England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL

		Royal Courts of Justice Strand London, WC2 Monday, 25th November 2002

Monday, 25th November 2002

1. LORD JUSTICE RIX: This is an application by Mr Patel, on behalf of himself and his brother, for permission to appeal against the decision of the Lands Tribunal made by Mr PR Francis FRICS on 2nd May 2001 and against its subsequent order for costs made on 26th June 2001. The Tribunal's decision was in respect of the compulsory purchase of the house owned by the Patel brothers at 17 Ford Street, Walsall. This house was compulsorily purchased under the Walsall (Ford Street) Compulsory Purchase Order 1976. There was a notice to treat sent to the applicants by the respondent council, the Walsall Metropolitan Borough Council, on 4th August 1978 and the date of entry took place ultimately on 5th January 1983. It is the date of entry which marks the date at which a valuation for the purposes of the compulsory purchase order must be made by the Lands Tribunal.
2. An appeal from the Lands Tribunal is only open on a question of law; and the question on this application is whether the Patel brothers have a real prospect of success on some question of law arising out of the Tribunal's judgments.
3. The decision of the Lands Tribunal, ultimately, was to value the property at £5,700. In his evidence to the Tribunal Mr Patel claimed the value to be from £10,000 to £20,000, and placed reliance, inter alia, upon newspaper advertisements of houses for sale in the area at prices ranging up to nearly £17,000. He also relied upon the evidence of his valuation expert, Mr Wadsworth, who was an estate agent with 38 years hands-on experience in the area and with specific knowledge of Ford Street and other neighbouring streets. He had been acting for the Patel brothers since 1978. For the purposes of his evidence to the Tribunal, he could not find his file and gave evidence purely from memory and from his experience. His initial 1979 valuation had been one of £5,250, but he said that inflation justified the doubling of that valuation to his valuation as put to the Tribunal of £10,500 as at the date of entry in January 1983. There had also been early agreement around about the time of the date of entry between the Council and chartered surveyors then acting for the Patel brothers of a value of £5,000, subject to instructions. But those instructions were never forthcoming and the surveyors in question closed their file in 1985. There was evidence of an internal inspection in October 1982, an inspection which the Patel brothers disputed having taken place, and evidence that on that inspection the premises were found in poor condition. There were also photographs of the interior of the property taken on 19th January 1983. There was also photographic evidence of the exterior of the property dated 21st October 1982. The Tribunal accepted the area of the property to be 103 square meters -- which is the area shown on the rating records -- albeit Mr Patel disputed that and said his property was bigger, and Mr Wadsworth, his expert, said that the property had what he called an overall site area amounting to 127 square metres or 152 square yards. Mr Patel informs me today that Mr Wadsworth has since increased his opinion as to that area to 165 square yards. There was also evidence before the Tribunal from an expert surveyor instructed by the Council, a Mr Compson. He was a very experienced surveyor, but had no personal experience of the streets in question. Nevertheless, he submitted evidence of 24 compulsory purchase order settlements in Ford Street between 1979 and 1982 and of five open market sales in a neighbouring street, Princes Street, in 1983. On the basis of that evidence he arrived at his valuation of £5,700, which was the value accepted by the Tribunal. Mr Wadsworth, on the other hand, had no direct comparator to put before the Tribunal, although he did refer to a modernised property in Kingsley Street, about half a mile away, which had been sold in about November 1985, almost three years after the date of entry in question, at a price of £15,500. Discounting that price back to January 1983, on the basis of the Nationwide Building Society Indices, gave a figure of just over £12,000.
4. In a careful judgment in which the Patels' case and evidence is set out in detail in paragraphs 5 to 21 of the transcript, the Tribunal considered all the material before it and found its facts accordingly. It said that the settlements in Ford Street were of less weight than open market transactions, although it did pay some regard to settlements at 85 and 87 Ford Street in March and September 1982 at values of £4,750 and £4,500 respectively. Upon the basis of those two valuations Mr Compson's valuation of £5,700 as of January 1983 "appears generous". Even so they accepted Mr Compson's figure.
5. The critical reasoning of the Tribunal's judgments appears in the following three paragraphs:

"36. The evidence relating to asking prices from local newspapers introduced by the claimant was not conclusive and I cannot attach any weight to it as evidence of actual transactions. Most of the advertisements for similar style properties at prices of £13,500 and upwards appeared to me to be for those which had been fully modernised, with central heating and proper bathrooms, but as I have said, there was no evidence of actual sales, or as to comparability of locations.

