P and E v Lesquende Ltd

JurisdictionJersey
CourtRoyal Court
JudgeDeputy Bailiff
Judgment Date19 September 2003
Neutral Citation[2003] JRC 167
Date19 September 2003

[2003] JRC 167

ROYAL COURT

(Samedi Division)

Before:

M. C. St. J. Birt, Esq., Deputy Bailiff, sitting alone

In the Matter of a Case Stated Under Article 12 of the Compulsory Purchase of Land (Procedure) (Jersey) 1961

Between
The Planning & Environment Committee of the States of Jersey
Representor
and
(1) Lionel Read Q.C.
(2) D H Le Vesconte
(3) R V Perchard
(4) Lesquende Limited
Respondents

Advocate G Robinson for the Representor

Advocate M M G Voisin for the Fourth respondent

Authorities

Planning Committee v Lesquende [1998] JLR 85.

Compulsory Purchase of Land (Procedure) (Jersey) Law, 1961, Article 12.

Walters v States Housing Authority (23 rd July 1997) Guernsey Court of Appeal.

Edwards v Bairstow (1955) 3 All ER58.

Council of Civil Service Unions v Minister for the Civil Service (1984) 3 AllER 935 at 951.

Cedars Rapids Manufacturing & Power Company v Lacoste (1914) AC 569 at 573.

Wilson v Liverpool Corpoartion (1970) 1 WLR 302.

South Eastern Railway Company v Londo0n County Council (1915) 2 Ch. 252.

Fraser v City of Fraserville (1917) AC 187.

In Re Arbitration between Lucas and Chesterfield Gas & Water Board (1909) 1 KB 16.

Pointe Gourde Quarrying & Transport Co., Ltd v Superintendent of Crown Lands [1947] AC 565.

Birmingham District Council v Morris & Jacombs, Ltd [1997] 33 P & CR 27.

Planning & Environment Committee v Lesquende [1998] JLR 1

Lesquende v Planning & Environment Committee [1997] JLR 56.

Planning & Environment Committee v Lesquende [2003] JCA 021.

The First, Second and Third Respondents did not appear and were not represented

Deputy Bailiff

THE

1

The Court has before it a case stated under Article 12 of the Compulsory Purchase of Land (Procedure) (Jersey) 1961 (“the 1961 Law”) by a board of arbitrators appointed under that Law following an order made by this Court on 15th October 2002.

THE BACKGROUND
2

At the material time Lesquende Limited (“Lesquende”) owned certain land at Les Quennevais. It is not necessary to describe it in detail. The relevant part of Lesquende's land for the purposes of this hearing is that part known as Area 1. In November 1987 the States adopted the Island Plan. Various parts of Area 1 were comprised respectively in the Agricultural Priority Zone, the Special Landscape Area of the Agricultural Priority Zone, and the Green Zone. Before and after November 1987 Lesquende attempted to obtain consents for developments of various kinds in respect of various parts of Area 1 but none of them succeeded, no doubt because the application. would have involved rezoning. The existing zoning carried with it substantial restrictions on permitted use.

3

In November 1988 Lesquende applied for permission to develop Area 1 for early retirement homes and sheltered homes for the elderly. This application was refused in July 1989 but the Planning & Environment Committee (“the Committee”) recognised that this part of the land had a potential for Category A housing and would be better developed for that purpose in the public interest. The department was requested by the Committee to produce a draft report and proposition to the States on the basis that Area 1 be re-zoned for Category A housing so that the provision of houses for first time buyers could be more immediately satisfied.

4

On 31st July 1990 the States, adopting a proposition of the Committee, (a) agreed to re-zone Area 1 for Category A housing development; (b) agreed to the Committee, in the event of a proven need, allocating a suitable portion of Area 1, where appropriate, for small-scale community facilities, including accommodation and specialised facilities to meet the requirements of pre-school and primary school children and elderly and handicapped people; (c) authorised the Committee to negotiate with Lesquende for the purchase of the land; and (d) empowered the Committee to acquire the land by compulsory purchase in the event of no agreement being reached between the parties as to a fair and proper price for the purchase of the land.

