LANDS TRIBUNAL FOR NORTHERN IRELAND
LANDS TRIBUNAL AND COMPENSATION ACT (NORTHERN IRELAND) 1964
IN THE MATTER OF A REFERENCE
R/6/1974
BETWEEN
J & G HYDE LTD - CLAIMANT
AND
THE DEPARTMENT OF THE ENVIRONMENT FOR NORTHERN IRELAND - RESPONDENT
Lands Tribunal - Sir Frank Harrison MBE QC DL
Belfast - 22 nd May 1974
This was an application to fix a date, place and time of hearing for a reference to determine a dispute as to the amount of the purchase price to be paid pursuant to section 7(3) of the
Planning and Land Compensation Act (Northern Ireland) 1971 (hereinafter referred to as the
1971 Act) upon the ground that a blight notice had been duly served and no objection by way of counter-notice had been served under section 5 of the said Act.
The land relevant to the dispute was part of some 5.25 acres situated at Armagh Road,
Portadown and which had been, with other land, the subject of a planning application made on
22 nd November 1967 to the Ministry of Development under the Planning (General Interim
Development) Order (Northern Ireland 1944, the New Towns Act (Northern Ireland) 1965 and the New Town Designation Order (Northern Ireland) 1965. General permission for housing development was granted by the Ministry on 5 th March 1968 subject to two conditions namely:
"1. Permission does not extend to the area hatched in blue on the plan forwarded to you on
30 th January 1968 as it is within a reservation for the construction and landscaping of a major distributor road.
2. The submission of single acceptable access arrangements to Armagh Road, details of which should be discussed with Roads Branch of the Ministry and the Craigavon Planning
Office before the preparation of detailed plans."
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It was agreed that the Department of the Environment is the successor to the Ministry of
Development and as such is responsible for the payment of purchase money where the
Ministry of Development was deemed to have entered into a contract to purchase under section 7(1) of the 1971 Act. Under Part II of the Planning (Northern Ireland) Order 1972
(hereinafter referred to as the 1972 Order) the Ministry of Development became the overall planning authority for Northern Ireland in the place of the local planning authorities from the appointed day (1st October 1973). The 1972 Order was made on 1 st November 1972, and under Part VII Article 54 that Ministry obtained powers of compulsory acquisition over land for planning purposes in terms wide enough to include acquisition for road development. Under
Article 58 the Ministry was empowered to carry out any work on land acquired for planning purposes or to enter into an agreement with any person for the development of land so held, and "development" defined by Article 11 includes "engineering .... or other operations in, on, over or under land, or the making of any material change in the use of .... other land".
On 2 nd January 1973 the solicitors for the claimant wrote to the Ministry of Development stating
(inter alia) -
".... You will see that permission was excluded from an area hatched in blue on the plan.
Please let us know who is proposing to provide the road and to acquired the necessary land".
After an acknowledgement on 9 th January 1973 and a further reminder from the solicitors on
24 th January 1973, the Ministry of Development (Planning Branch) replied on 9 th February
1973 stating -
"This land is to be used for the Southern Distributor Road which is proposed by the
Craigavon Development Commission within 10/15 years and by that time the land will have been acquired by the Ministry of Development".
It was stated by the solicitor for the respondent that this letter was to be understood to convey the impending disappearance of the Craigavon Development Commission as part of the reorganisation of local government then due to take place on 1 st October 1973, and which in fact took place on that date.
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On 14 th March 1973, the solicitors for the claimant sent a blight notice in due form to the
Ministry of Development and a copy of the same to the Chief Estates Officer, Craigavon
Development Commission, together with a copy of the Ministry's above letter of 9 th February
1973.
The blight notice stated (inter alia) -
"Part of the hereditament is comprised in land of the description specified in para (d) of section 1(1) of the Act".
On 27 th March 1973 the Ministry returned the blight notice stating -
"As this is not a matter for the Ministry of Development you may wish to consider service of the Notice, returned herewith, on the Craigavon Development Commission".
On 29 th March 1973 the solicitors returned the blight notice to the Ministry pointing out that they had already sent a copy of the blight notice to the Craigavon Development Commission together with a copy of the Ministry's letter of 9 th February 1973.
On 4 th April 1973 the Ministry replied -
"As was pointed out in the Ministry's letter addressed to you on 9 th February last, the lands in question are to be used for the Southern Distributor Road. This is a project of the
Craigavon Development Commission and as the Commission will carry out their normal functions for some months yet the Blight Notice is returned herewith so that you may consider serving it on them".
On 6 th April 1973 the solicitors for the claimant again returned the blight notice to the Ministry of Development stating -
"We again return the Blight Notice as the information which you have already given to us is that it is your Ministry which proposes to acquire the land. If you wish to refer the matter to
Craigavon Development Commission, that is a matter for you, but the Blight Notice was originally sent to you on 14 th March".
On 14 th May 1973 the Ministry of Development acknowledged this last letter and advised that -
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".... the Notice has now been passed to the Craigavon Development Commission for attention".
