Ford-Camber Ltd v Deanminster Ltd & Anor

Paragraph 7 of Schedule 20 to the Local Government, Planning and Land Act 1980 can authorise interference with an easement where its statutory conditions are met. For registered land, acquisition is sufficient if the Authority becomes entitled to be registered as proprietor; beneficial ownership is irrelevant. The expression other persons means persons other than the Authority, so disposal back to the transferor is not excluded. A challenge that a statutory body’s transaction was unauthorised or pursued for an improper purpose is a public-law challenge. Raised years later in private litigation against successors, it may be an abuse of process. The appeal was dismissed.

The Claimant owned land served by a registered right of way over the Service Road. The Land Authority of Wales acquired the Phoenix site from Tesco and shortly afterwards transferred it back. The respondents, as successors in title, relied on paragraph 7 of Schedule 20 to the Local Government, Planning and Land Act 1980 to obstruct the route in accordance with planning permission, offering alternative access and statutory compensation.

Peter Smith J refused permission to amend the claim, holding that the proposed points had no reasonable prospect of success and were in any event too late: [2006] EWHC 1961 (Ch). The appeal concerned acquisition, statutory disposal powers, internal authorisation, alleged improper fees, sham transactions, and the effect of delay and public-law procedure.

The appeal was dismissed. Lord Justice Lloyd gave the judgment, with Lord Justices Rix and Toulson agreeing. The judge below was right to refuse permission to amend because none of the proposed points offered a reasonable prospect of success.

1. Whether the Authority had acquired the land, and whether Tesco was an eligible other person, were private-law questions. They could be raised in private litigation and were not barred merely because the Claimant had not challenged the matters earlier. The cause of action for interference with the right of way would arise on obstruction, subject to the Limitation Act.
2. Under sections 103 and 104 of the Local Government, Planning and Land Act 1980, the Authority acquired registered land when execution of the transfer made it entitled to registration as proprietor. Beneficial ownership was irrelevant. The duty to manage and turn to account land pending disposal depended on the circumstances and did not restrict the Authority’s acquisition and disposal powers.
3. The expression other persons in section 103 meant persons other than the Authority. The Act did not prevent acquisition from a person followed by disposal back to that person. The Authority’s Board resolution authorised the actual transaction, notwithstanding the change from TBI to Tesco and the fact that the Authority was not expected to undertake the development itself.
4. Challenges based on internal authorisation or an improper purpose were public-law challenges. The principles stated in [1993] AC 682 and [1999] 2 AC 143 applied. Although such a challenge may sometimes be raised in private proceedings, the court must consider abuse of process. The guidance in [1983] 2 AC 237, [1996] 1 WLR 48, [2000] 1 WLR 1988 and [2003] EWCA Civ 129 did not assist the Claimant because the challenge was made more than ten years later, the Authority was not a party, and judicial review had been the appropriate prompt remedy.
5. The court did not decide whether the Authority had power to charge the fees. Even assuming that point arguable, the transaction would not thereby be invalid. It would be necessary to show that the Authority entered into it for the collateral and improper purpose of obtaining the fees. That Wednesbury challenge was now barred as an abuse of process.
6. The alleged sham concerning obligations which were not intended to be performed did not make the acquisition and transfers shams. Unless the agreement or transfers themselves were shown to lack their intended legal effect, paragraph 7 retained its statutory operation. The references to [1984] AC 474 and [1989] QB 390 did not alter that conclusion.

• Court of Appeal (Civil Division): dismissed the appeal and upheld refusal of permission to amend.
• High Court of Justice, Chancery Division: Peter Smith J refused permission to amend the claim on grounds of lack of merit and delay: [2006] EWHC 1961 (Ch).