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England and Wales Lands Tribunal
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Cite as:  EWLands ACQ_125_2000
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 EWLands ACQ_125_2000 (05 July 2001)
LANDS TRIBUNAL ACT 1949
COMPENSATION - preliminary issue - disturbance payment Land Compensation Act 1973 s 37 business premises acquired by authority with compulsory purchase powers land later developed by company with lease from authority entitlement to compensation under Landlord and Tenant Act 1954 s 37 whether such entitlement precludes compensation under 1973 Act s 37(1)(a) whether fact that development not carried out by authority precludes compensation under s 37(1)(c) held compensation under s 37(1)(a) not precluded but no entitlement under s 37(1)(c)
IN THE MATTER of a NOTICE OF REFERENCE
BETWEEN GEORGE EVIS
GODFREY RICHARD SMITH
COMMISSION FOR NEW TOWNS Compensating
Re: 4-5 Cargo Fleet Lane Industrial Estate,
Before: The President
Sitting at 48/49 Chancery Lane, London WC2A 1JR
on 28 June 2001
The following cases are referred to in this decision:
Cramas Properties Ltd v Connaught Fur Trimmings Ltd  1 WLR 892
Selborne (Gowns) Ltd v Ilford Corporation (1962) 13 P & CR 350
Prasad v Wolverhampton BC  1 EGLR 10
Greater London Council v Holmes  1 QB 989
The following additional cases were referred to in argument:
Syers v Metropolitan Board of Works (1877) 36 LT 277
Wrexham Maelor BC v Macdougall  2 EGLR 23
Sheffield Development Corporation v Glossop Sectional Buildings Ltd  2 EGLR 29
Mills and Allen Ltd v Commission for New Towns (LCA/144/2000, unreported)
Mr A Winney with permission of the Tribunal for the claimants
Martin Rodger instructed by Dewar Hogan for the compensating authority
DECISION ON PRELIMINARY ISSUES
"that on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding or part thereof and that he could not reasonably do so without obtaining possession of the holding."
Subsequently the corporation withdrew its opposition to renewal and on 18 August 1995 it offered new leases. The claimants applied for new tenancies.
"37 Disturbance payments for persons without compensatable interests
(1) Where a person is displaced from any land in consequence of
(a) the acquisition of the land by an authority possessing compulsory purchase powers;
(b) the making or acceptance of a housing order or undertaking in respect of a house or building on the land;
(c) where the land has been previously acquired by an authority possessing compulsory purchase powers or appropriated by a local authority and is for the time being held by the authority for the purposes for which it was acquired or appropriated, the carrying out of any improvement to a house or building on the land or of redevelopment on the land;
(d) the carrying out of any improvement to a house or building on the land or of redevelopment on the land by a housing association which has previously acquired the land and at the date of the displacement is a registered social landlord within the meaning of the Housing Act 1985 (see section 5(4) and (5) of that Act);
he shall, subject to the provisions of this section, be entitled to receive a payment (hereafter referred to as a 'disturbance payment') from
(i) where paragraph (a) above applies, the acquiring authority;
(ii) where paragraph (b) above applies, the authority who made the order, passed the resolution, accepted the undertaking or served the notice;
(iii) where paragraph (c) above applies, the authority carrying out the improvement or redevelopment; and
(iv) where paragraph (d) above applies, the housing association carrying out the improvement or redevelopment.
(2) A person shall not be entitled to a disturbance payment
(a) in any case, unless he is in lawful possession of the land from which he is displaced;
(b) in a case within subsection (1)(a) above, unless either
(i) he has no interest in the land for the acquisition or extinguishment of which he is (or if the acquisition or extinguishment were compulsory would be) entitled to compensation under any other enactment
(3) For the purposes of subsection (1) above a person shall not be treated as displaced in consequence of any such acquisition improvement or redevelopment as is mentioned in paragraph (a), (c) or (d) of that subsection unless he was in lawful possession of the land
(a) in the case of land acquired under compulsory purchase order, at the time when notice was first published of the making of the compulsory purchase order prior to its submissions for confirmation or, where the order did not require confirmation, of the preparation of the order in draft;
(b) in the case of land acquired under an Act specifying the land as subject to compulsory acquisition, at the time when the provisions of the Bill for that Act specifying the land were first published;
(c) in the case of land acquired by agreement, at the time when the agreement was made;
and a person shall not be treated as displaced in consequence of any such order, undertaking or improvement notice as is mentioned in paragraph (b) of that subsection unless he was in lawful possession as aforesaid at the time when the order was made, the undertaking was accepted or the notice was served.
