Ipsofactoj.com: International Cases [2003] Part 7 Case 13 [PC]


THE PRIVY COUNCIL

(from the Court of Appeal, Trinidad & Tobago)

Coram

Blanchfield

- vs -

Attorney General

LORD NICHOLLS OF BIRKENHEAD

LORD MACKAY OF CLASHFERN

LORD HOBHOUSE OF WOODBOROUGH

LORD MILLETT

SIR CHRISTOPHER SLADE

22 JANUARY 2002


Judgment

Lord Millett

(delivered the Judgment of the Board)

  1. In the spring of 1941, when Trinidad was still a Crown Colony, Great Britain stood alone against the might of Nazi Germany. France had been defeated; Russia and the United States had not yet entered the war. The Battle of the Atlantic had scarcely begun, but Great Britain was already desperately short of shipping and other war material. On 27th March 1941 the Government of Great Britain entered into a treaty with the Government of the United States by which the United States agreed to supply Britain with destroyers and other naval and military equipment badly needed for the war effort. In return Great Britain agreed to grant the United States leases of land in Trinidad and elsewhere for use as military bases. The land in Trinidad was on the north-western peninsular of the island in the area of Chaguaramas. A draft of the proposed lease was annexed to the treaty. It was to be for a term of 99 years but subject to earlier determination by the United States by notice.

  2. In order to enable it to grant the lease the Crown proceeded to acquire the land compulsorily. Notice was published in the Royal Gazette on 22nd April 1941 in accordance with the provisions of the Land Acquisition Ordinances 1925-1941. (A second notice was published in December 1942 but it appears that this related to other land with which the present appeal is not concerned). The effect of the notice was to vest the land in the Crown with immediate effect. Although the records are incomplete, they appear to establish, as one would expect and was found by the Courts below, that compensation was agreed and duly paid to all the former owners in full satisfaction of their respective interests.

  3. The lease was signed on 22nd April 1941. The United States Government took possession of the land and established a military base there. The treaty was later replaced by a treaty between the United States and the Federation of the West Indies dated 10th February 1961. After the dissolution of the Federation its obligations under the treaty were assumed by the Government of Trinidad and Tobago. Trinidad and Tobago was granted independence in 1962 and became a Republic in 1976. Upon independence land in Trinidad previously vested in the Crown became vested in the Government of Trinidad and Tobago.

  4. On 31st December 1977, following the earlier closure of the base, the United States Government surrendered the lease to the Government of Trinidad and Tobago. By a vesting order made in 1974 under section 16 of the Chaguaramas Development Authority Act 1972 the Government transferred ownership of the land to the Chaguaramas Development Authority, a public body constituted under the Act and charged with the responsibility for developing the north west peninsular of Trinidad “in the interest of the People of Trinidad and Tobago”.

  5. The present proceedings were commenced in 1992 by way of motions for constitutional relief. The plaintiffs were descendants of landowners who had had their land compulsorily acquired in 1941. They sought declarations that the land in question had automatically reverted to them by operation of law in 1977 when the lease of the base was surrendered and the land was no longer required for the purpose for which it had been acquired.

  6. The Land Acquisition Ordinances of Trinidad and Tobago contain no express reverter clauses, and none can be implied. The plaintiffs claim that the land did not vest in the Crown for an estate in fee simple but for a determinable fee limited in its duration so that it automatically came to an end when the land ceased to be required for the purpose for which it was acquired. There was some debate below whether this purpose was to enable the United States to establish and maintain a military base or to enable the Crown to grant the lease. Their Lordships think that the latter is the more accurate formulation, but nothing turns on the distinction. If the plaintiffs’ contentions are correct, the Crown acquired an interest terminable on the expiry of the term granted by the lease or its sooner determination. This would be a surprising conclusion given that the former owners were presumably compensated on the basis that the Crown was acquiring a full freehold interest, but it appears to have the support of case law in the State of Georgia (see City of Atlanta v Fulton County [1954] 82 SE 2d. 850), and so calls for further consideration.

