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[2000] EWLands ACQ_68_1997 (15 February 2000)

ACQ/68/1997

LANDS TRIBUNAL ACT 1949

COMPULSORY PURCHASE - compensation - grazing land 4 miles north-east of Swansea - whether planning permission to be assumed for 4/5 or 15 housing plots - appropriate basis of valuation - comparables - compensation determined at £138,250.

IN THE MATTER of a NOTICE OF REFERENCE

BETWEEN MR P M HOOPER Claimant

and

CITY AND COUNTY OF Acquiring

SWANSEA Authority

Re: Land off Gwernllwynchwyth Road

Llansamlet, Swansea

Before: N J Rose FRICS

Sitting in Public at Swansea County Court

on 14-16 September, 30 November and 1-2 December 1999

The following cases are referred to in this decision:

Inland Revenue Commissioners v Clay [1914] 3 KB 466

Church Cottage Investments Ltd v Hillingdon LBC (1990) 60 P&CR 146

Birmingham Corp v West Midlands Baptist (Trust) Association [1970] AC 874

Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565

Myers v Milton Keynes Development Corporation (1974) 27 P and CR 518 (CA)

Appearances: Geraint Jones instructed by Wherle and Sheehan, solicitors of Neath, for the Claimant.

Alun Alesbury instructed by J A James, Head of Legal Services, City and County of Swansea, for the Acquiring Authority.

... CROWN COPYRIGHT 2000

DECISION

This is a reference to determine the compensation payable by the City and County of Swansea (the acquiring authority) to Mr P M Hooper (the claimant) for the freehold interest in land off Gwernllwynchwyth Road, Llansamlet, Swansea (the subject land). The land was compulsorily acquired under the Swansea (Town Planning) (Swansea Vale, Llansamlet) Compulsory Purchase Order 1994 (the CPO) made on 3 May 1994 and confirmed by the Secretary of State for Wales on 4 October 1995. The freehold interest in the subject land was vested in Swansea City Council (the predecessor of the acquiring authority) on 27 February 1996 - the agreed valuation date. The claimant's valuation was £455,000 and that of the acquiring authority was £70,000.

Mr Geraint Jones of counsel (referred to in this decision simply as Mr Jones) appeared for the claimant and called Mr L A Stradling BSc (Hons), MSc, FGS, MIGeol, CGeol, Mr C R F George FICE, MIWES, MICE, MAPS, Mr L A Force, MA, MSc, MRTPI, ARICS, Mr A Seager, BA (Arch), Grad Dip RIBA and Mr K H Batten BSc (Est Man), FRICS. Mr Alun Alesbury of counsel appeared for the acquiring authority and called Mr H W Jones, BSc (Hons), MRTPI (referred to hereafter as Mr Huw Jones) and Mr R W Harlow, BSc (Est Man) ARICS.

Unfortunately the parties did not produce a schedule of agreed facts. From the evidence, however, I find the following facts:

The Subject land

The subject land is an irregularly shaped parcel. It is situated off the north-west side of Gwernllwynchwyth Road in Llansamlet, Swansea and slopes downwards away from the road in a generally north-westerly direction. It has a frontage of approximately 80m to the western side of the road. The total site area is approximately 3 acres (1.215 hectares), of which approximately 1.06 acres (0.43 hectare) is a former railway track contained within a small cutting. The site adjoins an operational railway line - used for freight transport - on its north-eastern boundary. On its southern boundary the site abuts an existing house known as "Danycoed" and the land to the west is undeveloped.

The north-western portion of the site comprises the route of a dismantled railway line and is located at a lower level than the bulk of the land. This route continues north eastwards under the bridge carrying the operational railway. Between the route of the dismantled railway and the bulk of the site is a wooded area and a steeply sloping bank. The dismantled railway land and the adjacent wooded area amount to approximately one acre in area. The balance of the site, which amounts to approximately two acres, comprises at its northern end land which was formerly utilised for tipping. The remainder of the land rises gently towards "Danycoed" and is used as rough grazing land, although at one time it formed part of the land owned by the colliery to the west.

The residential areas of Llansamlet and Peniel Green lie close to the south of the subject land, which is located approximately 4 miles north east of Swansea city centre.

The Development Plan

At the date of valuation the development plan covering the subject land consisted of the West Glamorgan Structure Plan (Review No.2) (the structure plan) and the Swansea Local Plan (the local plan).