5

The rezoning of Area 1 naturally had a legal effect, including its relevance to the proposed compulsory purchase of all the land. Once Area 1 was re-zoned for Category A housing, it was possible for Lesquende or any purchaser from Lesquende to seek planning and development consents for the construction of Category A housing. So the specific legal effect was, in terms of planning, an effect given by the Committee and the States, so to speak, with their planners' hats on. The rest of the proposition, as accepted by the States at the behest of the Committee, was with their acquiring authority's hat on. However, at the time, it was unlikely that Lesquende or any other private developer would have wished to build Category A housing because it was uneconomical to do so by reason of longstanding price controls and limits on States loans. This changed in 1991. In January 1991 price controls were removed and in November 1991 the limits on States loans were relaxed.

6

On 28th November 1991 the Committee adopted a development brief for the re-zoned part of the land as the basis for a master plan to be prepared by consultant architects. The Committee contemplated in this brief a mixed development of houses and flats together with community buildings.

7

The parties did not agree a price for the land and accordingly on 11th December 1992, on the application of the Committee, the Royal Court made an order vesting the land in the public of the island and ordered that the purchase price be determined by arbitration by a board of arbitrators in accordance with the provisions of the 1961 Law.

8

A board of arbitrators was appointed and on 2 nd February 1995 that board made its award. Lesquende subsequently instituted proceedings before the Royal Court (Commissioner Kempster Q.C.) seeking to judicially review the award of the board. One of the key matters for decision by the board was whether, in determining the price as at 11th December 1992 (being the date of the vesting order) it should take into account the fact that on 31st July 1990, namely two and a half years before the vesting date, Area 1 had been re-zoned by the States for Category A housing development. The Royal Court held that that rezoning should be taken into account and directed the board to do so. The Committee then appealed to the Court of Appeal.

9

The Court of Appeal ( [1998] JLR 85) allowed the Committee's appeal on the basis that it was a question of fact for the board of arbitrators to decide whether the rezoning was or was not part of the scheme and the Royal Court had therefore been wrong to direct the board that it was. The Court of Appeal ordered that the matter be referred completely afresh to a second board.

10

The Court of Appeal summarised the opposing submissions. The Committee contended that the rezoning of Area 1 was an essential part of the “scheme” for the purposes of which compulsory acquisition of the land was effected and that accordingly the rezoning had to be ignored by the board. In effect the Committee contended that the ‘scheme’ included everything in the States resolution of 31st July 1990 and, in particular, the rezoning of Area 1. Lesquende contended that the rezoning of Area 1 was an independent legal act giving rights and benefits to any owner of the land, independent of any proposals to acquire compulsorily the land. The Court of Appeal, in a judgment delivered by Southwell JA. summarised the submissions at 94 by saying:-

“There is clearly much to be said for the main contentions on either side on the question whether the rezoning in July 1990 was or was not part of the scheme. On the one hand the rezoning took place in July 1990, 2 1/2 years before the vesting in December 1992, and was therefore an attribute of the land during that period. On the other hand, the rezoning in July 1990 was in the context of a resolution of the States which contemplated compulsory acquisition and could at the least be said to be closely connected with the compulsory acquisition scheme.”

11

Having considered at some length the various cases on what is known as the Point Gourde principle (which I will consider in more detail later but which provides that one excludes from the valuation of the land any increase or decrease in value attributable solely to the existence of the scheme in question) Southwell J A summarised the legal position as follows at 97:-

“From Art.9 of the 1961 Law, to be applied or interpreted in the light of these authorities, I draw the following conclusions;

  • (a) the land taken is to be valued on the basis of a hypothetical open market sale by a willing seller at the date of vesting .

  • (b) The value of the land taken is to be assessed by reference to all its then attributes, both physical and legal, including its then potentialities for development, having regard to the assessment of the possibilities or probabilities of being permitted or otherwise able to develop the land .

  • (c) Insofar as the value of the land has been increased or decreased solely by reason of the existence of the scheme, undertaking or project for compulsory acquisition, that increase or decrease in value is to be left out of account .

  • (d) The Committee, although the acquiring authority, is not to be left out of account as a potential voluntary purchaser of the land .

  • (e) It is a question of fact, to be determined by the board, whether the rezoning was purely a part of the scheme (as the Committee contend) or was a factor having an existence independent of the scheme (as Lesquende contend) .

  • (f) Since the question in (e) is one of fact, not law, it is not open to the Royal Court or to this court to direct the board what answer should be given to this question”

In relation to the points at (e) and (f) Southwell J A went on to say on the following page:-

“………… I do not accept either...

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