  7. At the outset a preliminary issue was raised: whether the subject land must be treated as having vested in the Crown under the Land Acquisition Ordinances 1925-1941 or under the Land Acquisition Ordinance 1941. The former Ordinances were in force on 22nd April 1941 when the notice was published in the Gazette and the land vested in the Crown. But the final determination and payment of compensation had not been completed by 20th September 1941 when the earlier Ordinances were repealed and replaced by the 1941 Ordinance. The plaintiffs contended that the land vested in the Crown under section 6 of the 1925-1941 Ordinances, while the Government contended (and the Courts below held) that for the purposes of this litigation the land must be taken to have vested in the Crown under section 5 of the 1941 Ordinance. The relevant difference is that section 6 of the 1925-1941 Ordinances provided that on publication of the relevant notice the land should “become vested in His Majesty the King”; whereas section 5 of the 1941 Ordinance provided that it should “vest absolutely in the Crown” (emphasis added).

  8. Their Lordships consider that the word “absolutely” in section 5 of the 1941 Ordinance does not bear the weight which the Government attached to it, and that the difference between the relevant provisions of the two Ordinances does not assist in the correct disposal of the present appeals. The issue has, however, been fully argued, and their Lordships will briefly indicate their views upon it.

  9. The question turns on true construction of the transitional provisions contained in section 1(2) of the 1941 Ordinance. This reads as follows:

    1.

    (2)

    Upon the coming into force of this Ordinance, the Land Acquisition Ordinance, as amended by the Land Acquisition (Amendment) Ordinance, 1941, shall be repealed:

    Provided that –

    (a)

    where any action under those Ordinances has been taken before the commencement of this Ordinance in relation to any land, and the acquisition of the land and the final determination and payment of any compensation in relation thereto have not been completed and made, or the acquisition has not been abandoned, before the commencement of this Ordinance, this Ordinance shall apply as though such action had been taken under this Ordinance.

  10. The Court of Appeal considered that the meaning of this provision was plain and unambiguous. Notice for the acquisition of the land under the 1925-1941 Ordinances was published before the commencement of the 1941 Ordinance and the acquisition of the land and the final determination and payment of compensation in relation thereto had not been completed and made, so the precondition for the application of section 1(2)(a) was satisfied. Accordingly the 1941 Ordinance applied as though such action (i.e. the action previously taken under the 1925-1941 Ordinances) had been taken under the 1941 Ordinance. Accordingly, the Court reasoned, the notice must be taken to have been published and the land must be taken to have vested in the Crown under the 1941 Ordinance. The contrary argument is that the question cannot be disposed of so easily, for this is not what the section says. It does not say that the action taken under the earlier Ordinances shall be deemed to have been taken under the 1941 Ordinance. It merely says that the 1941 Ordinance shall apply “as though” such action had been taken under it without deeming that it was so taken.

  11. These words conceal a possible ambiguity. The hypothesis (“as though such action had been taken under this Ordinance”) is perfectly clear, but the consequence (“this Ordinance shall apply”) is not. What is the subject-matter to which the 1941 Ordinance is to apply? Is it to apply to every action to acquire the land including action previously taken under the 1925-1941 Ordinances? Or is it to apply only to future actions taken after the commencement of the 1941 Ordinance? The plaintiffs contend that the latter is the right answer and that the earlier Ordinance continued to govern the vesting of the land in the Crown.

  12. The reason that transitional provisions were needed in the 1941 Ordinance to deal with the situation where land was already in course of acquisition when it came into force is that in their absence there would be an unfortunate lacuna in the legislation. Such an acquisition could not be completed under the 1925-1941 Ordinances because they had been repealed; and it could not be completed under the 1941 Ordinance because that Ordinance, not being retrospective, would only apply to future acquisitions, that is to say to acquisitions where the relevant notice was published after the commencement of the 1941 Ordinance. The lacuna was filled by section 1(2)(a) of the 1941 Ordinance.