The structure plan was adopted by the former West Glamorgan County Council on 15 February 1996. The accompanying key diagram showed the subject land as falling within the "existing built up area". The key to the key diagram stated:

"This diagram is not the structure plan. Its purpose is to assist in understanding the location of policies described in the written statement."

The County Council's housing strategy as set out in the structure plan contained the following five distinct elements:

"i Release of sufficient land to permit the development of 20,000 new dwellings in the county by 2006, on a wide range of sites to meet local needs, avoiding valuable landscape, ecological and heritage features.

ii Encouragement of residential development on derelict, vacant and underused sites in urban areas, to bring about environmental improvements and alleviate development pressures on the countryside.

iii Strict control over further development in environmentally sensitive areas such as Gower, and areas of infrastructure constraint such as West Swansea.

iv Support for the development of Swansea City Council's Tawe Vale proposals and major new housing schemes proposed at Waunceirch, Swansea Docks and Aberavon Seafront.

v The encouragement of substantially increased levels of house-building in East Swansea and Port Talbot."

The structure plan contained a number of specific housing policies relating to future residential development within the county. Extracts from the first three policies are set out below.

Policy H1:

"Land will be made available for the development of approximately 20,000 new dwellings in West Glamorgan during the period mid 1991-2006 distributed by district as follows:

Swansea 9,200

Lliw Valley 4,800

Neath 3,200

Port Talbot 2,800

Policy H2:

"The development for housing of derelict, vacant or underused sites within existing urban areas will be encouraged, subject to there being no overriding local planning, environmental or highway considerations".

Policy H3:

"Within Swansea sufficient land will be made available to enable development, up to the year 2006, as follows:

(i) Approximately 7,600 new dwellings in north, east and central Swansea on a wide range of sites spread throughout the area, including Tawe Vale.

(ii) No more than 1,600 dwellings in west Swansea, where new housing will be restricted to infilling and rounding off the existing urban area in line with established commitments.

For the purposes of this policy (i.e. H3 (ii)) "infilling" is defined as development of a site within the existing urban area, generally for relatively few dwellings, but occasionally for up to 100 dwellings on larger sites. "Rounding off" should take development to a clearly defined boundary which does not then create a precedent for further land releases.

(iii) In the Gower fringe settlements limited infilling and small-scale rounding off, as well as minor extensions to existing settlements required to meet proven local housing needs.

For the purposes of this policy "limited infilling" means sites for up to about six dwellings within the boundary of an existing settlement. "Small scale rounding off" of a settlement will only be considered where identified in the local plan, and where development takes the developed area up to a clearly defined boundary which does not then create a precedent for further land releases.

(iv) Within the Gower Area of Outstanding Natural Beauty, there will be a strong presumption against further new housing other than on suitable plots within the boundaries of an existing settlement or developments required to meet the overriding economic or social needs of a local community.

For the purposes of this policy only sites for one or two dwellings clearly within the boundaries of an existing settlement will normally be considered as 'suitable'."

The subject land forms part of an area to which Policy H3 (i) applied.

The local plan was adopted by Swansea City Council in December 1989. It showed the subject land as subject to policies H1 (new housing) and R6 (informal open space and landscaped areas).

Policy H1 stated that:

"IT IS THE POLICY OF THE CITY COUNCIL THAT THE SITES INDICATED ON THE PROPOSALS MAP AND IN THE LAND SUPPLY SCHEDULE BE ALLOCATED FOR RESIDENTIAL DEVELOPMENT IN ORDER TO MEET THE LAND SUPPLY REQUIREMENTS SET OUT IN THE STRUCTURE PLAN ALTERATION NO.1 ..."

An area including the subject land was referred to in the explanatory text as follows:

"Land north of Llansamlet adjacent to the proposed industrial contingency site proposed in policy E2 has residential development potential as part of an overall comprehensive development scheme. The land is not required to meet current local plan need estimates but it will be required in the longer term. The area is indicated on the proposals map, and it is intended that piecemeal development in the short term should not be allowed to prejudice longer term comprehensive development."

Policy H2 said:

"It is the policy of the City Council that unless there are overriding planning objections there will be a presumption in favour of development for residential or ancillary purposes on appropriate small infill plots".

