Question were (as stated in
an
letter of 30 Nov. Danly provisionally subject to restrictions;
I then go on to offer the lines suggested my minist a compromise in last part of 22486/marked B) Sud 2/4/97 C.PL.2
The War Office apparently shifts its ground, and, abandoning its claim to have this land treated as "Colonial Military Land" within the meaning of the circular of 1894, now claim that the military authorities have certain rights to the ground which they propose to abandon, and for the abandonment of which they are entitled to compensation as if they were entitled to the land in full.
It appears to me that the principle put forward is just and equitable. The question is whether the claim is well founded in point of fact.
I gather from the correspondence that the land belongs to Government, pending the final determination of the scheme for the defence works, it was let out with a complete restriction as to building, subject to the form that if the lessee built, he did so at the risk of having to remove his building without compensation if deemed necessary by the Military authority (see Resolution of the Ex. Co: of 17th Jan 1877). This resolution gave rise to a dispute between the civil and military authorities; but finally, when the defensive scheme was settled, it was found that it was not worth while to place any restriction on building on the land in question.
According to the War Office view, the case is like that in which a private person has an easement - a right to light, air, etc. - over another person's land, for the abandonment of which he sets up a claim to compensation. If their scheme of defence had been different, they might have prohibited building. As it is, the land is now free from the restriction on building which had been imposed, and the question is who benefits from this.
It does not appear to me inequitable that the Colonial Government should be debited (on the principle of the circular of 1894) with an amount equivalent to the benefit derived from the removal of the restriction. I should suggest that this view be put before the Colonial Office before...
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