The King (Charlotte Elizabeth Hinds and Jane Hinds) v The Estates Commissioners. The King (Stephen Edward Collis) v Same

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 11 February 1909
• Court: King's Bench Division (Ireland)
• Date: 11 February 1909

The King (Charlotte Elizabeth Hinds and Jane Hinds)

and

The Estates Commissioners.

The King (Stephen Edward Collis)

and

Same (1).

K. B. Div.

CASES

DETERMINED BY

THE KING's BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1909.

Land purchase — Evicted tenants — Estates Commissioners — Voluntary offer — Compulsory purchase — Evicted Tenants (Ireland) Act, 1907 (7 Edw. 7, c. 56), sections 1 and 2.

The Estates Commissioners are not bound to make an independent offer to the owner, under section 1 of the Evicted Tenants (Ireland) Act, 1907, as a condition precedent to putting in operation the machinery for the acquisition of land compulsorily under section 2 of that Act.

Madden, J., diss.

In each of these two cases the prosecutors sought an absolute order that a prohibition do issue to the Estates Commissioners prohibiting them from continuing proceedings under section 2 of the Evicted Tenants (Ireland) Act, 1907, for the compulsory acquisition of land required for the purposes of the Act, on the ground that, not having made any such offer for the purchase of the lands as was prescribed in sect. 1 of the Act, they had no jurisdiction to proceed to the compulsory acquisition of the lands. The first-named case came before the Court upon notice of motion, served by leave of the Court, and the second was argued upon notice to make absolute a conditional order.

The following cases were cited:— Kemmis's Estate(1); Close's Estate(2); Metropolitan Asylum District v. Hill(3); White's Estate(4); Wilson's Estate(5); Guest v. Poole & Bournemouth Railway Co.(6); In re Uxbridge & Rickmansworth Railway Co.(7).

The Right Hon. J. H. Campbell, K.C., Moore, K.C., and Barry Meade, for Elizabeth and Jane Hinds.

Serjeant O'Connor, K.C., and Vincent Rice, for Collis.

Ronan, K.C., Jellett, K.C., De Renzy, and Babington, for the Estates Commissioners.

Wright, J.:—

The question raised here is, whether the Estates Commissioners were bound to make an offer to the owner to buy the lands under section 1 (1) of the Act of 1907 (7 Edward 7, c. 56), as a condition precedent to instituting proceedings under section 2 of that Act.

That question, in my opinion, depends mainly, if not entirely, upon those two sections; and while we have been referred in the argument to several sections of various Irish Land Acts, particularly the Act of 1903, and cases decided on them, the answer to the question must in the end be got mainly from these two sections of the Act of 1907, with any assistance that may be got from similar expressions in other Acts, as judicially interpreted. Section 1 declares that the Estates Commissioners shall have power to acquire lands compulsorily for the purposes of the Act if, to paraphrase the language of the section, efforts for a voluntary purchase have failed. What those purposes are is set out in sub-section 2 (a) and (b) of the same section, and sub-section 3 excludes from the Commissioners' power of compulsory acquisition tenanted lands, except in certain cases and under certain conditions, and lands subject to an annuity for the repayment of an advance under the Land Purchase Acts.

Section 2 is a very long section and contains very elaborate provisions for acquiring land.

Under that section the first step is the publication by the Commissioners of a notice in the Gazette, which is to be served upon the person appearing to them to be the owner of the land, and upon all persons known or believed by them to be interested therein. Thereupon, i.e. as soon as the notice has been published, their

inspectors can enter on the lands, and examine and report on them; and on consideration of their report and other matters as specified in sub-section 4, the Estates Commissioners may make an offer to the person appearing to them to be the owner to purchase the lands.

Is this offer, made at this stage, the same offer that is mentioned in section 1, or another and a later offer?

The difference in the language used in the two sections has been pointed out and commented on. Section 2 says the offer is to be “at such price as appears to them, prima facie, to be a reasonable price.” Section 1 says— “If they have offered a price which appears to them to represent the value.” I do not think there is here any difference of meaning. It seems to me to be only a difference of phrase or form of expression; the same thing is meant. I do not think the question raised can be determined by any such variance of words. Until the publication of notice in the Gazette the Commissioners have no power to send their inspectors on the lands, and cannot have a report as to the suitability of the land, its capacity, or the many other matters which ought to be before an intending purchaser for his guidance. Without such a report, which, prior to publication of this notice, cannot be got as a matter of right, they cannot be said to have before them adequate materials for making a real offer; it is difficult to see how they could name a price which would represent or approximate to the value of the land.