(4) Where a person is displaced from land in circumstances such that, apart from this subsection, he would be entitled to a disturbance payment from any authority and also to compensation from that authority under section 37 of the Landlord and Tenant Act 1954 (compensation from landlord where order for new tenancy of business premises precluded on certain grounds) he shall be entitled, at his option, to one or the other but not to both.
(5) Where a person is displaced from any land as mentioned in subsection (1) above but is not entitled, as against the authority there mentioned, to a disturbance payment or to compensation for disturbance under any other enactment the authority may, if they think fit, make a payment to him determined in accordance with section 38(1) to (3) below."
"(1) Where on the making of an application under section 24 of this Act the court is precluded (whether by subsection (1) or subsection (2) of section 31 of this Act) from making an order for the grant of a new tenancy by reason of any of the grounds specified in paragraphs (e), (f) and (g) of subsection (1) of section 30 of this Act and not of any grounds specified in any other paragraph of that subsection, or where no other ground is specified in the landlord's notice under section 25 of this Act or, as the case may be, under section 26(6) thereof, than these specified in the said paragraphs (e), (f) and (g) and either no application under the said section 24 is made or such an application is withdrawn, then, subject to the provisions of this Act, the tenant shall be entitled on quitting the holding to recover from the landlord by way of compensation an amount determined in accordance with the following provisions of this section."
(a) in relation to section 37(1)(a)
(i) Whether the effect of section 37(2)(b) of the 1973 Act is to preclude a disturbance payment under section 37(1)(a) where, as here, there is entitlement to compensation under the 1954 Act;
(ii) Whether the claimants were displaced from their premises in consequence of the acquisition of the land by the corporation;
(b) In relation to section 37 (i)(c)
(i) Whether at the date of displacement the land was "held" by the corporation within the meaning of that provision;
(ii) If so, whether it was held by the corporation for the purpose for which it was acquired;
(iii) If so, whether the claimants were displaced in consequence of the carrying out of redevelopment on the land.
"This section constitutes a new right to a payment in favour of persons displaced from land other than agricultural land. The claimant must have been in lawful possession of the land, but need not have had any further interest in it. The payment is, in fact intended primarily to benefit those who do not otherwise qualify for compensation because they have no interest requiring to be purchased. It is also available to those whose compensation under existing legislation is limited to the value of the land as a cleared site."
Subsection (4) of section 37 requires a person who is displaced and who is entitled both to 1954 Act compensation from the authority and to a disturbance payment to opt between them. On the face of it that provision applies whether the circumstances of the displacement fall under (a), (b), (c) or (d) of subsection (1). There is no apparent reason why, if in the circumstances set out in (b), (c) and (d) a person should have a dual entitlement and should be able to opt between the two types of payment, he should be excluded from such an option where he is displaced by the acquisition of land by an authority possessing compulsory purchase powers but leaves his premises in circumstances that do not entitle him to section 20 compensation. Mr Rodger for his part was unable to suggest any rationale for such an exclusion.
"(iii) Where paragraph (c) above applies, the authority carrying out the improvement or redevelopment."
"That, however, does not dispose of the matter, because there remains the further question whether the displacement of the defendant was in fact consequence and [counsel for the authority] stresses these words of the carrying out of the development on the land by the plaintiffs. As he points out, the machinery of the Act is to enable the displaced person to obtain his home loss payment from the authority which carries out the redevelopment and from no one else. If therefore one finds that the defendant was displaced by something legitimately called 'redevelopment' one still has to find, before he establishes his claim, that that redevelopment was carried out by the plaintiffs."
(1) Disturbance payments under section 37(1)(a) of the Land Compensation Act 1973 are not precluded by the claimants' entitlement to compensation under section 37 of the Landlord and Tenant Act 1954.
(2) Neither claimant is entitled to a disturbance payment under section 37(1)(c) of the Land Compensation Act 1973.
DATED 5 July 2001
George Bartlett QC, President