The local plan covered the period to the end of 1991. The introduction to the written statement indicated that:

"This is not a rigid end date. Many policies will continue to be relevant beyond 1991."

A review of the local plan was commenced in 1993 and, by the valuation date, was at the consultation draft stage. This plan identified the subject land together with a large area of open land as forming part of the Swansea Vale proposals, a comprehensive scheme involving open space provision, housing and commercial development.

Planning History

The majority of the subject land was formerly part of the Samlet Colliery and its associated tip. Site investigations of the wider area undertaken as part of the Swansea Vale proposals identified areas of contamination and dereliction. A number of schemes have been considered to revitalise the wider areas of dereliction, building upon the acquiring authority's previous work within the lower Swansea Valley.

The subject land has since the mid 1980s been considered as part of a location for a prestigious large scale development. In 1986 it was included within a bid to house the 1992 Welsh National Garden Festival. This bid was eventually unsuccessful and other means were pursued to achieve the objective of revitalising the area. In 1989 British Urban Developments proposed a partnership scheme with the City Council to bring forward an area then called Tawe Vale, but effectively the same as the current Swansea Vale, for development of a similar mix of land uses. Much work was done, but a combination of market conditions and an inability by the private firms involved to attract grant aid meant that the scheme did not proceed then, due to a viability gap in the funding resulting from the high site preparation and infrastructure costs. The Council, however, still aspired to the regeneration of the area, producing the Swansea Vale development strategy and subsequently a partnership was formed with the Welsh Development Agency to bring the regeneration scheme forward.

On 21 November 1990 a planning application was submitted by the claimant in respect of part of the subject land having an area of 0.31 acres. The application was for the erection of two detached dwelling houses with garages. Permission was refused on 15 January 1991. The only reason for refusal was that

"the proposed (development) constitutes a piecemeal form of development which if permitted would prejudice the City Council's adopted policies and proposals for the comprehensive development of the area as a whole."

Issues

It is agreed that compensation is to be assessed on the basis that planning permission would be granted for residential development on the subject land, but the scale of that development is not agreed. The claimant says that 15 housing plots would be approved and the acquiring authority contends for 4 or 5. Other issues between the parties are the appropriate method of assessing the value of the land and the level of values that is appropriate.

Inspection

On 2 December 1999, accompanied by a representative of each party, I inspected the subject land and certain other sites that had been referred to in evidence.

Case for the claimant

Mr Leslie Anthony Stradling of Denver Construction Services of Cardiff Bay has had 36 experience as a professional geologist. He currently specialises in mining and engineering geology and minerals exploration.

In his opinion, there was no material contamination of the subject land which would affect residential development. The colliery spoil on the site could be easily removed and replaced with suitable fill material, which would be necessary in any event for raft foundations.

Having studied the mine abandonment plans and the results of physical drilling, he concluded that the coal beneath the site, even if it had been worked, would not prejudice the proposed residential development. Consequently, no special ground stabilisation procedures would be required. A fault intercepted the site, which meant that rigid reinforced raft foundations would be necessary on six of the proposed plots. In practice a developer would be likely to provide rafting throughout.

Mr Carl Raymond Forbes George is a partner in Slowikowski, Blackshaw and Partners, civil and structural consulting engineers of Cardiff Bay.

In his opinion the coal spoil on the site would not be contaminated. It was common for residential developments to be built on old coal tips in this area. It was not necessary to remove the spoil from the site, merely to move it around by machine to produce a suitable level. The presence of spoil would not cause a significant increase in the cost of infrastructure works. His preferred option for the disposal of foul drainage would be a treatment works, if the cost of pumping to the main sewer was prohibitive. Surface water drainage would be catered for by a soakaway system down to the bottom of the site.

The claimant's expert witness on planning was Mr Laurence Anthony Force. He has been a chartered town planner since 1976 and has had 16 years experience with a number of local authorities, including 6 years as assistant borough planning officer for Ogwr Borough Council. He is currently a partner in the Harmer Partnership, town planning and development consultants of Cardiff. He considered that, if the subject land had not been defined in the current development plan as an area of comprehensive development, planning permission would have been granted for the construction of 15 detached houses on part of the site.