No communication was received by the claimant's solicitors from the Craigavon Development
Commission and the interest (if any) of that body, which has since been dissolved, was not represented in these proceedings.
On 29 th May 1973 the Ministry of Development in answer to a letter dated 24 th May from the claimant's solicitor asking -
".... with whom our clients are to negotiate for the purchase of the land in question" replied as follows -
"Your letter of 24 th May addressed to this Ministry has been passed to the Craigavon
Development Commission for attention" and later on 13 th June 1973 in further reply stated (inter alia) -
"The position would appear to be:-
1. A Blight Notice could not be served on the Ministry who, not being the appropriate authority, therefore could not accept same.
2. The Craigavon Development Commission, appearing to be the appropriate authority, does not consider that a Blight Notice has been served on it to which it should issue a counter notice.
It is suggested that you take the matter up with the Commission".
Further correspondence ensued in the course of which the Ministry of Development stated that:
".... it is not prepared to accept that the document submitted with your letter of 4 th March last is a valid blight notice.
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None of the categories contained in Section 1 of the Planning and Land Compensation Act
(Northern Ireland) 1971 under which a valid blight notice could be issued, cover the land which is the subject of purported blight notice.
In the circumstances, therefore, the question of purchase negotiations, to which reference is made in your letter, does not arise".
On 22 nd February 1974 the claimant referred the dispute to the Tribunal under section 7 of the
1971 Act for the assessment of the purchase price.
T T Ferriss instructed by Bright, Thompson & Hare, Solicitors for the claimant submitted:-
1. The Ministry's letter of 9 th February 1973 gave the answer to the question who is proposing "to provide the road" by identifying the Ministry itself as having the power of acquisition after the Development Commission had been disbanded, and the intention to acquire the land for a road.
2. The appropriate authority as defined by section 10(1) of the 1971 Act was the authority by which by virtue of the circumstances in section 1 the relevant land was "liable to be acquired as mentioned in that section or is indicated as being proposed to be so acquired;
...." It thus was the authority with the power of acquisition for a section 1 purpose and which was pointed out as "the appropriate authority" for service under section 3.
3. The circumstances were clearly within section 1(1)(d) and the Ministry's intention to acquire for a road was sufficient to blight the land, and to found the notice. The requirement of a written notice and a map or plan were irrelevant where, as here, the
Ministry itself was both the acquiring and the planning authority.
4. An objection to the validity of a blight notice properly served could only be taken by counter-notice specifying grounds under section 5 of the 1971 Act. Even by consent, additional grounds cannot be added, see Essex County Council v Essex Congregational
Church Union [1963] AC 808. It is a proper objection under section 5(2)(a) that the land in question was outside the specified descriptions, or under section 5(2)(b) that the appropriate authority did not propose to acquire compulsorily, and as the definition of the appropriate authority was dependent on the liability of land to be compulsorily acquired, it
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followed that objection under section 5 might be taken on the ground that a particular authority having compulsory powers of acquisition in respect of land of a specified description had in fact no proposals for acquisition. This meant that the Legislature recognised that a claimant might, for want of knowledge of the internal workings of local and central Government, serve a blight notice on an authority having compulsory powers in respect of land apparently within the specified descriptions, or apparently within the ambit of proposals, only to discover that another authority was the true "appropriate authority".
The Ministry of Development should therefore have made objection under section 5(2)(a) or (b) and not having done so, now was deemed to have entered into a contract to purchase under section 7.
5. The Ministry of Development was estopped by its letter of 9 th February 1973 and its subsequent failure to indicate to the claimant which was the appropriate authority for service of the blight notice.
[In answer to the Tribunal, Miss O'Neill for the Department said that there was at the date of the blight notice (14 th March 1973) no "appropriate authority" for service.
6. The Ministry of Development by passing the blight notice to the Craigavon Development
Commission, made effective the service upon the Commission if the earlier service of a copy was ineffective, and if the Commission was the appropriate authority.
Miss O'Neill for the Department of the Environment submitted that:-
1. The Ministry of Development did not "propose to provide" any road within section 1(1)(d) in relation to the blue hatched area. This would require a Road Designation Order by some other Ministry and no such Order had been made.
2. There was thus no land within section 1(1)(d) and the Ministry was not the appropriate authority for the purpose of section 5(1).
3. This application to fix the date, time and place for hearing must therefore fail as there was no material proper to found the purported purchase notice.
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DECISION
This application, which was to fix a date, place and time of hearing for a reference under section 7(3) of the 1971 Act, developed into the discussion of a preliminary point of law which could more properly have been the subject of application under rule 45 of the Lands Tribunal
Rules (Northern Ireland) 1964.
The question was whether the Ministry of Development was "the appropriate authority" within the meaning of section 10(1) of the 1971 Act to be served with a blight notice dated 14 th March
1972, and to answer this question it is necessary to inquire whether the subject land was:-
".... by virtue of the circumstances described in section 1 .... liable to be acquired as mentioned in that section or .... indicated as being proposed to be so acquired".