  13. Their Lordships are very much aware that more than one view is possible as to the correct construction to be placed on the transitional provisions. On balance they prefer the view that the correct interpretation to be placed upon them is that legal effect is to be given to the earlier acts (i.e. the vesting of the land) as much as to the later acts (i.e. the assessment of compensation) as if all the acts had been taken under the 1941 Ordinance. This reading of the subsection achieves consistency within a single undivided legal scheme rather than providing for a division between two different schemes. Accordingly, as the Court of Appeal held, the land must be taken to have vested under Section 5 of the 1941 Ordinance. But their Lordships repeat that they do not consider this to be decisive: whichever Ordinance governs the vesting of the land, the answer to the plaintiffs' claim is the same.

  14. As their Lordships have already observed, in the absence of an express reverter clause in the enabling legislation or in the conveyance or order by which the land was conveyed to or vested in the acquiring authority, none can be implied. Consequently, where land compulsorily acquired becomes surplus to the requirements of the acquiring authority, there is no automatic reversion in favour of the original owners or their descendants: see Rowan-Robinson and Brand: Compulsory Purchase and Compensation (1995). In England the Lands Clauses Consolidation Act 1845 contained special provisions governing the disposal of surplus land (in sections 127 to 132) which were also incorporated in the Railway Clauses Consolidation Act 1845. Unless the land was situate in a town or built upon, it must be offered first to the owner of the land from which it had been severed or, failing that, to adjoining owners. If none of them wished to buy the land, it must be sold, failing which it vested in the owners of adjoining land.

  15. These provisions are virtually obsolete, since no equivalent provisions are contained in the Compulsory Purchase Act 1965 which governs the great majority of compulsory acquisitions in England today; and no corresponding provisions are to be found in the legislation of Trinidad and Tobago. But the inclusion of reverter provisions in the 1845 Acts is doubly significant.

    • First, it indicates the need for express provision to be made if there is to be a reverter.

    • Secondly, their terms are inconsistent with an automatic revesting of the land in the original owners on the determination of a limited interest in the acquiring authority, for the original owners are merely given a right to buy the land.

    Parliament cannot have intended them to pay for what they already owned.

  16. Express provision for reverter was also contained in the School Sites Act 1841, but this Act was not concerned with compulsory purchase and is of only marginal relevance. Nevertheless it confirms the rule that land conveyed for a particular purpose does not automatically revert to the grantor when the land ceases to be used for the purpose for which it was conveyed. Even though land be conveyed for a particular purpose, in the absence of express provision to the contrary it is taken to be conveyed in fee simple absolute and not for a determinable fee.

  17. Much assistance can, however, be derived from English cases which deal with the vesting of land in a local or highway authority for use as a street or highway. The statutory provisions in question contained no express provision for reverter; yet the cases indicate that the authority acquired only a fee simple determinable on the land ceasing to be used as a highway: see Coverdale v Charlton (1878), 4 QBD 104; Rolls v Vestry of St. George the Martyr, Southwark (1880), 14 ChD 785; Mayor etc. of Tunbridge Wells v Baird [1896] AC 434; Foley’s Charity Trustees v Dudley Corporation [1910] 1 KB 317; and Tithe Redemption Commission v Runcorn Urban District Council [1954] Ch 383. The plaintiffs relied strongly on these authorities, but their Lordships consider that, when properly understood, they support the Government’s case.

  18. What all these cases have in common is that the statute in question did not say that “the land” should vest in the highway or other authority but that “the street” should do so. Coverdale v Charlton held that these words had the effect of limiting the physical extent of the property which vested in the authority to the surface and the subsoil to such a depth as was necessary for the purpose of a street. The decision itself is somewhat unsatisfactory, but in Mayor of Tunbridge Wells v Baird the House of Lords confirmed that the statutory vesting of a “street” vested “such property and such property only as is necessary for the control, protection or maintenance of the street as a highway for public use” per Lord Herschell at p. 442.

