to accept national responsibiiity for coastal defence. Not until the

Coast Protection Act, 1949, were general powers made available.

The complexity of this Act comes partly from the cherished belief

that local government functions are of a different order from those

of national government. Coast protection powers are divided

between the coast protection authorities (the county district coun-

cils), a variety of other ad hoc bodies and the central departments;

although town planning law places on the Minister of Housing and

Local Government the duty to promote a national policy for the use

and development of land, the Coast Protection Act places on him

no comparable duty to prevent land being washed away. This mixed pattern of statutory authorities explains why the Act sets

up machinery for notices, objections and public inquiry whenever a

coast protection authority wishes to provide new defence works,

161

CLJ.-6



162 The Cambndge Law Journal tloo5]

an elaborate safeguard not usually found in local government legis- lation. If new works are to be carned out on land not already owned by the authority, so that compulsory powers may be necessary, the authority must set in motlon a procedure similar to the usual procedure for the compulsory purchase of land by local auth rities. It seems from the 1949 Act that its framers hoped that a significant part of the cost of coast protection would be recovwered from the owners of the land benefited, axld also assllmed that owners are able to lmdertake coast protection works themselves. By 1962, even the central government accepted that the expenses of coast protection were properly chargeable to the community. The national interest in coastal defence seems undeniable.

The encroachment of the sea at Bognor Regis compelled the urban district council to take counter-measures. As no committee can design or build a sea-wall itself, and as the technical resources of a small district council are limited, the scheme was prepared by a firm of consultmg engiIleers n collaboration with the council's engineer. The first scheme was prepared in 1961, showing at a total cost of £216,000 a sea-wbll running- for a mile along a strip of undeveloped land between highwater mark and a liIle of private houses; the laxld was owned by a variety of owners and was subject to public rights of way; under the scheme anchoring beams were to be sunk at intervals across the strip. Subsequently, the council's engiIleer suggested that the scheme should include, at an extra cost of £15,000, a paved access way along the length of the wall; and this was taken illto the scheme by the consultillg engineers.

In November 1961 the council accepted the revised works scheme and, possibly because they feared opposition from the neighbouring house owners to the paved access way, made a compulsory puzchase order for the whole undeveloped strip. This was not preceded by the usual negotiations for purchase by agreement. Both works schelne and compulsory purchase order were subject to mmisterial confirmation after local publication and inquiry. In August 1962, well in advance of the inquiry, the council gave as its reasons for the compulsory purchase order: (a) that the consultiIlg eIlgineers had advised that it was essential that the whole land should be acqllired and it was doubtful whether sufficient facilities could be acqllired by negotiation; (b) that the title of part of the land nvas not clear and acquisition by agreement would be impossible. An offer by the two principal landowners to negotiate for the grant of easements was refused ill September.

At the twoZay inquiry in November 1962, oIlly the council's engineer and the consultant gave evidence for the council. The evidence of the objectors convinced the inspector that the COIDC98



C.L.J. Case and Comment 168

two reasons for the compulsory purchase were wrong. His report contained express findings of fact to this effect and he recommended that, although the proposed wvorks of coast protection were necessary, the compulsory purchase order was not necessary and should not be confirmed. Sevexl months later, the Minister confirmed both the works scheme and the compulsory purchase order, but

agreed that the paved access way was not justified. This decision appeared to be contrary to the inspector's findings of fact.

At this poitlt, the objectors had slx weeks in which to contest the validity of the scheme and the purchase order in the High Court.

If they did not do so, the scheme and the order would both be

statutorily protected from challenge m any court whatsoever. In fact, only the complllsory purchase order was challexlged (whether this was accidental or deliberate does not clearly appear). This

left the court with the further problem of reconciling a works scheme which by statute was beyond judicial renew with a

compulsory purchase order which had properly been challenged. In the High Court, where both Minister and council were repre-

sented, the only evidence given on behalf of the council was m an affldavit from its assistant solicitor. Salmon L.J., who had before bim a brief note of the inquary proceedillgs as well as the mspector's report and the Minister's decision, decided that the council had

acted in bad faith iIl seeking to acquire the whole of the land, since

the major part was required for a promenade, and he quashed the

compulsory purchase order. He would have quashed the works scheme if it had been open to him to do so as the council had never

considered the essential point of whether the scheme could be

carried out without compulsory powers ([1964] 1 W.L.R. 1295).