The circumstances relied upon as causing the blight were contained in a statement by the
Ministry of Development in a letter of 9 th February 1973, answering an inquiry in a letter of 22 nd
January 1973 as to who was "proposing to provide the road and to acquire the necessary land", to the effect that -
"This land is to be used for the Southern Distributor Road which is proposed by the
Craigavon Development Commission within 10-15 years, and by that time the land will have been acquired by the Ministry of Development".
Under the New Towns Act (Northern Ireland) 1965 the Ministry of Development, as the authority responsible for designating an area for development as a New Town, had compulsory powers for the acquisition of the necessary land and had general control over the development functions of the New Town commissions, see sections 14 and 15 of the 1965 Act.
Under the 1972 Order the Ministry of Development became the planning authority for Northern
Ireland in the place of the local planning authorities, a function which it already had in respect of areas designated for new towns and which it had exercised in this case by its general permission for development of the subject land on 5 th March 1968.
The definition of "appropriate authority" in section 10(1) of the 1971 Act has two relevant components:
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(1) that the land was liable to be acquired or indicated as being proposed to be acquired by an authority
(2) by virtue of circumstances described in section 1.
As to (1) Clearly the Ministry by its letter of 9th February indicated its intention to acquire the land.
As to (2) There was on 9 th February 1973 an existing proposal to provide a road but it was by the Craigavon Development Commission and it seems that the Ministry of Development had in fact sufficient written notice of such intention together with a sufficient map or plan to identify the proposed route, as this point was not taken before the Tribunal, probably because of the close co-operation between the Commission and the Ministry as regards development of the new town. But by 9 th February 1973 it had become a matter of common knowledge by parliamentary debate and otherwise, that on the termination of the New Town Commissions in
Northern Ireland (of which Craigavon Development Commission was one) on 1 st October 1973, the Ministry of Development would succeed to the development functions of those
Commissions and thus become both the planning authority for Northern Ireland (under the
1972 Order) and the overall development authority under an Order for the dissolution of New
Town Commissions and transfer of functions, to be made by that Ministry.
That Order was in fact made on 26 th September 1973 (SR & O 357/1973) and by Article 4 the transfer of development functions (except industrial development functions) was made by the
Ministry to itself.
In the opinion of the Tribunal, the original proposal of the Craigavon Development Commission
(made before the planning permission of 5 th March 1968) had by 9th February 1973 become a proposal in which the Ministry of Development had a sufficient interest to enable that proposal to fall within the words of section 1(1)(d) of the 1971 Act, and perhaps the words in the letter of
9 th February 1973 indicating that the Ministry would be the acquiring authority for the land to be used for the proposed road are sufficient in themselves to connect the Ministry with the proposal to provide the road.
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There is however another simpler ground (which was not precisely argued) which the Tribunal considers might also support the view that the subject land falls within section 1(1)(d).
An authority is "appropriate" within section 10(1), if it is the authority by which land is liable to be acquired, or by which it is indicated as proposed for acquisition by virtue of circumstances described in section 1.
The liability of the land to be acquired, or the indication of a proposal to that effect must be found within the circumstances described in that section.
By 9 th February 1973 the Ministry of Development was under the 1972 Order due to become the overall planning authority for Northern Ireland and also the development authority (except as regards industrial development) with effect from the appointed day under the necessary transfer of functions order or orders, which it was empowered to make.
Clearly in the opinion of the Tribunal the Ministry's letter of 9 th February 1973 looked forward beyond the time when Craigavon Development Commission (and the other Development
Commissions) had been terminated by its order and expressed a quite firm planning and development proposal to acquire the subject land for the provision of a road under planning and development powers, which it was shortly to inherit.
In the opinion of the Tribunal these circumstances fall within the description in section 1(1)(d) as they conveyed what the Ministry as a planning and development authority proposed, namely to acquire land within 10-15 years for the provision of a road on land the subject of the claim.
The Tribunal is of the view that the Ministry of Development was by virtue of circumstances described in section 1(1)(d) the appropriate authority by which the subject land was liable to be acquired or indicated as being proposed to be acquired by virtue of circumstances within section 1(1)(d), and a date, place and time for hearing will now be fixed by the Registrar for the
Tribunal to hear any further dispute under section 7(3) of the 1971 Act as to the amount of the purchase price to be paid.
The procedural steps necessary for the exchange of expert evidence shall be completed by 1st
December 1974.
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After hearing the submissions of the solicitors for the parties the Tribunal reserves the question of costs.
ORDERS ACCORDINGLY
F A L HARRISON
7 th November 1974 LANDS TRIBUNAL FOR NORTHERN IRELAND
Appearances
Claimant - Mr T T Ferriss instructed by Messrs Bright, Thompson & Hare, Solicitors,
Portadown, Co Armagh.
Respondent - Miss R O'Neill, Solicitor, of the Department of the Environment for
Northern Ireland, Stormont, Belfast.
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