Planning and Environment Committee v Lesquende Ltd

JurisdictionJersey
CourtCourt of Appeal
JudgeCollins, Harman and Southwell, JJ.A.:
Judgment Date13 February 1998
Date13 February 1998
COURT OF APPEAL
Collins, Harman and Southwell, JJ.A.:

W.J. Bailhache for the appellant;

M.M.G. Voisin for the respondent.

Cases cited:

(1) Cedars Rapids Mfg. & Power Co. v. Lacoste, [1914] A.C. 569 ([1914] UKPC 5); [1914-15] All E.R. Rep. 571; (1914), 110 L.T. 873; 30 T.L.R. 293; 83 L.J.P.C. 162, applied.

(2) Fraser v. City of Fraserville, [1917] A.C. 187 ([1917] UKPC 7); (1917), 116 L.T. 258; 33 T.L.R. 179; 86 L.J.P.C. 91, applied.

(3) Maori Trustee v. Ministry of Works, [1956] A.C. 1; [1958] 3 All E.R. 336; (1958), 102 Sol. Jo. 776, considered.

(4) Pointe Gourde Quarrying & Transp. Co. Ltd. v. Sub-Intendent of Crown Lands, [1947] A.C. 565 ([1947] UKPC 71); (1947), 63 T.L.R. 486, applied.

(5) South E. Ry. Co. & London County Council's Contract, In re, South E. Ry. Co. v. London County Council, [1915] 2 Ch. 252; (1915), 113 L.T. 392; 84 L.J. Ch. 756; 79 J.P. 545; sub nom. London County Council v. South E. Ry. Co., [1915] W.N. 206; 59 Sol. Jo. 508, considered.

(6) Vyricherla Narayana Gajapatiraju (Raja) v. Revenue Divisional Officer, Vizagapatam, [1939] A.C. 302 ([1939] UKPC 15); sub nom. Sri Raja Vyricherla Narayana Gajapatiraju Bahadur Garu v. Revenue Divisional Officer, Vizagapatam, [1939] 2 All E.R. 317; (1939), 83 Sol. Jo. 336, applied.

(7) Wilson v. Liverpool Corp., [1971] 1 W.L.R. 302; [1971] 1 All E.R. 628; (1970), 22 P. & C.R. 282; 114 Sol. Jo. 932, applied.

Additional case cited by counsel:

Melwood Units Pty. Ltd. v. Main Roads Commr., [1979] A.C. 426 ([1978] UKPC 10).

Legislation construed:

Compulsory Purchase of Land (Procedure) (Jersey) Law 1961, art. 7:

"(1) For the purpose of this Law, there shall be a Board to be known as 'the Board of Arbitrators' ... which shall consist of a Chairman and two other persons and which shall be constituted, as the need arises, in accordance with the provisions of Article 8 of this Law.

(2) The Superior Number of the Royal Court shall appoint at least six persons (not being either Advocates or Solicitors) to form a panel of persons who may be called on to serve as members of the Board.

(3) The constitution of the said panel may be reviewed from time to time and the Superior Number of the Royal Court may make such additions thereto or deletions therefrom as it considers necessary."

art. 8: "Where it is necessary to determine any question as to compensation ... the Greffier of the States shall make application to the Inferior Number of the Royal Court for an order that the question be referred to and determined by the arbitration of the Board and the Court shall appoint an Advocate or Solicitor as Chairman of the Board, and shall designate two persons from the panel appointed under paragraph (2) of Article 7 of this Law as the other members of the Board, for the purposes of the arbitration."

art. 9(1), as amended: The relevant terms of this paragraph are set out at page 89, lines 19-34.

Planning Law—compulsory purchase—settlement of price by arbitration —valuation on basis of hypothetical sale by willing seller, to reflect all attributes of land, e.g. potential for development, likelihood of obtaining planning permission—change in value due to scheme to be ignored but cannot ignore acquiring authority as potential buyer—re-zoning of land by States prior to compulsory purchase may be part of scheme to be ignored—matter of fact for Board to determine

Planning Law—compulsory purchase—settlement of price by arbitration —remitting matter of compensation to Board following judicial review—matter remitted to newly-constituted Board under Compulsory Purchase of Land (Procedure) (Jersey) Law 1961, arts. 7 and 8—argument on new grounds permissible

Planning Law—compulsory purchase—settlement of price by arbitration —preferable that disputes over Board's assessment of compensation settled using case stated procedure under Compulsory Purchase of Land (Procedure) (Jersey) Law 1961, art. 12, even though judicial review available

The respondent sought to challenge an award made in statutory arbitration proceedings concerning the compulsory purchase of land.

