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APPENDIX XX.

ARBITRATION AWARD AND HIGH COURT JUDGMENT IN CONNECTION WITH ACQUISITION OF LAND AT DUBLIN AIRPORT.

Secretary,

Committee of Public Accounts.

Vote for Aviation and Meteorological Services.

At the proceedings of the Committee on the 4th November, 1954, I undertook to furnish certain documents in connection with Paragraph 79 of the Report of the Comptroller and Auditor General. The following documents are attached:—

(1) Photostat copy of the Arbitrator’s award of 15th September, 1949.

(2) Copy of Judgment of the Hon. Mr. Justice Dixon of 14th November, 1951.

Department of Industry and Commerce.

12 November, 1954.

(1)

EIRE

AWARD OF ARBITRATOR.

In the Matter of

“THE ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT, 1919” “AIR NAVIGATION AND TRANSPORT ACT, 1936” AND “AIR NAVIGATION AND TRANSPORT (COMPULSORY ACQUISITION OF LAND) (NO. 1) ORDER, 1947.”

TO ALL TO WHOM these presents shall come, I, Lieutenant Colonel John Joseph Winters SEND GREETING: Whereas, the Minister for Industry and Commerce (hereinafter referred to as the Minister, required to purchase and take certain lands for the purpose of Improvement Schemes, made in pursuance of the above-mentioned Acts, and confirmed by the above-mentioned Orders which they were and are authorised by the said Acts and Orders to purchase and take, and as soon as practicable after the making of the said Order, caused to be made out and to be signed by their D. P. Shanagher and J. J. McElligott Maps made on the scale and framed in the manner prescribid by the above Acts and also Schedules of the Lands so required and proposed to be taken compulsorily (which lands are hereinafter referred to as the Scheduled Lands), together with the names of the Owners or reputed Owners, Lessees, or Reputed Lessees, or Occupiers of the said Lands respectively, so far as the same could be reasonably ascertained. And Whereas, the Minister deposited the said Maps and Schedules as required by the Acts and also deposited copies thereof at the Office of the Minister at the offices, Kildare Street, Dublin, and after such deposits applied to the Land Values Reference Committee to appoint an Arbitrator between the Minister and the Persons interested in the Scheduled Lands or Lands injuriously affected by the execution of such Schemes, so far as compensation for the same has not been made the subject of agreement, and thereupon the Land Values Reference Committee by their Order, dated the Twenty-ninth day of March, One Thousand Nine Hundred and Forty-nine appointed me, the above-named John Joseph Winters to be such Arbitrator in pursuance of the said Acts. And Whereas, upon such appointment the said Minister delivered to me as such Arbitrator the said Maps and Schedules, and the Minister forthwith, after such appointment, gave, posted, and published at the times and in the manner required by the said Acts notice thereof, and of the deposit of the said Maps and Schedules as required by the Acts with a description of the situation of such Office, and a statement of the time at which such copies might be inspected by any persons desirous of inspecting the same. And Whereas, I have ascertained in the manner required by the said Acts the amount of compensation demanded in respect of the said Lands and Premises by each claimant, and the amount which the Minister were willing to pay, and I have heard all parties interested in each disputed case who appeared before me at a time and place of which notice was duly given in pursuance of the said Acts, and I have made all such inquiry and given such notice thereof as is required or directed by the said Acts.

NOW KNOW YE that I, the said Arbitrator, do, in pursuance of the said Acts, make this my Award under my hand and seal accordingly, as to the several Lands specified in such Map and Schedules, and hereinafter Schedules and annexed, and I do find, award and determine, that the prices to be paid by the Minister for the purchase of the several interests in the Lands specified and described in the Schedule hereunto annexed, and set forth in the columns headed “Value of Interest and Purchase Money to be Paid for Same,” opposite to the names of the persons interested therein, and that the sum to be paid for compensation for injury done, or to be done, to any Lands held, or for injury to Land or Premises not held together with such Lands respectively, in the said Schedule specified, by reason of severance or otherwise, injuriously affecting such other lands by the exercise of the powers of the Minister are set forth in the column in the Schedule headed “Compensation to be Paid for Damage by Severance or for Injuriously Affected Lands by EXECUTION OF Works of the Minister” opposite to the names of the parties respectively interested therein, and in said Schedule I have set out the abatement to be made in Rent, and Rent charges so far as I have been required to do so.