37. Doing the best that I can therefore, I conclude that on the balance of probabilities there was little between values in Princes Street and Ford Street at the relevant date, and the settlement evidence from 1979 and 1982 referred to by Mr Compson shows little evidence of a major boom in house prices over that period. With no transactional evidence from around the relevant date forthcoming from Mr Wadsworth, I accept Mr Compson's evidence and his statement that in valuing the property he took no account of any detrimental effect of the adjacent scrapyard, or any additional dampness resulting from the damage to the adjoining property.

38. I also take into account the photographic evidence from 1980 and 1982 from which it is evident that the property was, overall, in poor condition with little sign of any maintenance. Whilst I accept that the internal photographs taken 4 days after the house was vacated show signs that some vandalism might have occurred, it is clear to me that it was in very poor decorative order and basic in terms of fixtures and fittings. Finally, I accept that an internal inspection was undertaken at the claimants' request in October 1982 and again, from the copy file notes it is evident that the house needed much work to bring it up to an acceptable modern standard."

6. On this application Mr Patel raises a great number of complaints about the factual findings of the Tribunal's judgment. For instance, he complains that the rear garden was described as small, while on the evidence before the Tribunal it measured 35 by 18 feet. Whether the Tribunal refer to that as small or by any other adjective, that was the evidence before the Tribunal and they were the dimensions that they plainly took into account.
7. Mr Patel disputed the poor decorative order of the premises. He said that there was no internal inspection in October 1982. He said that the evidence of poor condition derived from photographs of 19th January 1983 was evidence of vandalism and nothing else. Those matters were all fully before the Tribunal and it was entitled to come to its decision upon those factual matters in the way in which it did.
8. Similarly, Mr Patel disputes the Tribunal's observation that the property had been subject to only "some modernisation", whereas he would have described the modernisation which he and his brother had undertaken in more glowing terms. He further says that the Tribunal discounted the value of the property by reference to the adjoining scrapyard in the rear, and also by reference to the poor condition of the adjoining property through the hole in whose roof rain water had been allowed to percolate and affect the condition of his property. But in the passage that I have read from paragraph 37 of the Tribunal's judgment, it is clear that Mr Compson's valuation, which the Tribunal accepted, took no account of the detrimental effect of the adjacent scrapyard or of any additional dampness resulting from the damage to the adjoining property.
9. Similarly, Mr Patel seeks to rely upon the contemporary newspaper advertisements as supporting a higher value. They were not relied upon by Mr Wadsworth, and the Tribunal discounted them for the reasons recited in paragraph 36 of their judgment. Again, that is an example of a purely factual matter where it is impossible for this court to say that the Tribunal erred as a matter of law in their conclusion.
10. Nevertheless, Mr Patel does submit in a series of clear written submissions which he has put before me, and for which I am grateful, that the Tribunal's judgment does disclose errors of law. As specific errors of law he refers to the matter of the settlement values at 85 and 87 Ford Street referred toby the Tribunal. He submits that he should be entitled to put before the Court of Appeal fresh evidence to the effect that those two premises are still to this day in the ownership of their original owners and that in fact no settlement values have been agreed. That is evidence which it is plain that the Patel brothers could have advanced to the Tribunal below. The reliance of Mr Compson on the Ford Street settlements was plainly set out in his report exchanged between the experts, and it is commented on in Mr Wadsworth's report on behalf of the Patel brothers. It is therefore difficult to see on what basis, in accordance with the principles of Ladd v Marshall as they apply under the new regime of the CPR, it would be possible to admit such new evidence.
