Lord Chancellor, R (on the application of) v Chief Land Registar

Schedule 2 to the Courts Act 2003 empowered the Lord Chancellor to transfer existing property, rights and liabilities connected with magistrates’ courts. It did not empower him to create new leases, because a transfer of property is legally distinct from the creation of a new estate in land. Nor did it permit the compulsory transfer of an entire freehold or leasehold building where only part was used as a magistrates’ court. The statutory language covered court accommodation and ancillary property rights, but did not extend to unrelated offices or residential accommodation. Clear words would have been required for such a far-reaching compulsory power, particularly in the absence of compensation provisions.

The Lord Chancellor sought declarations concerning the scope of his powers under Schedule 2 to the Courts Act 2003, following the abolition of magistrates’ courts committees. A transfer scheme purported to create 999-year leases of parts of buildings used as magistrates’ courts and alternatively sought to transfer entire buildings containing court accommodation together with unrelated offices or residential premises.

The Chief Land Registrar disputed the power to create the leases. The London Borough of Barking and Dagenham, whose building contained a magistrates’ court annexe and residential accommodation, disputed the power to transfer the entire freehold or leasehold interest. The court had to determine the true construction of Schedule 2.

1. New leases. The Lord Chancellor had no power under Schedule 2 to effect the grant of new leases of magistrates’ courts by responsible authorities. The statutory power concerned the transfer of existing property, rights and liabilities. It did not include the creation or grant of a new lease or other estate in land.

2. The word “property” was used in its legal, non-physical sense. The statutory context contrasted the transfer of property with the provision of court houses and accommodation under section 3 of the Courts Act 2003. A lease does not transfer the lessor’s rights; it creates an inconsistent right in the lessee and subjects the lessor’s rights to it. If Parliament had intended to authorise compulsory creation of leases and unilateral determination of their terms, express provision would have been required.

3. Entire buildings. Schedule 2 did not permit the Lord Chancellor to transfer the entirety of a local authority’s freehold or leasehold interest in a building where only part was occupied as a magistrates’ court. Paragraph 1(1)(b) required the property both to belong to the relevant authority immediately before the appointed day and to subsist for the specified court-related purposes.

4. The words concerning property subsisting “for the purposes of or in connection with” magistrates’ courts covered court accommodation, offices used in connection with it, common parts, access rights, rights of way, and ancillary rights concerning pipes and cables. They did not extend to accommodation having no meaningful connection with the court, such as unrelated residential premises. The absence of compensation for compulsory acquisition reinforced that construction: clear words would have been necessary before interpreting the Act as depriving local authorities of valuable property interests without compensation.

5. Paragraph 3(2) permitted the apportionment or division of property, rights and liabilities, but did not authorise the creation of lease-back arrangements. Declarations were therefore made that the Lord Chancellor lacked both claimed powers.