As Witness my Hand and Seal this 15th day of September, One Thousand Nine Hundred and Forty-nine.

J. J. WINTERS, Lieut. Col.,

Official Arbitrator and Referee.

IN THE MATTER OF “THE ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT, 1919” “AIR NAVIGATION AND TRANSPORT ACT, 1936” AND “AIR NAVIGATION AND TRANSPORT (COMPULSORY ACQUISITION OF LAND) (No. 1) ORDER, 1947.”

Schedule referred to in Arbitrator’s Award of the 15th September, 1949

N.B.—Unless otherwise stated, Location, Area, etc. of Land shall be as per Schedule attached to (No. 1) Order dated 23/12/47.

J. J. WINTERS, Lieut. Colonel.

Official Arbitrator and Referee.

15th September, 1949.

(2)

HIGH COURT OF JUSTICE.

DUFF v. MINISTER FOR INDUSTRY AND COMMERCE.

19th November, 1951.

JUDGMENT OF DIXON J.

This action involves a net question of the construction of the Award, dated the 15th September, 1949, of an arbitrator appointed pursuant to the Air Navigation and Transport Acts, 1936 to 1950, and the Order made thereunder. Section 41 of the Act of 1936 authorised the Minister for Industry and Commerce to acquire land compulsorily for the purposes of Part V of the Act, by making an Order under the section; and sub-section 4 provided that an Order made under the section might incorporate (a) the Acquisition of Land (Assessment of Compensation) Act, 1919, and (b) the Land Clauses Acts so far as the same are not inconsistent with the said Acquisition of Land (Assessment of Compensation) Act, 1919.

The Minister made an Order under the section, entitled the Air Navigation and Transport (Compulsory Acquisition of Land) (No. 1) Order, 1947 (S.R.O. No. 433 of 1947) in relation to portion of the plaintiff’s lands; and the Order incorporated the Acts mentioned in sub-section 4 of the section. There having been no agreement as to price, an enquiry was held by the Arbitrator appointed by the Land Values Reference Committee under the Act of 1919; and he duly made his award. His award dealt with other owners and lands and, probably on this account, the method of employing a Schedule to specify the owners, the lands, the compensation and other matters, was adopted.

The body of the Award contained a statement by the Arbitrator as follows: “I do find award and determine that the prices to be paid by the Minister for the purchase of the several interests in the lands specified and described in the Schedule hereunto annexed and set forth in the columns headed “Value of interest and purchase money to be paid for same” opposite to the names of the persons interested therein, and that the sum to be paid for compensation for injury done, or to be done, to any lands held, or for injury to lands and premises not held, together with such lands respectively, in the said Schedule specified, by reason of severance or otherwise, injuriously affecting such other lands by the exercise of the powers of the Minister are set forth in the Schedule headed ‘Compensation to be paid for damage by severance or for injuriously affected lands by execution of works of the Minister opposite to the names of the parties respectively interested therein,’ and in said Schedule I have set out the abatement to be made in Rents and Rent charges so far as I have been required to do so.”

The Schedule does not contain any column or columns headed “Value of interest and purchase money to be paid for same”, which would, in any event, have been a redundant heading. Instead, there are, after a column for the “owner or reputed owner”, two columns headed, respectively, “Interest”, and “Compensation for Lands.” These are followed by two further columns headed, respectively “Compensation for disturbance and/or severance” and “Remarks.” The entries opposite the name of the Plaintiff are: under “Interest”, “Fee Simple paying annuity”; under “Compensation for Lands”, “£2,100”; under “Compensation for Disturbance and/or severance”, “£1,000”; and, under “Remarks”, “For fee simple interest.”