Section 1, as I have already stated, gives the Commissioners compulsory power to purchase, when negotiations for a free sale have failed; it defines the purposes for which land is to be acquired, and states what lands can, and what lands cannot, be compulsorily acquired.

The machinery of purchase is undoubtedly prescribed in section 2. Does it include both cases—free sales and compulsory purchase? The opening words of the section are certainly opposed to that view: “Where it is proposed that any land shall be acquired compulsorily under this Act”; just as in section 1 the making of an offer, and the refusal of that offer, would seem to be made conditions precedent to putting in force the powers of compulsory purchase.

Under the heading of section 2, to which I have just adverted, follow numerous sub-sections regulating the procedure. First of all, notice must be published in the Gazette, and a copy of such notice must be served upon the person appearing to the Commissioners to be the owner, and upon all persons known or believed by them to be interested in the lands; and if no petition is presented against the proposed acquisition within the prescribed time, the offer becomes accepted, and the purchase-money is paid into the Bank of Ireland.

There is no definition in the Act of the phrase, “person appearing to be the owner.” It closely resembles the language used in sect. 17 of the Land Purchase Act of 1903, which speaks of an intending vendor who gives prima facie evidence that he has power to sell, and satisfies the Land Commission that he has been in receipt of the rents and profits for the six immediately preceding years. In both sections the same intention is shown, namely, to effectuate a speedy sale, and convert the land into money, with as little loss of time as possible.

Sub-sections 7 and 8 and the following sub-sections of section 2 deal with the procedure to be taken where a petition against the acquisition of the lands has been presented, and where undoubtedly the lands are being compulsorily acquired. Is the land taken compulsorily where, after notice in the Gazette, an offer is made to the owner and is accepted? Or, does the acquisition become compulsory only after the offer has been refused, such refusal being evidenced by the presentation of a petition against the acquisition of the land?

We have been referred to two English cases:— Guest v. Poole and Bournemouth Railway Co.(1), in which it was held that a notice to treat under the Lands Clauses Act (8 Vict. c. 18) is not necessarily an exercise of the powers of the Act in relation to the compulsory taking of land:— “A notice to treat assented to by the landowner would not be an exercise of the compulsory powers; but a notice to treat, not assented to, in which case the Company would be placed in a situation of hostility to the landowner, would be” (per Brett, J., at p. 560); and in the later case,

In re Uxbridge and Rickmansworth Railway Co.(1), decided twenty years after, the law as to the effect of service of a notice to treat was regarded as settled by the first cited case. I refer in particular to the judgment of Lord Justice Cotton, at p. 563:— “Then has there been an exercise of the compulsory powers? It is very true the power to give notice to treat is included in that group of sections in the Lands Clauses Act, headed ‘And with respect to the purchase and taking of lands otherwise than by agreement, be it enacted as follows.’ Then there follows a direction that the promoters of the undertaking shall give a notice to treat in respect of the lands they require to take. But, although the direction to give notice to treat is included within the group of clauses, there may never be any step taken as regards the exercise of compulsory powers; because, if the Company have not got their capital subscribed they cannot exercise any compulsory powers, and the notice to treat, as was the case in one instance here, may be merely a step taken towards an agreement with the land-owner in order to ascertain whether he is willing to make the contract with the railway company, the company saying, ‘I want the land; will you sell it to us?’ In my opinion, it cannot be said that that alone is an exercise of compulsory powers.”

The sections there discussed were sections 16 and the following sections of the Lands Clauses Act (8 Vict. c. 18). Section 16 of that Act is prefaced by words certainly as strong as the prefatory words of section 2 of the Act of 1907, “and with respect to the purchase and taking of lands, otherwise than by agreement, be it enacted as follows”; section 18, which deals with the notice to treat, is, as Lord Justice Cotton points out, one of the group of sections so headed. Compare with this the introductory words of section 2 of the Act of 1907, “where it is proposed that any land...