Ford-Camber Limited v Deanminster Limited and another


Reference:
[2007] EWCA Civ 458, LTL 24 May 2007

Date:
24th May 2007

Court:
Court of Appeal

Comment:

The claimant had a right of way over a service road. The defendants asserted that they were entitled to obstruct the service road and prevent the exercise of the claimant’s right of way, by virtue of paragraph 7 of schedule 20 to the Local Government, Planning and Land Act 1980. That provision authorises the carrying out of building or other works on land which has “been acquired by” the Land Authority for Wales under section 104 of that Act, notwithstanding that they would interfere with an easement, so long as the works are done “in accordance with planning permission”.

The claimant brought proceedings in 2005 for an injunction restraining the threatened obstruction of its right of way, disputing that the proposed works would be “in accordance with planning permission.” In its grounds of claim as originally drafted, the claimant accepted that there had in 1995 been an acquisition of the relevant land by the Land Authority for Wales under section 104 of the 1980 Act. However, in the course of those proceedings, documents were disclosed which led the claimant to seek the court’s permission to amend its grounds of claim to withdraw that concession and allege instead that there had been no (or no valid) acquisition by the Land Authority for Wales within the meaning of the statute. Permission was refused at first instance. The claimant appealed to the Court of Appeal.


Held:

The appeal was dismissed. As a matter of statutory construction, the particular transactions which had taken place in 1995 did amount to an acquisition and disposal of the relevant land by the Land Authority for Wales within the meaning of sections 103 and 104 of the 1980 Act. Had that not been so, the claimant would not have been prevented from raising these arguments by the lapse of time since the transactions took place; whether the transactions had amounted to an acquisition was a question which could properly be raised in a private law action commenced before or after obstruction of the service road by a party claiming entitlement to rely on paragraph 7 of schedule 20 to the 1980 Act. However, other points which the claimant sought permission to take (that the transactions were not properly authorised by the Board of the Land Authority for Wales, or were vitiated by its taking a fee for participating) would have to have been raised promptly, by way of judicial review, if they were to be raised at all, even though the claimant had not until recently known the full facts.

Consideration was given by the Court of Appeal to the construction of the particular statutory provisions in the Local Government, Planning and Land Act 1980 relating to the acquisition and disposal powers of the Land Authority for Wales, and also to wider questions of the interface between public law and private law and the circumstances in which it may be an abuse of process to raise in other civil proceedings points which could have been taken earlier in judicial review proceedings.

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