The question has arisen, and arises on the Award, as to the incidence of an apportioned part of the annuity payable to the Irish Land Commission in respect of the holding of which the lands acquired are part. The holding is registered on Folio 884, County of Dublin, and about half of it is being acquired. The revised (total) annuity is £26 6s. 4d. The plaintiff claims that the acquisition, and the Award of compensation, were subject to the payment of an apportioned part of this annuity. The Minister claims that the plaintiff is bound to convey the lands freed from any part of the annuity.

Despite the reference to “abatement in rents and rent charges” in the body of the Award, it is clear on the face of the Award that the Arbitrator did not purport to effect or provide for any abatement or apportionment of the annuity in question here. In practice, if a case for apportionment arises, the actual apportionment is usually left to the Land Commission. Further, the reference to abatement is qualified by the Arbitrator by the addition of the words “so far as I have been required to do so”; and there is nothing to suggest that he was required to do so in the case of the plaintiff.

Counsel on behalf of the Minister submitted that I was not entitled to look outside the Award for the purpose of construing it and that no extrinsic evidence could be allowed to affect its construction. Adopting this view for the moment and confining my attention to the Award alone, I think the meaning of it is reasonably clear although, it must be confessed, not entirely free from doubt. I regard the columns headed “Interest” and “Compensation for Lands” as being interdependent, in the sense of the former specifying the subject matter of the latter, that is, that it is in respect of the “interest” specified that the “compensation for lands” is payable. The non-existent column, referred to in the body of the Award, and intended to be headed “Value of interest and purchase money to be paid for same” would if it had been inserted, have been more intelligible if it had been headed “nature of interest and purchase money to be paid for same.” I think the two columns I have referred to must have been intended to have the same effect and meaning as this one column would then have had. If this is not so, it is hard to find any reason for the mention of the annuity, which is not elsewhere mentioned or dealt with in the Award. If the column were merely intended to specify the nature of the owner’s interest, and not necessarily the interest being acquired, its relevance or necessity on the face of the Award is not apparent and it would be an incomplete statement, since the annuity would only be one incident or matter affecting the owner’s interest.

It may be said however, that this view would overlook the final column of the Schedule, which, as already mentioned, is headed “Remarks” and has the entry in it “For fee simple interest.” This, the Minister contends, is a clear statement by the Arbitrator that it is the unencumbered fee simple that is being acquired by the Minister. This view, however, would seem to me to give undue, in fact, predominating, importance to that one column in the Schedule. It would overlook the equivocal nature of the heading of the column, the more specific and, as I think, significant, heading of the “Interest” column, and the circumstances that the natural and logical order is to specify the subject matter of the compensation before specifying the amount of the compensation and that a further column intervenes between the “compensation for lands” column and the “Remarks” column. At the same time I do not think this last column can be regarded, or rather disregarded, as being merely “surplusage.” This view was taken of portion of the Award considered in In the Matter of Wright and the Cromford Canal Company, 1 Q.B. 98, but there there was a definite award and the portion rejected as surplusage was only stated as a hypothetical alternative. I think the award in the present case must be treated on the basis that the “remarks” column is an integral part of it and must, therefore, have been intended to have some meaning and effect.

I think a clue to its possible meaning and effect is given by its title. A “remarks” column is usually reserved for the entry of explanatory notes or reminders or other matters of detail not fully covered by the main body of the particular document; and, as such, it is supplementary and subordinate to that main body and would not override the effect or result of the rest of the document, if the two were reasonably capable of standing together. Even if there were a clear contradiction, I think the effect would be, not that the “remarks” would prevail but, that the resultant ambiguity or uncertainty might rob the document of any definite meaning or effect.

In the present case, I think it is quite possible to give the entry in the particular column a meaning that renders it consistent with the rest of the document. The Award is not drawn with the precision of a legal document and it does not appear that the Arbitrator was a lawyer; and I think it is not unreasonable to suppose that he intended the entry to indicate, in a general way, the type of interest dealt with rather than its precise nature. That is to say, he wished to indicate—superfluously, perhaps, but understandably—that it was the fee simple rather than a leasehold or some other type of interest that was involved. That he did not regard this column as exclusively concerned with the nature of the interest involved is shown, if I am entitled to look at them, by other entries in the same column.