The respondent company owned land which was zoned as agricultural land for the purposes of the Island Plan adopted by the States pursuant to the Island Planning (Jersey) Law 1964. The respondent made a number of attempts to obtain planning permission, which were unsuccessful since they would have required re-zoning of the land for development. The States apparently recognized the need to develop that part of the Island for housing and subsequently re-zoned the land accordingly, and also decided to purchase it on behalf of the public of the Island.

The States therefore authorized the appellant Committee to negotiate a price but on the parties' failure to agree, the question was submitted to a Board of Arbitrators under the provisions of the Compulsory Purchase of Land (Procedure) (Jersey) Law 1961. Having found that it had to assess the value of the land under art. 9(1) of the 1961 Law on the basis of a hypothetical sale by a willing seller on the open market, with all its then attributes, including the likelihood of obtaining planning permission but disregarding any effects of the States' own development scheme, the Board held that it had to be assumed that the respondent would have been able to obtain planning permission for that scheme had the land remained in its ownership. The Board made its award accordingly, specifying a price substantially lower than that proposed by the respondent.

The respondent sought judicial review of the Board's decision. The Committee also sought to challenge the decision, although neither party requested the Board to state its award or any disputed question of law in the form of a special case for the opinion of the Royal Court under art. 12(1) of the 1961 Law. The Royal Court (Kempster, Commr. and Jurats Bonn and Jones) held that (a) although neither party had used the available case stated procedure, they were entitled to seek judicial review; and (b) the Board had erred in law in failing to consider all the attributes of the land when deciding its value at the date of the compulsory purchase, including the possibility of the respondent's obtaining planning permission, but ignoring the effects of the scheme for which the land had been compulsorily purchased. These proceedings are reported at 1997 JLR 56.

On appeal on issue (a), the Court of Appeal (Lord Carlisle of Bucklow, Gloster and Beloff, JJ.A.) held that the Royal Court had indeed had jurisdiction to conduct a judicial review, although it should have exercised its discretion not to invoke that jurisdiction because of the parties' non-use of the case stated procedure (in proceedings reported at 1998 JLR 1).

On appeal on issue (b), the appellant submitted, inter alia, that (i) the re-zoning had been a necessary and intrinsic part of the scheme for which the land had been compulsorily purchased and it was therefore clear that no reasonable Board could have come to the conclusion that the re-zoning should have had an effect on the land's value; and (ii) the decision should therefore be quashed and the question remitted to the same Board for it to determine the amount of compensation afresh and at a resumed hearing, the Board would be entitled to impose limits on the evidence presented by the respondent as to the land's value to avoid unnecessary waste of time and costs.

The respondent submitted in reply, inter alia, that (i) the re-zoning of the land by the States had been prior to and independent of the compulsory purchase and the Board had been entitled to find that it had had an effect on the compensation due; and (ii) the Board's decision on the ambit of the compulsory purchase scheme was a matter of fact which, by art. 12 of the 1961 Law, only it was entitled to determine.

The court also considered the nature and constitution of the Board of Arbitrators under arts. 7 and 8 of the 1961 Law.

Held, giving judgment as follows:

(1) The land was to be valued on the basis of a hypothetical sale on the open market by a willing seller at the date of its vesting in the acquiring authority. The value was to be assessed by reference to all its then attributes, including its potential for development and the possibility or probability of obtaining planning permission. Any change in value due solely to the scheme for which the land had been purchased compulsorily was to be ignored, although the Committee could not be ignored as a potential purchaser. Whether the re-zoning of the land had been an integral part of the scheme in the present case was a question of fact for the Board to decide and the court would accordingly make no finding on it. In so far as the Royal Court had given any directions to the Board on this question, it had been in error (page 93, lines 32-42; page 97, line 20 - page 98, line 14).

(2) There was no merit in the argument that at a new hearing, the Board should be able to limit the amount of new evidence put before it. By virtue of arts. 7 and 8 of the 1961 Law, the issues would be re-heard by a new Board, which might be differently constituted from the first and which would have to decide the issue of compensation afresh. It would therefore be open to the parties to argue their cases differently from the manner in which they had originally been argued (page 98, line 43 - page 99, line 25).

(3) Although the parties had been permitted to seek judicial review of the Board's decision despite the existence of the case...

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