The Planning Guidance published in Wales made it clear that the allocation of an application site on the current development plan was of paramount importance when a planning inspector decided whether to approve a particular development project. Although the provisions of the local plan were consistent with the construction of 15 units on the subject land, those provisions should be ignored, because they referred to comprehensive development for which the property was being compulsorily acquired. Nevertheless, one still had the guidance of the structure plan which provided the strategic planning framework for the area. That plan identified the site within the existing built-up area of Swansea and in an area of major housing allocation. There could therefore be no objection to residential development on the grounds that the site was in the countryside or outside a settlement boundary. Nor could there be any proper objection on the basis of inadequate access - the site was on the outside of a bend - site levels, ground conditions, drainage problems or obstacles to development such as protected trees.

Moreover, said Mr Force, the subject site fell squarely within Policy H2 of the Structure Plan. The lower part of the site was derelict, because of the presence of colliery spoil. The site was not part of an agricultural holding and, to the extent that it was used at all, it was under-used. In addition, the proposed development would improve the quality of the existing urban area. The proposed development was also consistent with Policy H3 of the Structure Plan, being located in east Swansea. In contrast to the position in west Swansea and at the Gower Fringe, Policy H3 did not restrict residential development in east Swansea to infilling and rounding off the existing urban area, or to "minor extensions to existing settlements to meet proven local housing needs". As for the five elements of the County Council's housing strategy as set out in the structure plan, the development of the subject land for residential purposes would be in accordance with elements i, ii and v; and complementary to iii.

Mr Force produced a photograph of the subject land taken from Walters Road, some distance to the north. He said this showed how little impact residential development would have on the overall scene, since it would be below the level of Danycoed and shielded by the wooded environs of the dismantled railway line. The site levels did not pose any development problem and the site was well contained and defined by the railway line to the north-east, the dismantled railway and adjacent wooded area to the north-west and Danycoed and its curtilage to the south. It would be prudent to include in the site layout provision for potential access to the undeveloped land to the west and south-west.

In further support of his opinion that planning permission for residential development would have been granted if the subject land had not been defined as an area of comprehensive development on the current development plan, Mr Force referred to the planning application made by the claimant in November 1990. The only reason given for refusing residential consent at that time was that the proposed development would prejudice the intended comprehensive development of the area as whole. Since there were no other reasons for refusal, either on matters of detail or policy, in the absence of a comprehensive scheme planning permission would have been granted for residential development in early 1991.

Mr Force produced a plan showing a suggested layout of the proposed 15 houses on the land. He also produced a schedule of conditions which would be likely to be imposed on such a development, which would take the form of a simple cul-de-sac. He referred to similar neighbouring developments which had been approved at Peniel Green Road and Ffordd Scott. He considered that the former railway land and the partly wooded steep bank could not reasonably be developed in the absence of a comprehensive scheme. This area would probably be used as amenity land and/or as the site of a small treatment works in connection with drainage of the site.

Mr Force's firm had previously been involved with a proposed residential caravan site and residential development of other land at Gwernllwynchwyth Road, Llansamlet. This site was of broadly similar size to the subject land. Swansea City Council refused planning permission on 28 November 1985 because the site was in an area where local plan policies sought to resist new residential development; sufficient land had been allocated for housing elsewhere in east Swansea and the access provision would result in an unacceptable loss of trees protected by a tree preservation order. An inquiry into the resultant appeal was delayed because of the Council's bid to host the 1992 National Garden Festival. When that bid proved to be unsuccessful, the appeal was determined by an inspector appointed by the Secretary of State for Wales. His decision was dated 21 October 1987 and approved the proposed development. The site of that appeal was located much further from the developed part of Llansamlet than the subject land. Residential development upon it was therefore less likely to have been permitted than on the subject site.

More recent events were also relevant. On 5 August 1998 the acquiring authority's planning committee has resolved to accept a report from the director of planning which set out a review of the Swansea Vale development proposals in the context of a number of recent studies, and which proposed a revised development pattern for the eastern sector of Swansea Vale as a basis for public consultation. The first conclusion from these studies was that:

"there is merit in maximising the area allocated to housing"

This conclusion applied to the Swansea Vale area as a whole. The suggested development of the subject land by the construction of 15 dwellings would represent less than 1% of the total number of houses proposed under the Swansea Vale scheme. Even if permission for development of this nature were refused by the local planning authority, Mr Force considered on the balance of probabilities that such a refusal would have been overturned on appeal.