11. Nevertheless, let me assume for the sake of argument that that material would be properly before the Court of Appeal. Certainly it cannot be said to be an error of law that the Tribunal below placed any reliance upon them in the then state of the evidence. Even so, it does not seem to me that those matters would affect the Tribunal's overall reasoning to any material degree. They were only two out of 24 settlements in Ford Street, quite apart from the evidence of five open market sales in the neighbouring Princes Street. If there was a mistake made in saying that there were settlements in respect of those two amongst the 24 properties in Ford Street, it would seem, nevertheless, that those figures must have been figures deriving from the Council even if not finally agreed and acted upon by the owners of those properties. That is a matter that would have to be taken into account with the other 27 properties considered as comparators. So far as the Princes Street properties are concerned, Mr Wadsworth said that Princes Street was no comparison at all: it was, although the next-door street, a street of entirely different value -- "a no go area", he referred to it as -- but the Tribunal was perfectly entitled to form its own view of that matter.
12. Another factor relied upon by Mr Patel as going to an error of law is that in respect of those five Princes Street properties the numbers of the houses had not been disclosed to Mr Wadsworth prior to the hearing itself. In the circumstances Mr Wadsworth was not able to identify the particular houses in question or to inspect them. The Tribunal plainly took that into account, because when, at the hearing, the Council offered to disclose the numbers, which they had previously not disclosed out of consideration for the confidentiality of the owners of those properties, the Tribunal said that would not be fair at a time when the Patels had already closed their case. Mr Patel submits that if the case could not be reopened for Mr Wadsworth to view those houses in that situation, then the Tribunal could place no reliance upon those properties at all. In my judgment, however, that does not go to the admissibility of that evidence but to its weight, a matter which the Tribunal would plainly have had in mind in the context of its ruling as to whether there should be a reopening of the hearing to permit inspection of the houses in question. Although they were not inspected by Mr Wadsworth, their descriptions and dimensions were before the Tribunal and were matters which the Tribunal were entitled to take into account.
13. Mr Patel's written submissions also refer to Article 6 of the Human Rights Act 1998. But, in my judgment, that takes the matter no further, since I see no real prospect of success on any human rights argument to the effect that the Patels did not have a fair hearing.
14. All in all, the matters raised by Mr Patel either are pure matters of fact upon which the Tribunal was fully entitled to come to its own conclusion and which raise no question of law on which an appeal would be available, or to the limited extent that a question of law is put before this court, it is one which raises no real prospect of success.
15. Finally, Mr Patel says that, looking at the matter overall, the Tribunal's conclusion was irrational or one that was not open to it on the evidence. In my judgment those are impossible submissions.
16. I turn, therefore, to the question of the Tribunal's judgment on costs.
17. What happened was that on 28th April 2001 the Council had made a sealed offer to the Patels at a value of £6,000. The Tribunal ruled that each party should bear its own costs for the period up to seven days after the date of that sealed offer but that from seven days after 28th April 2001 the Council's costs should be paid by the claimants. Mr Patel submits that that was an error of law. He submits, referring to the case of Purfleet, that the normal rule is that a claimant should be entitled to put his claim for compensation on the maximum basis which he can reasonably support, and that he had done nothing more than that. However, the Tribunal plainly thought that pursuing over so many years an unrealistic claim of up to £20,000 -- which the Patels were still pursuing at the hearing albeit their expert witness put his figure at only £10,500 -- was outside the normal rule and created a special reason. In any event, he had been warned, as his submissions itself make clear, that the Tribunal was likely to make no order for costs, subject to any special situation.
18. On the Tribunal's judgment there were two special factors in this case. One was the sealed offer of £6,000 made on 28th April 2001, and the other was the Patels' unrealistic claim of up to £20,000. Even Mr Wadsworth's evidence of £10,500 was nearly twice the figure found by the Tribunal and was based on no comparator but only on Mr Wadsworth's memory and general experience.
19. For all these reasons, which I have gone into at some length, in deference to Mr Patel's submissions (both oral and written), I am afraid, however disappointing it must be to Mr Patel, as I recognise, I can find no real prospect of any success upon appeal. Since I can find no other compelling reason to permit an appeal, I am obliged to dismiss this application. If I had found merit in this application I would have been prepared to extend the Patels' time for making it by the period of two weeks necessary to validate it. As it is, that question does not arise.
Order: Application dismissed.