Charlesworth, R (On the Application Of) v Crossrail Ltd

Under rule 7 of the Crichel Down rules, a voluntary transfer of land is assumed to have been made under threat of compulsory acquisition where the acquiring authority had compulsory powers, unless the landowner had offered the land for sale immediately before negotiations for acquisition. The assumption is a substantive and workable rule. It is not displaced by investigating the landowner’s subjective motives or by asserting that its application is unfair in an individual case. The exception concerns an offer made by the landowner to someone other than the acquiring authority before negotiations with that authority. A published policy may extend beyond the classic Crichel Down circumstances, including where the land has changed in character or a different former owner seeks an opportunity to benefit from redevelopment.

Crossrail acquired land at Woolwich for a subterranean station and associated works. Daniel Charlesworth held a qualifying long lease. Berkeley Fifty-Five Ltd acquired the freehold of the relevant land from the London Development Agency and shortly afterwards transferred it to Transport for London for £1 as part of arrangements connected with the station and a proposed redevelopment.

Crossrail’s C10 Land Disposal Policy supplemented the Crichel Down rules. It provided for a right to acquire surplus land at market value where a former owner or long leaseholder had a qualifying interest, but for open-market disposal where there were competing bids. The Administrative Court held that Berkeley Fifty-Five also had a qualifying interest and dismissed the challenge: [2018] EWHC 915 (Admin). The issue on appeal was whether Berkeley Fifty-Five’s transfer was made under threat of compulsory acquisition for the purposes of rule 7, or was excluded because the land had been offered for sale before the acquisition negotiations.

1. Appeal dismissed. Lang J’s conclusion that Berkeley Fifty-Five Ltd had a qualifying interest was upheld.
2. Rule 7 of the Crichel Down rules operates on the stated assumption. Where compulsory acquisition powers existed, a voluntary sale is treated as made under threat of compulsion unless the land was publicly or privately offered for sale immediately before the negotiations for acquisition. The form of the language, whether assumption, deeming, or treatment as a different state of affairs, does not alter that effect. The rule must be interpreted in light of its policy, but ordinary principles of interpretation continue to apply, consistently with Jenks v Dickinson [1997] STC 853.
3. The relevant offer must be made by the landowner who has been directly or indirectly expropriated, and must be made to someone other than the acquiring authority. The phrase “the negotiations” refers to negotiations with that authority; an offer to the authority cannot logically precede those negotiations. The earlier offer by the London Development Agency therefore did not prevent the assumption applying to Berkeley Fifty-Five. The approach was consistent with J D P Investments Ltd v Strathclyde Regional Council 1997 SLT 408.
4. The assumption is intended to avoid an investigation into a landowner’s subjective state of mind and to provide a clear, workable, predictable and consistent basis for identifying those entitled to a right of first refusal. Evidence that the acquisition was motivated by development objectives, or that the assumption produces a different result for another former owner, cannot displace it absent an overt indication that the landowner wished to sell independently of the compulsory purchase scheme.
5. Fairness did not justify a different result. Consistent application of a published policy is itself an aspect of fairness, and the C10 Land Disposal Policy was deliberately broader than the classic Crichel Down situation. It could apply where the land had materially changed and where the former owner would receive a commercial opportunity connected with a new development rather than regain the same property interest. The approach was applied consistently with R (Pritchett) v Crossrail Ltd [2017] EWCA Civ 317 at [35].
6. The court rejected the proposed distinction between a statutory deeming provision and an assumption, and the argument that the facts constituted an extraordinary case requiring disapplication. The appeal was dismissed.

• Court of Appeal (Civil Division): Appeal by Daniel Charlesworth dismissed. The court upheld the Administrative Court’s decision that Berkeley Fifty-Five Ltd had a qualifying interest for the purposes of the disposal policy.
• Queen’s Bench Division, Administrative Court: Lang J dismissed the challenge and held that Berkeley Fifty-Five Ltd had a qualifying interest: [2018] EWHC 915 (Admin).