In cross-examination, Mr Force agreed that the refusal of planning permission in 1991 to erect two houses on part of the subject land was based on a consideration of the effects of that development on the scheme underlying the acquisition. If the application had been considered in the no-scheme world, different considerations would have applied. He also agreed that the absence of an adequate supply of housing land was one of the factors taken into account by the inspector when he granted permission on the appeal in 1987. There was no such shortage of housing land at the valuation date, but this was due in part to the proposals for residential development in Swansea Vale which had to be disregarded.

Mr Alan Seager is currently principal of ASA Architects and SMS Developments of Swansea. He qualified as an architect in 1979. His experience includes employment in local government as a principal officer and eight years as a senior lecturer in architecture in higher education.

He was originally instructed to advise the claimant in December 1997. He formed the view that the subject land was a very pleasant site, ideal for residential development except on the disused railway line. He produced a plan showing development of the site with 15 building plots, served by an access road to be adopted by the local authority. He considered that this would constitute a feasible development of the subject land.

In January 1998 he had submitted a plan to the acquiring authority, indicating a ribbon development of five detached houses fronting Gwernllwynchwyth Road. The sole purpose of this plan was to counter a suggestion by the acquiring authority that such a limited development would involve substantial expenditure on retaining walls and other on-costs.

In his initial report dated 20 August 1998 Mr Seager produced an estimate of the costs involved in providing 15 plots on the land. He amended this estimate in the course of his evidence and his final figure was £98,860, as follows:

£

Site grading

Road and pavement

Street lighting

Drainage/treatment works

Services

Soil survey

Architect's fees at 6%

9,870

42,750

2,500

27,644

9,000

1,500

93,264

5,596

£98,860

Mr Keith Howard Batten has over 25 years experience of property valuation. He served with the district valuer and valuation officer in Cardiff and subsequently in Merthyr Tydfil. He then joined Lucas and Madley, chartered surveyors of Cardiff before starting practice on his own account in 1985. He is now a senior partner in Keith Batten Associates of Aberdare and Cardiff.

When preparing his valuation, Mr Batten relied on information contained in the proofs of evidence of Messrs Stradling, Force and Seager. He considered that the site benefited from an attractive open aspect, with schools, shops and public transport all readily available and with good views over the surrounding countryside. The wooded site of the dismantled railway line would form a natural boundary. The land was very suitable for residential development on a "self-build" basis. There were no significant shortcomings to the site which would adversely affect such development, although it would be prudent for dwellings situated adjacent to the fault to have raft foundations.

Prior to the valuation date there was a general shortage of self-build plots in the Swansea and Neath areas and there would have been a good demand for such plots on the subject land. The plots could be sold individually over a limited period and the necessary infrastructure works could probably be financed by the sale of plots.

As an indication of the likely demand, Mr Batten pointed out that in October 1995 a Mr Leswisse and his brother-in-law Mr Wellington had offered the claimant £60,000 between them for two plots, comprising part of the subject land. These proposed sales could not proceed because of the compulsory acquisition and Mr Leswisse and Mr Wellington then purchased two different plots at Heol Broch, Birchgrove, within half a mile of the subject land.

Mr Batten considered that the best evidence of value was provided by sales of plots at Jersey Marine on a site now known as Heather Rise. In 1992/93 eight plots had sold relatively easily there at £35,000 each, the purchasers incurring extraordinary site costs of some £10,000 in each case. The site sloped very steeply and the extraordinary costs included raft foundations and retaining walls. The development was situated immediately off what was formerly a busy trunk road and was close to an oil refinery. Unlike the subject property, it did not have the benefit of a local railway station.

Mr Batten's second comparable consisted of four self-build plots on land at Coedsaeson Farm, Birchgrove, sold in about December 1995 for between £22,000 and £30,000 each, depending on size and extraordinary site costs. He considered that market activity had increased between the date of these sales and the relevant valuation date.

Mr Batten's valuation of the subject land was £455,000, calculated as follows:

£

15 Plots @ £35,000 each

525,000

Less: development costs:

Infrastructure:

Road, footpaths and lighting

Surface water and drainage

Site investigation (drilling and geologist's report)

35,200

32,000

5,000

72,200

452,800

Add value of 1.06 acres of wood/scrubland

@ £1,500 per acre

1,590

454,390

Say £455,000

In the course of cross-examination, Mr Batten commented on a number of matters arising from his valuation, as follows:

(1) He considered that the individual plots to be created on the subject land would all be sold over a period of 12 to 18 months.