Shortly after this decision, a junior Minister admitted in Parliament that it had been a mistake to confirm the compulsory purchase order; this had been done on the strength of a legal opsion now shown to be wrong (260 H.L.Deb., cols. 437441, 989-960). But the Bognor Regis council continued the fight and made

additional correspondence available to the Court of Appeal ill an

attempt to coter the firlding of bad faith. By a majority the

court disallowed the appeal. Danckwerts L.J. said: " So far as

acquisition of the land . . . was concerned, it is plain that the dominant purposes of the proposed compulsory acquisition were

amenities for the public and ownership by the counciS and not coast

protection " ([1965] 1 W.L.R. 7s5 at 778G). He also found that the

council had comTnitted a nllmber of other errors which would have ntisted the works scheme by reason of failure to observe the requirements of the 1949 Act. Davies LJ. held that the works sebeme was bad, because it did not appear to the council that it



164 The Cambndge Law Journal [1965]

could not be camed out except with compulsory powers, and " the invalidity of the works scheme strikes at the root of the compulsory purcl}ase order " (p. 788EI-784A); in any elrent the compulsory purchase order " extends to and embraces land not required by the council for the purpose of carrying out coast protection work as defined (in the Act) " (p. 784F.) Lord Deening M.R. dissented. On his riew of the facts, the consulting engineer had recommended that all the disputed land should be bought; the Xnister's statement " There is no endence that the land could be acquired by agreement," was in his view corre*. In the absence of direct challenge, the court had to assume that the works scheme was valid. While accepting that compulsory purchase for ulterior pux- poses could be challenged, he considered that there were good reasons for acqiring the whole of the lalld and there was no evidence of any " promexlade " intentions. As the Minister had accepted that the larld was reasonably required for compulsory purchase, and it xvas not suggested that he was acting other than m good faith, the court could should not reject his decision. Later the same court refused the council leave to appeal to the House of Lords, when Danes L.J. felt that the ratepayers' mo:ney would be better spent on coast protection rather than litigation, (The Times, May 18, 1965, where the report appropriately appears two columns from a head- line, " Bognor potlls amid tension: Conflicts at the Town Hall.")

Without entering into the detailed points of interpretation arising under the Act of 1949, a few general observations may be made.

(a) Notwithstandillg the statutory bar on questioning the validity of the works scheme no less than three out of the four judges involved did in fact enter on this illquiry, even though it seems that the compulsory purchase order could have been quashed without this. Such robust Judicial ability to ignore Parliament's exclusion of judicial review is probably best explained by the special circumstances of this case and could hardly be relied on in future to overcome or by-pass the statutory bar.

(b) As is customary when compulsory purchase orders are challenged under the six-week procedure, only affidavit elridence was before the court, and, in the Court of Appeal, additional correspondence. It should be remembered that review proceedings in the High Court have essentially different objects from those of the public inquiry. Where issues of fact, motivation a.nd intention are in dispute (and the division of opinion within l;he Court of Appenl bears out that this was so here) full endence from the offlcials and councillors concerned, if necessary given orally and subject to cross- exatnination, seems desirable. In the absence of such endence, we



C.L.J. Case and Cornment 16S

still do not how the true reasons for the council's policy. What,

for example, was said at the cntical committee meeting on Novem-

ber 27, 1961, when the amended scheme was approved ?

(c) This case reinforces the principle that public autiorities must

be able to gsse proper legal authority for their actions at the time of

acting and are not allowed the benefit of hindsight. (In this respect

consider Att.-Gen. v. De Keyser's Royal Hotel Co. [1920] A.C

s08.) Under t2}e Coast Protection Act, 1949 there are powers

of purchasing land benefited by defence works, of purchasing land

needed for access purposes, and of using land acquired for coast

protection for incidental entertainment and pleasure purposes.

With careful legal guidance at the time, the council could properly

have achieved for the public benefit what here seemed to be improper

objects. This would have also meant that public attention would

much earlier have been drawn to the real rllatters m dispute. In

the actual course adopted the council and its officers must be

criticised for inability to handle the fairly complex procedures of

the 1949 Act, as well as for over-sealousness and an unwilligness

to expose the true issues to public discussion. (d) The built-in safeguard agaiIlst errors of t}}is kmd, namely,

the public inquiry prcxcedure, publicatson of the inspector's report

and a reasoned Ministerss decision, succeeded in ventHating some of

the true issues but broke dosvll at the crucial point of the Minister's

decision. Cases of such failure may be infrequent, but when they

occur, gieren our ersting constitutional institutions, the possibility

of challenge iIl the courts seems a surer safeguard than the principle

of miIlisterial responsibility Here it was the judicial decision

wvhich drew from the Minister an acknowledgment in Parliament

that a mistake had been made. (e) This case raises agam the problem of locatiIlg the exact

boundary between matters of jurisdiction and matters of merits.

