States Greffier v Les Pas Holdings Ltd (Waterfront Enterprise Board Intervening)

JurisdictionJersey
CourtRoyal Court
JudgeLe Quesne, Commr. and Jurats Herbert and Rumfitt:
Date22 July 1998
ROYAL COURT
Le Quesne, Commr. and Jurats Herbert and Rumfitt:

Miss S.C. Nicolle, Solicitor General, for the applicant;

J.D. Kelleher for the respondent;

W.J. Bailhache for the intervenor.

Cases cited:

(1) Burt v. States, 1996 JLR 1, followed.

(2) Prest v. Welsh Secy. (1982), 81 L.G.R. 193; 23 R. & V.R. 10; 266 E.G. 527; 126 Sol. Jo. 708, observations of Lord Denning, M.R. considered.

Additional cases cited by counsel:

Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223.

Bartrum v. Manurewa Borough Council, [1962] N.Z.L.R. 21.

De Rothschild & Eranda Herds Ltd. v. Transport Secy., [1989] 06 E.G. 123.

Gard v. Commissioners of Sewers of City of London (1885), 28 Ch. D. 486.

Hanks v. Minister of Housing & Local Govt., [1963] 1 Q.B. 999.

Lesquende Ltd. v. Planning & Environment Cttee., 1997 JLR 56.

Meravale Builders Ltd. v. Environment Secy. (1978), 36 P. & C.R. 87.

R. v. Inner London Education Auth., ex p. Westminster City Council, [1986] 1 W.L.R. 28.

Sadler v. Sheffield Corp., [1924] 1 Ch. 483.

Simpson v. South Staffordshire Waterworks Co. (1865), 34 L.J. Ch. 380.

Thompson v. Randwick Municipality Council (1950), 81 C.L.R. 87.

Victoria Sq. Property Co. Ltd. v. Southwark L.B.C., [1978] 1 W.L.R. 463.

Webb v. Minister of Housing & Local Govt., [1965] 1 W.L.R. 755.

Westminster (Mayor, &c.) v. London & N.W. Ry. Co., [1905] A.C. 426.

Legislation construed:

Compulsory Purchase of Land (Procedure) (Jersey) Law 1961, art. 3: The relevant terms of this article are set out at page 293, lines 21-29.

art. 4, as amended by the Compulsory Purchase of Land (Procedure) (Amendment) (Jersey) Law 1964, art. 1: The relevant terms of this article are set out at page 293, line 30 - page 294, line 12.

art. 4A, as added by the Compulsory Purchase of Land (Procedure) (Amendment No. 3) (Jersey) Law 1981, art. 2: The relevant terms of this article are set out at page 294, lines 13-26.

Housing (Jersey) Law 1949, art. 4(1): The relevant terms of this paragraph are set out at page 294, lines 32-35.

Island Planning (Jersey) Law 1964, art. 2, as amended by the Island Planning (Amendment No. 3) (Jersey) Law 1983, art. 3: The relevant terms of this article are set out at page 293, lines 5-17.

art. 4(1): The relevant terms of this paragraph are set out at page 292, line 43 - page 293, line 3.

Planning Law—compulsory purchase—permitted purposes—unnecessary that purchase under Island Planning (Jersey) Law 1964, art. 4(1) expressed in exact terms set out in art. 2—art. 4(1) controls permitted purposes and not language in which expressed

Planning Law—compulsory purchase—permitted purposes—States' decision to purchase land compulsorily under Island Planning (Jersey) Law 1964, art. 4(1) for proper purpose if, e.g. considered preferable to co-ordinate development of area under single development agency in public control rather than to allow individual ad hoc development

Planning Law—compulsory purchase—disputed title—States' decision to purchase land compulsorily under Island Planning (Jersey) Law 1964, art. 4(1) where title disputed proper if, e.g. uncertainty over title prevents development according to States' plan

The States sought to aquire the respondent's land compulsorily for the purposes of a building development.

In 1983, 1989 and 1995, the States purported to purchase from the Crown parts of the foreshore at St. Helier, as it wished to develop and modernize the whole area. A report prepared for the States recommended that this could not be achieved on an ad hoc basis by individual developers but required an "integrated structure for organizing future development and area enhancement."