  19. In Rolls v Vestry of St. George the Martyr, Southwark it was held that such words also had the effect of limiting the period for which the property taken vested in the authority. The street was vested in the authority only so long as it was a street, and if it ceased to be a street by being stopped up or diverted the interest of the authority determined. Their Lordships think that this was an inevitable consequence of the decision in Coverdale v Charlton. If the authority acquired only so much of the land as was required for the purpose of a street, there was no physical content to its ownership when the land ceased to be used for a street.

  20. The effect of the two limitations, one physical and the other temporal, affecting the property taken by the highway authority has often been described as producing a determinable fee simple, or what Cozens-Hardy MR described in Foley’s Charity Trustees v Dudley Corporation as “a determinable statutory fee simple interest in such portion of the soil as is vested in [the highway authority] at all”. Whether such an estate is correctly described as a determinable fee may not matter. What does matter is that what brings the estate to an end is that, given the description of the property as a street, the estate no longer has any physical content once the street has ceased to be used as a highway.

  21. But all this depends on the fact that what the relevant statute vests in the authority is a “street” and not “land”. The Land Acquisition Ordinances of Trinidad and Tobago, however, authorise the compulsory acquisition of “land”, and under both Ordinances publication of the statutory notice had the effect of vesting in the Crown the “land” described in the notice. In their Lordships’ opinion this means the physical land and the totality of the estates and interests therein. Once the land had vested in the Crown and the owners had been compensated for their respective estates and interests, there was no reversionary or other interest left outstanding.

  22. The plaintiffs sought to rely in the alternative on what may conveniently be called “the Crichel Down Rules”. These are non-statutory arrangements which have evolved in the United Kingdom in a piecemeal fashion over time. Their essential feature is that, where a public authority wishes to dispose of land which is surplus to requirements, the former owners should, as a general rule, be given a first opportunity to repurchase the land previously owned by them, provided that it has not materially changed in the meantime. It may justly be said that elementary fairness demands no less. But two particular features of the arrangements should be noted. 

    • First, the obligation arises when the authority decides to dispose of the land, not when it ceases to be used for the original purpose for which it was acquired. In such a context the obligation arises only where the authority wishes to sell the land for private use and not where it wishes to retain the land or transfer it to another public body for public purposes.

    • Secondly, the former owners are to be given an opportunity to buy the land, not to have it restored to them for nothing.

    Given these features of the arrangements, they do not assist the plaintiffs in the present case. But their Lordships observe that the Crichel Down Rules are entirely inconsistent with any notion that land compulsorily acquired automatically revests in the original owners when it ceases to be needed for the purpose for which it was acquired.

  23. Since the plaintiffs have no estate or interest in the land, the Government has no need to rely on any statute of limitation. But their Lordships would observe that the Government’s reliance on the Public Authority Protection Act was in any event misplaced. The plaintiffs do not allege that the Government has committed any tortious or other civil wrong. Although the proceedings are brought by way of constitutional motion, in substance they represent an action of ejectment in which the plaintiffs demand that the Government yield up possession of land to which they claim title. If it had been necessary for the Government to rely on limitation, it would have had to prove that it had been in adverse possession of the land for the statutory period before the proceedings were commenced.

  24. The appeals must be dismissed with costs.


Cases

City of Atlanta v Fulton County [1954] 82 SE 2d. 850; Coverdale v Charlton (1878), 4 QBD 104; Rolls v Vestry of St. George the Martyr, Southwark (1880), 14 ChD 785; Mayor etc. of Tunbridge Wells v Baird [1896] AC 434; Foley’s Charity Trustees v Dudley Corporation [1910] 1 KB 317; Tithe Redemption Commission v Runcorn Urban District Council [1954] Ch 383

Legislations

Land Acquisition Ordinances 1925-1941: s.1

Authors and other references

Rowan-Robinson and Brand: Compulsory Purchase and Compensation (1995)


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