I have formed the view, therefore, that the Award is reasonably clear on its face but any possible ambiguity is resolved, in my opinion, by the other documents and considerations in the case. For the purpose of understanding and interpreting the Award I think I am entitled to have regard to the jurisdiction of the Arbitrator and to what matters were before him: See Duke of Buccleugh v. Metropolitan Board of Works, L.R. 531 L. 418 and Attorney-General for Manitoba v. Kelly (1922) I A.C. 268. In the latter case, Lord Parmoor, delivering the judgment of the house, said (at p. 276): “It would be impossible to allow an umpire to arrogate to himself jurisdiction over a question which, on the true construction of the Submission, was not referred to him.”

In the present case, the jurisdiction of the Arbitrator was to determine what is referred to in Sect. 1 of the Act of 1919 as a “Question of disputed compensation.” In other words, he was concerned with the amount and one has to look elsewhere to discover the exact subject matter. This subject matter is clearly shown by the unconditional offer made by the Minister, the refusal of which by the owner gave rise to the “question of disputed compensation.” This offer made on the 6th August, 1948, was expressed to be in respect of “the fee simple interest, free from encumbrances, in the said lands subject to any annual sums payable thereout to the Irish Land Commission under the Land Acts.” In view of this, I think the Arbitrator would have exceeded his jurisdiction if he determined the compensation on the basis that the Minister was to acquire the lands freed from any annuity; and, on the principle of upholding his Award, I must take the view that he did not intend to do so. Some support may also be derived from the circumstances that he allowed the owner his costs of the arbitration, presumably on the basis, provided for in Sect. 5 of the Act of 1919, that his Award exceeded the offer of the Minister, although this consideration is somewhat complicated by the circumstance that the Minister’s offer made no reference to compensation for disturbance and it is only when the amount awarded under this head is added in that the excess appears. I do not know, and was not referred to, the statutory or other source of this separate head of compensation.

Some of the difficulty in this case as has appeared was occasioned by the form of the Award itself, which is a printed form adapted to meet the particular case. The use of a general printed form is not, of course, objectionable but its adaptation requires care and even the printed portion may require revision.

For the reasons given, I think the plaintiff’s claim is well founded and he is entitled to the declaration he seeks as to the true meaning and construction of the Award, namely, that the compensation thereby awarded is payable without any deduction therefrom in respect of any annual sums payable to the Irish Land Commission in respect of the lands or any part of the lands the subject of Folio 884 of the County of Dublin.

Form of Offer of 6th August, 1948, referred to in Judgment of Hon. Mr. Justice Dixon.

A Chara,

I am directed by the Minister for Industry and Commerce to refer to the claim made by you dated the, in response to a Notice to Treat dated the 19th January, 1948, served upon you by the Minister relative to the Air Navigation and Transport (Compulsory Acquisition of Land) (No. 1) Order, 1947 (S. R. & O. No. 433, 1947) made under the air Navigation and Transport Act, 1936, by which the Minister has declared his intention to acquire compulsorily lands in the townland of Commons in the barony of Coolock, Co. Dublin, subject of Land Registry Folio Number, Co. Dublin, containing acres, roods, perches or thereabouts, statute measure, of which you are stated to be the owner.

I am now to inform you that the Minister hereby unconditionally offers you the sum of £ as compensation for the Fee Simple Interest, free from encumbrances, in the said lands subject to any annual sums payable thereout to the Irish Land Commission under the Land Acts.

This letter will be treated as an unconditional offer in writing for the purpose of Section 5 of the Acquisition of Land (Assessment of Compensation) Act, 1919, which is incorporated in the Air Navigation and Transport (Compulsory Acquisition of Land) (No. 1) Order, 1947, cited ante, and in this connection I am to draw your attention to the fact that if the said offer is not accepted by you within a reasonable time, and if the Official Arbitrator does not award a sum greater than the said offer you may be liable for all costs incurred after the 6th day of August, 1948, the date of this letter.