Brunton et Al v Sub-intendent of Crown Lands
| Jurisdiction | Trinidad & Tobago |
| Judge | McShine, J.A.,Fraser, J.A.,Phillips, J.A. |
| Judgment Date | 20 December 1966 |
| Neutral Citation | TT 1966 CA 170 |
| Docket Number | No. 20 of 1963 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 20 December 1966 |
Court of Appeal
McShine, J.A.; Phillips, J.A.; Fraser, J.A.
No. 20 of 1963
A. Wharton, Q.C., and L. Seemungal - for the appellants
G. des Iles, Actg. Solicitor-General and C. Bernard for the respondent.
Compensation - Compulsory acquisition — Whether method of calculating developer's profit correct. — Governor-in-Council desired to acquire the lands of the appellants for public purposes and issued notices in that behalf in accordance with the Land Acquisition Ordinance. An agreement as to amount of compensation the appellant was entitled to could not be reached so a summons under s. 20 of the Ordinance was instituted by the respondent. Appellants awarded $299,837. Appellants have appealed against this award, arguing inter alia that the method of calculating the developers profit was wrong. — In considering the method of calculating a developer's profit it is essential to bear in mind from what point the calculations begin to be made. No developer should in any circumstances be expected to pay more than the highest offering price such as will allow him a reasonably anticipated cash profit. So, because the calculations begin with an assessment of the highest realisable value, the developer's profit must be taken as a percentage of that, but in the result it will work out as a higher percentage of his total outlay. Tribunal therefore governed itself in accordance with well established practice and has not misdirected itself or failed to take into account any of the appropriate considerations. Appeal accordingly dismissed with costs.
Administrative law - Compulsory acquisition — Compensation — Whether certain claims should be allowed for compensation. — Governor-in-Council desired to acquire the lands of the appellants for public purposes and issued notices in that behalf in accordance with the Land Acquisition Ordinance. Appellants claimed Tribunal failed to allow compensation for disturbances, loss of profit, severance and injurious affection, obsolescence of a 40 year old house, and the charges for bulldozing and survey fees. Appellant appealed against refusal. — It is not easy to appreciate in this case what exactly is the disturbance of which the appellants complain. In any event it would appear that the matter of compensation for disturbance was taken into account by the Tribunal when considering certain aspects of the case. Before an award for severance or other injurious affectation may be made the appellant's right to compensation therefor must be established. Appellants here failed to establish a right to compensation for loss resulting from severance or other injurious affection and also failed to prove that damage was sustained by the acquisition as would support such a claim to compensation. In addition claim for loss of profits was correctly disallowed by Tribunal. No principle of assessment was violated with regard to the deduction made for obsolescence. Neither was there any error in principle or departure from recognised methods of valuation in bringing charges for bulldozing and survey fees into the calculation of developers costs. Appeal accordingly dismissed.
Compulsory Acquisition - Compensation — Sections pertaining to compensation — Validity of “Residual Method” of valuation. “Governor-in-Council desired to acquire the lands of the appellants for public purposes and issued notices in that behalf in accordance with the Land Acquisition Ordinance. Appellants made claim to compensation for $1,802,039.61. An agreement as to amount of compensation could not be reached. Summons was issued at the instance of the respondent in accordance with s. 20 of the Ordinance. Order made by consent of the parties that claim to compensation should be determined by a Judge with assistance of 2 assessors named therein. Appellants awarded $299,837. Appellants have appealed against this award. “Sections 10, 11 and 12 of the Ordinance apply to the determination of compensation for the compulsory acquisition of land. The “Residual Method” of valuation adopted by the Tribunal violated no principle of assessment. Appeal accordingly dismissed with costs.
The award which is the subject of this appeal was made in assessment proceedings under the land Acquisition Ordinance, Cap. 27 No.10 (hereinafter called the Ordinance). The Governor-in-Council desired to acquire the lands of the appellants for public purposes, viz:- housing, and issued notices in that behalf in accordance with the Ordinance.
On November 5, 1959 under the provisions of sec.3 of the Ordinance a notification to that effect was published in the Royal Gazette as Government Notice No. 1808 of Vol.128 p.825. In the schedule to that notice a large parcel of land containing 698 acres more or less was out-lined; this parcel comprising three estates was also described as (1) “being part of the Richplain Estate now or formerly the property of Brunton”, (2) “the whole of Diamond Estate belonging now or formerly to Gcokool” and (3) “the whole of the property mown as Reunion Estate now or formerly the property of Dr. Omar Maraj”.
