Sovmots Investments Ltd v Secretary of State for the Environment (Brompton Securities Ltd v Secretary of State for the Environment)

A statutory power compulsorily to acquire land does not ordinarily authorise an acquiring authority to compel the creation and grant of new rights over retained land. An expropriatory power must be conferred expressly or arise by an implication essential to giving the legislation sensible content.

Rules implying easements upon a voluntary conveyance, including the rule in Wheeldon v Burrows and section 62 of the Law of Property Act 1925, cannot supply the missing power. They depend upon grant, common intention or prior enjoyment. Nor does a statutory definition of land as including any right over land naturally extend to rights which do not yet exist.

Camden made a compulsory purchase order under Part V of the Housing Act 1957 to acquire 36 maisonettes forming the upper portion of the Centre Point development. The building had been designed as an interdependent unit. The maisonettes could not be used as housing after severance without rights over retained parts of the structure, including rights of support, services and access.

The Secretary of State confirmed the order following a public inquiry. Forbes J quashed it, but the Court of Appeal reversed his decision in [1976] 3 WLR 597. The principal issue before the House was whether the statutory power to acquire land or houses also authorised the compulsory creation and acquisition of the ancillary rights needed to use the maisonettes as dwellings.

1. Appeals allowed by a majority of four to one. Lord Wilberforce, Lord Edmund-Davies and Lord Keith of Kinkel held that Camden lacked power under Part V of the Housing Act 1957 to compel the creation and grant of the required rights over the retained building. Lord Fraser of Tullybelton agreed with Lord Keith. The Secretary of State had confirmed the order on the erroneous assumption that those rights would pass automatically. The order was therefore quashed.

2. Per Lord Wilberforce, an ordinary power to acquire land does not permit an authority to require a landowner to create a lesser interest or new easement over land which is not itself acquired. Expropriation cannot result merely from implication or the acquiring authority's intention. Specific statutory language is required.

3. Per Lord Wilberforce, Lord Edmund-Davies and Lord Keith, neither the first rule in Wheeldon v Burrows nor section 62 of the Law of Property Act 1925 applied. The former rests upon grant, common intention and the prohibition against derogating from a grant. Those foundations are absent from a compulsory taking. It also requires relevant use and enjoyment at the time of the grant, whereas Centre Point had remained unoccupied. Section 62 could not create the claimed rights where there had been no prior diversity of ownership or occupation.

4. Per Lord Keith, with Lord Fraser agreeing, compulsory-purchase enactments are strictly construed. An unexpressed acquisition power may arise by implication only where the statutory provisions would otherwise lack sensible content. Sections 96 and 97 provided ample scope for acquiring land and houses without implying a power to create easements over retained parts of a building.

5. Per Lord Wilberforce, Lord Edmund-Davies and Lord Keith, the definition of “land” in section 189(1) as including any right over land referred naturally to an existing right. The definition of “house”, including appurtenances belonging to or usually enjoyed with it, did not encompass rights which had never existed or been enjoyed separately from the owner's use of the undivided property.

6. Lord Keith further concluded, with Lord Fraser agreeing, that even if new rights were capable of compulsory acquisition, paragraph 2 of Schedule 1 to the Acquisition of Land (Authorisation Procedure) Act 1946 required them to be described in the order. Lord Edmund-Davies reached the same conclusion. Lord Wilberforce left that question open.

7. Lord Russell of Killowen dissented. He considered that the housing legislation implied a power to acquire rights objectively essential to using the acquired building for housing, and that such rights need not be specified in the order.

1. House of Lords: By a majority of four to one, allowed the conjoined appeals, reversed the Court of Appeal and restored Forbes J's order quashing the compulsory purchase order.
2. Court of Appeal: In [1976] 3 WLR 597, reversed Forbes J and upheld the Secretary of State's confirmation of the order.
3. High Court: Forbes J quashed the compulsory purchase order on 1 August 1975.