- 19 -
so apparent. The influx of industry to the New Territories
not yet having taken place, the element of potential development
value was probably of little importance. The position is quite
different to-day. In our view, the legislature in 1922 was
misled into enacting the 12(c) amendment by the erroneous
statement that a similar provision was in force in England.
49.
When we look at the notion of "fair price" in the
Convention, we find it difficult to conclude that the contract-
ing parties meant the artificial price which the Crown now
offers to owners. One way of judging a fair price would be
to ask whether the expropriated owner with the compensation
money would have bought on the market a comparable piece of
land. That sum would, obviously, include every element of
"market price" including potential development value.
Another
way of testing the proposition is this: assuming that the
British parties in 1898 had been asked what they meant by "fair
price", surely their answers would have been: that the sum which
an owner in Britain could have reasonably expected in compensation
in accordance with the law then prevailing in Britain.
As we
have shown above, one would certainly have included the potential
development value of the land and, indeed, something more: until
the statutory rules were enacted in Britain in 1919 under the
Acquisition of Land (Assessment of Compensation) Act, the courts
added a "sop (which was in the old days always given in these
cases) of 10 percent to soften the blow of compulsory acquisition":
see the comments of Denning MR in Harvey -v- Crawley Development
Corporation (1957) 1 Q.B. 458 at 493.