Anixter Ltd v the Secretary of State for Transport

A statutory definition of a long tenancy which is about to expire is a hard-edged question answered by reference to the contractual term granted and the period remaining at the vesting date. Statutory continuation of a protected business tenancy does not make that period indeterminate. Under Schedule 2A paragraph 5 to the Compulsory Purchase Act 1965, the 28-day counter-notice period begins when the notice to treat is served. Service occurs on delivery under the applicable service provisions, without a further requirement of actual knowledge. Article 6 permits a statutory time limit to be read down only exceptionally.

Anixter was the tenant of four business units. The acquiring authority required one unit for the HS2 railway scheme. HS2 served a notice to treat and, as a precaution, made a general vesting declaration. The notices were delivered to Anixter’s registered office on 12 December 2017, but were not opened until 20 December. Anixter served counter-notices on 10 January 2018.

The Upper Tribunal held that the tenancy was a long tenancy which was about to expire, that time under Schedule 2A to the Compulsory Purchase Act 1965 began on delivery of the notice to treat, and that it had no power to extend time: [2018] UKUT 405 (LC); [2019] 1 P & CR 16. The appeal concerned the meaning of the tenancy definition and whether actual knowledge was required before time began to run.

1. The appeal was dismissed unanimously. Lewison LJ gave the judgment, with McCombe and Dingemans LJJ agreeing.
2. For section 2(2) of the Compulsory Purchase (General Vesting Declarations) Act 1981, whether a tenancy is a long tenancy which is about to expire is a hard-edged property-law question. It is determined by the contractual term granted and the contractual period remaining at the vesting date. Statutory continuation under Part II of the Landlord and Tenant Act 1954 does not create an indeterminate period which must be assessed by prediction. The statutory assumptions concerning renewal and termination concern contractual options.
3. The court rejected the argument that the acquiring authority had to assess the likelihood and duration of continued business occupation. Such an approach would impose unacceptable uncertainty. The compensation provisions in section 47 of the Land Compensation Act 1973 require future continuation and renewal prospects to be considered in valuation, but that is distinct from identifying the interest to be acquired.
4. Under Schedule 2A paragraph 5 of the Compulsory Purchase Act 1965, time runs from the day on which the notice to treat was served. Section 30 of that Act applied the relevant service provisions. Under section 7 of the Interpretation Act 1978, service by post is effected on delivery, subject to the statutory presumption concerning ordinary delivery. Actual knowledge by the person responsible for the matter is not required.
5. The court permitted the new point on service to be raised. There is no general requirement that a new point be exceptional. The question depends on all relevant factors, including the nature of the point, the proceedings below and prejudice. The point was one of law, required no new evidence, and could be fairly addressed. There was no exceptional circumstance requiring the time limit to be read down under Article 6.

• Court of Appeal (Civil Division) dismissed the appeal: [2020] EWCA Civ 43.
• Upper Tribunal (Lands Chamber) held that the tenancy was a long tenancy which was about to expire, that time began on delivery of the notice to treat, and that it had no power to extend time: [2018] UKUT 405 (LC); [2019] 1 P & CR 16.