On August 5, 1960 a notice of Acquisition in compliance with sec.5 of the Ordinance was issued and published in the Royal Gazette of August 11, 1960. The acquisition for the public purpose of housing concerned four parcels of land containing in the aggregate 47A. OR 25P.. In the schedule to this “section 5” notice the parcels were described as follows:–
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(1) 38a. lr. 04p. part of the property known as Richplain Estate, belonging now or formerly to P.M. Brunton.
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(2) 2a. 3r. 13p. part of the property belonging now or formerly to Ramcharran.
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(3) 3a. Or. 32p. part of the property belonging now or formerly to D. Gomez & Ors.
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(4) 2a. 3r. 160. part of the property belonging now or formerly to W.T. Pollard.
Comment was made as to the lack of precision with which these four parcels were described, as there was no parcel belonging to Pollard on or contiguous or even near to the Richplain Estate. The Sub-Intendant in the exercise of his powers under sec.3 of the Ordinance, it is to be observed, can “enter upon and survey any lands in any locality to which the public purposes relate”, and it was said he ought therefore to have been more careful and precise in describing the lands it was proposed to acquire when the section 5 notice was to be published. That bearing this may have on the final assessment will be noticed later.
On August 16, 1960 the Sub-Intendant issued a notice in accordance with section 6 of the Ordinance requiring the appellants to state their respective interests in the lands containing 38A. 1R.O4P. described in this notice and to give full particulars of their claims to compensation in respect of those interests.
On August 4, 1961 the appellants made claim to compensation in the total sum of 81,802,039.61 for their interest in the lands comprising the said 38A. 1R. O4P. Agreement not having been reached between the parties, a summons in accordance with sec.20 of the Ordinance was issued on December 6, 1961 at the instance of the Sub-Intendant for the determination of the assessment of compensation before a Judge of the Supreme Court with or without assessors. On October 8, 1962 an order was made in Chambers by consent of the parties that the claim to compensation in this matter should be determined by a judge with the assistance of two assessors named therein.
On January 16, 1963 the tribunal commenced the hearing into this matter. On that date the claim to compensation by the appellants was amended and the value placed upon their interests was $657,039.18. It was the contention of the Sub-Intendant that the sum payable as compensation was $273,377 and no more. On February 28, 1963 the appellants were awarded the total sum of $299,837. The appellants being dissatisfied with this award have appealed to this Court on a number of grounds, but a number of these have been abandoned.
The Ordinance provides in sec.36 that –
“if any party to the proceedings is dissatisfied with any award made under the provisions of this Ordinance he may appeal therefrom on any point of law or on any principle of assessment, or on any question of title … “.
The rules that apply to the determination of compensation for the compulsory acquisition of land are contained in secs. 10, 11 and 12 of the Ordinance. It is by these rules that the tribunal, as is to be observed from its judgment, has governed itself in arriving at its award. The function of this Court is to inquire whether the tribunal has erred in any manner as outlined in sec.36. It is not competent for this Court to consider detailed criticisms of valuation. It is open to an appellant to raise a question of principle relating to the method of assessment and if the assessing Tribunal has erred on a matter of principle, then relief will be given.
The first matter which was argued in this appeal was that the parcel of land referred to as No.4 in the Section 5 notice of August 5, 1960 viz:- “2A. 3R. 16P. part of the property belonging now or formerly to W.T. Pollard”, was not compulsorily acquired and was accordingly wrongly brought into account in the final assessment. Unhappily no plan was published along with the sec.5 or sec.6 notices but the evidence established that the true property of Pollard was situated approximately one-half of a mile to the north of the lands of the appellants.
In the summons of December 6, 1961 it was stated that the appellants prior to August 11, 1960 (the date of the sec.5 notice) were “seized in Pee simple of a parcel of land containing 21A. 2R. 22P. more or less, situate at Diego Martin aforesaid being portion of all and singular that parcel of land containing 38A. 1R. 4P”. Of the 16A approximately there would be included the 2A. 3R. 16P. parcel said to belong to Pollard....
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