In this case, the Deputy President of the Upper Tribunal Lands Chamber (Martin Rodger QC) considered the provisions of the Compulsory Purchase Act 1965 Schedule 2A and the Compulsory Purchase (Vesting Declarations) Act 1981 Schedule A1 concerning the 28 day timescale for service of a counter-notice to, respectively, a Notice to Treat or a General Vesting Declaration served pursuant to a Compulsory Purchase Order, by which counter-notice the landowner seeks to compel the acquiring authority to acquire the entirety of their land interest and not just that part to which the NTT / GVD relates.
The present case concerned the Saltley Business Park at Washwood Heath in Brimingham, where the Claimant occupied four buildings in connection with its business as a distributor of communications and security products. HS2 Limited, acting on behalf of the Secretary of State for Transport, sought to acquire the land on which one of those buildings was situated in connection with the construction of the London-Birmingham phase of HS2, relying on CPO powers conferred by the enabling legislation for that phase. The Claimant sought to require HS2 Limited/SST to acquire the entirety of its interest in the Business Park. After lengthy negotiations HS2 Ltd sent both an NTT and a GVD on the Claimant by registered post on 10 December 2017 (the use of both procedures was for the avoidance of doubt as to which one applied). They were signed for as received at the Claimant’s offices on 12 December 2017. However, the relevant individual at the Claimant’s offices (Mr Brookes) was away on business, and the envelopes containing these notices were therefore not opened until his return on 20 December 2017. The Claimant filed the counter-notices in mid-January 2018, over 28 days from when the NTT and GVD were received at the Claimant’s offices but under 28 days from when they were opened and thus from when the Claimant through Mr Brookes first had knowledge of the notices. HS2 / SST contended that in these circumstances the counter-notices were out of time and that the Tribunal had no jurisdiction to consider them.
The Deputy President held that:
- In relation to a counter-notice to a GVD, the proper interpretation of the relevant provisions of Schedule A1 of the 1981 Act is that the 28 day time limit starts on the day when the recipient of the GVD had actual knowledge of the GVD. On the facts of the case the counter-notice to the GVD had therefore been in time.
- In relation to a counter-notice to a NTT, the proper interpretation of the relevant provisions of Schedule 2A of the 1965 Act is that the 28 day time limit starts on the day when the NTT was served on the landowner. On the facts of this case, the counter-notice to the NTT was out of time.
- The relevant regime in the present case was that NTT regime and not the GVD regime as the Claimant’s interest was a “long tenancy about to expire” within the meaning of s.2(2) of the 1981 Act. This was because assumption made by s.2(2) that any claimant’s “option to renew” to a lease would be exercised did not include the rights conferred on business tenants by the Landlord and Tenant Act 1954.
- Read in context, the proper interpretation of the 28-day time limit in Schedule 2A of the 1965 Act was that an out of time counter-notice was invalid and that the Tribunal had no jurisdiction at all to consider it, regardless of the circumstances.
Charles Banner appeared for the Claimant, instructed by Bryan Cave Leighton Paisner LLP.