The respondent company also claimed to own the land in question and it therefore brought an action against the Crown and the States pour exhibiter titre, which by the time of the present proceedings had only reached the discovery stage. The respondent also had plans to develop those parts of the foreshore which it claimed to own; these plans were initially discussed with the States. Believing that the pending litigation was hampering the development work, which was to be carried out by the Waterfront Enterprise Board, a company wholly owned by the States and the intervenor in the present proceedings, the States proposed to purchase compulsorily whatever interest the respondent might have in the land. The Act of the States recited that compulsory purchase was necessary "for the purposes of giving effect to the development of the St. Helier Waterfront area in accordance with the said States' decisions and the redevelopment and modernization of the areas that are already developed."

The States Greffier gave notice of his intention to apply to the Royal Court for an order vesting the land in the public and at the hearing of that issue, the applicant applied for judicial review, seeking, inter alia, an injunction and sought to adjourn the matter until it had had time to prepare its case. The Royal Court (Hamon, Deputy Bailiff and Jurats Potter and Quérée) refused to adjourn (reasons noted at 1998 JLR N-3) and the Court of Appeal (Harman, Southwell and Nutting, JJ.A.) dismissed the respondent's appeal against that decision (in proceedings reported at 1998 JLR 196). It was, however, agreed that at the hearing of the application for a vesting order, the respondent would be able to raise any matters it would have been able to raise in its judicial review application.

On the hearing of the vesting order application, the applicant submitted, inter alia, that (a) it appeared to the States that the land in question should be acquired by the public of Jersey as required by art. 4(1) of the Island Planning (Jersey) Law 1964, for a purpose permitted by art. 2, in particular, "(a) to provide for orderly planning in, and the comprehensive development of, land; [and] (b) to ensure that land is used in a manner serving the best interests of the community ..." and it was therefore appropriate to acquire the land according to the provisions of the Compulsory Purchase of Land (Procedure) (Jersey) Law 1961; (b) compulsory purchase was necessary to achieve these legitimate purposes because the area could not be comprehensively developed by individual developers; indeed, the development plans put forward by the respondent were inconsistent with the States' plans; (c) the existing uncertainty over title to the land made it difficult to enter into contracts with development companies and difficulties had already been encountered in the framing of leases and mortgages for tenants of proposed new housing in the development; and (d) the court should make an order under art. 4A(2) of the 1961 Law vesting the land in the public of the Island if it were satisfied that the provisions of the Law had been complied with, which they had.

The respondent admitted that the procedural requirements of the 1961 Law had been complied with but submitted, inter alia, that (a) it could not reasonably be said that it appeared to the States that compulsory purchase had been necessary within art. 4(1) of the Island Planning Law "for the purposes of giving effect to the development of the St. Helier Waterfront area in accordance with the said States' decisions and the redevelopment and modernization of the areas that are already developed" because the respondent had been willing to undertake development in conjunction with the States; furthermore, (b) there was no reason to suggest that the outstanding litigation was preventing the effective development of the area, particularly since no actual building work had yet started or was even imminent on the disputed land; (c) in any case, the Act of the States failed to express the purposes for which the land was to be acquired in the exact terms of art. 2 of the 1964 Law, which it had to do to be a valid purpose under the Law; (d) the compulsory purchase procedure provided by the 1961 Law was not available in the case of land over which title was disputed; (e) the real purposes of the States were, first, improperly to circumvent the respondent's action pour exhibiter titre, and, secondly, to ensure that as landowner, it obtained a financial return from the development, neither of which were valid purposes; and (f) the compulsory purchase would be prejudicial to the respondent in that it would prevent its benefiting from the development.

Held, ordering that title to the land be vested in the public:

(1) It was unnecessary that the Act of the States recite the purposes for which the land was to be compulsorily purchased in the precise terms set out in art. 2 of the Island Planning Law, since the purpose of art. 4 was to control those purposes and not to control the language in which they were expressed. Nor did that article preclude the obtaining of land to which the title was uncertain: there was no reason in principle why the land could not be compulsorily purchased, subject to the payment of compensation for whatever interest the owner was subsequently established to have had, as long as the land were sought for one of the permitted purposes (page 297, lines 8-29).

(2) The Act of the States was therefore prima facie a good exercise of administrative discretion and because it was not subject to appeal, it could only be attacked on the grounds that the decision was unreasonable in the light of the relevant matters of fact and law to be considered, that the States took into account matters they should not have or failed to consider matters they should have taken into account, or that the States' purpose or dominant purpose in making the decision was one which was not permitted by the Island Planning Law. In the present case, it could not be said to be unnecessary to acquire the land compulsorily in order to develop and modernize it because, in view of the comprehensive and co-ordinated nature of the proposed development, it was reasonable to decide that it...

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