The allegation of invalidity arose through weak and ineSiciellt

administrative decisions. Lord Denning's position, that the court

should not reject the Minister's opmioIl that all the disputed land

was reasonably required for coas$ protection (p. 772E) is one which

would leave the High Court with nrtually no powers of renew

except in cases of bad faith on the part of the Minister. The

difficulty of extracting a clear concept of " validity " from judicial

decisions in cases such as this, where the right to challenge admini-

strative action on the ground of validity is exercised, leaves wide

open for consideration the appropriate method of achieving due

control of administrative conduct. One suspects that the Conseil

d'Etat would have articulated more clearly than the Court of Appeal

did here the principles on which the admmistrative acts in question



166 166 The Cambridge Law Jourrwal The Cambridge Law Jourrwal [1965] [1965]

should be condemned. Even assuming that the enstence of a udicial remedy would not have prevented him from acting, the

proposed Parliamentary Commissioner for Administration would have been powerless to quash the compulsory purchase order and would also have been quite ineffective unless his sphere of investigation included both central and local government.

A. W. BRAI)LEY.

INTERNA=ONAL LAW JURI8DICTION OF INrERNATIONAL COURT OF JUSTICE- PROTECTION OF SEAREEOLDERS IN FOREIGN COMP5r

IN 1964, the International Court of Justice (I.C.J.) gave judgment on the preliminary objections raised by the Government of Spain in the case brought against her by the Government of Belgium respecting the Barcelona TractioIl, Light and Power Co. Ltd. (I.C.J.Rep., 1964, 6). The case concerned el complaint by the Belgian Government of injury and damage, by a(lministrative and judicial proceedings in SpaiIl which amounted to a denial of justice, to Belgian interests ill a company registered in Canada. Four prelimiIlary objectioIls were raised by the Spanish Government; by a majority, the Court rejected the first and second objections and joined the third and fourth to the merits of the case.

The Belgian Government had previously begun proceedings against the Spanish Government m 1958, which proceedings bad been discontinued in 1961, as pertted by Article 69 (2) of the Rules of the Court. It was accordingly argued by Spain, as Srst preliary objection, that the Court was incompetent later to deal with the matter. The Court was of opinion that since " gig of notice of discontinuance is a procedural and, so to speak, ' neutral ' act, tbe real significance of which must be sought in the attendant circumstances and . . . in the absence of express renunciation of any further right of action is inconc:lusive," the onus of proof of renunciation by Belgium of her right; to reopen the case was upon Spain. It was averred, inter alia, by the Spanish Govern- ment, first, that agreement had been reached between the parties whereby the Belgian Government renounced all right to pursue the matter further and, secondly, that the Belgian Government was in any event by its condllet precluded from reopening the proceedings. The Court, however, held that since the discontinuance had been brought about largely through representations made by the company itself, it saw " no reason to depart from the general rule that, in relation to an understanditlg said to exist between States parties to a litigation before it, and to sffect their rights in that litigation, it can only take account of the acts and

should be condemned. Even assuming that the enstence of a udicial remedy would not have prevented him from acting, the

proposed Parliamentary Commissioner for Administration would have been powerless to quash the compulsory purchase order and would also have been quite ineffective unless his sphere of investigation included both central and local government.

A. W. BRAI)LEY.

INTERNA=ONAL LAW JURI8DICTION OF INrERNATIONAL COURT OF JUSTICE- PROTECTION OF SEAREEOLDERS IN FOREIGN COMP5r

IN 1964, the International Court of Justice (I.C.J.) gave judgment on the preliminary objections raised by the Government of Spain in the case brought against her by the Government of Belgium respecting the Barcelona TractioIl, Light and Power Co. Ltd. (I.C.J.Rep., 1964, 6). The case concerned el complaint by the Belgian Government of injury and damage, by a(lministrative and judicial proceedings in SpaiIl which amounted to a denial of justice, to Belgian interests ill a company registered in Canada. Four prelimiIlary objectioIls were raised by the Spanish Government; by a majority, the Court rejected the first and second objections and joined the third and fourth to the merits of the case.

The Belgian Government had previously begun proceedings against the Spanish Government m 1958, which proceedings bad been discontinued in 1961, as pertted by Article 69 (2) of the Rules of the Court. It was accordingly argued by Spain, as Srst preliary objection, that the Court was incompetent later to deal with the matter. The Court was of opinion that since " gig of notice of discontinuance is a procedural and, so to speak, ' neutral ' act, tbe real significance of which must be sought in the attendant circumstances and . . . in the absence of express renunciation of any further right of action is inconc:lusive," the onus of proof of renunciation by Belgium of her right; to reopen the case was upon Spain. It was averred, inter alia, by the Spanish Govern- ment, first, that agreement had been reached between the parties whereby the Belgian Government renounced all right to pursue the matter further and, secondly, that the Belgian Government was in any event by its condllet precluded from reopening the proceedings. The Court, however, held that since the discontinuance had been brought about largely through representations made by the company itself, it saw " no reason to depart from the general rule that, in relation to an understanditlg said to exist between States parties to a litigation before it, and to sffect their rights in that litigation, it can only take account of the acts and



Documents

Judicial Review of Compulsory Purchase