(2) In order to sell the plots before constructing roads and services, the developer would need to guarantee that such infrastructure would be provided by way of a bond or similar instrument. This would have cost implications.

(3) He was not able to refer to any case in the real world where plot purchasers were queuing on the same day to buy all the proposed plots at the full individual plot values, reduced only by a proportion of the cost of infrastructure.

(4) His approach took no account of delay in selling all 15 plots, nor did it include an allowance for developer's profit or selling fees. He had assumed that any professional fees in connection with the development were included in the infrastructure costs. Competition among estate agents - anxious to obtain introductions to potential mortgage business - was so great that commission payable on sales would be minimal. In answer to a question from me, he said that estate agents' commission could be up to £500 per plot.

Case for the acquiring authority

The acquiring authority's planning expert was Mr Huw Wyn Jones, a principal planning officer in the local plan section of the authority's planning department, who has worked for the authority since 1979. He considered that, on the valuation date, the potential existed in the no-scheme world to develop up to four detached properties, or four semi-detached and one detached dwelling in the south of the site, site conditions permitting. The remainder of the site could only realistically be developed, if at all, as part of a wider comprehensive scheme. Such comprehensive development would require a significant element of land assembly and public subsidy in order to provide the necessary infrastructure and overcome the existing site problems so as to make the wider area suitable for development.

The local plan pre-dated the Swansea Vale development proposals, which originated in 1992. At the valuation date the subject land was allocated in the local plan review consultation draft as part of the Swansea Vale development area. It was not allocated for development within the development strategy other than for a possible link road. Due to the difficult nature of the site, it was only considered suitable for landscaping as part of the open space/golf allocation of the updated development strategy. Since this allocation required comprehensive restructuring it was not appropriate to use it as a basis for assessing alternative uses in the no-scheme world. There were currently four dwellings fronting Gwernllwynchwyth Road close to the subject land. Where the existing ground level was the same as the road, he considered it would be acceptable to build approximately four houses adjacent to the road. Such a pattern of development would be in keeping with the existing urban form. It would not have been acceptable for development to take place on the lower levels of the site away from the road frontage. This would have led to the "opening up" of a wider area which would not be in conformity with the existing pattern of development. The boundary of the lower part of the subject land was indistinguishable from the adjacent derelict land.

These comments applied to the no-scheme world. In the real world, any development of the subject site would have been regarded as piecemeal and would prejudice the comprehensive development of the area. In terms of the existing settlement at Llansamlet, any development extending down the slope into the wider area would constitute piecemeal development. Moreover, any such development would clearly be piecemeal in the context of the proposals for comprehensive development contained in the local plan. It was the scale of the proposed development that was unacceptable, not the fact that it took the form of a cul-de-sac.

The investigations into the Swansea Vale scheme had shown that a major new spine road would be required to serve a comprehensive development. It was unlikely that a comprehensive development in the area could have been achieved by private sector initiative alone.

The local plan provided the statutory planning policy basis for considering alternative development proposals on the site, the relevant policies being H1 and R6 as part of a much larger area. The policy on in-fill development was H2 and might have justified a limited development on the land adjacent to Gwernllwynchwyth Road. The existing development form within the immediate area surrounding the subject land was primarily ribbon development along the main roads. There was currently no other residential development to the north of Peniel Green Road, and a total of 4 dwellings fronting Gwernllwynchwyth Road.

The claimant's suggestion of constructing 15 units off a new access road would have taken development beyond the threshold of the existing urban envelope, altering the development pattern in the area. It would have constituted piecemeal development and, in the no-scheme world, would have set a precedent for further similar releases. There was a significant change of levels over the site, with land falling away from Gwernllwynchwyth Road in a north-westerly direction. Part of the site clearly orientated in topographical terms to Gwernllwynchwyth Road, namely a frontage stretch of approximately 40 metres north from "Danycoed". Beyond this point the land fell away sharply from the road and frontage development would therefore be inappropriate. The remainder of the site related topographically to the larger areas of other land to the west, and it would only have been appropriate for that land to be considered for development as part of a larger comprehensive scheme, such as the one underlying the compulsory acquisition.

The claimant's proposal did not relate to clearly defined boundaries, particularly on the western side which would take development down the slope, ending abruptly in the open area. The proposal would also have been contrary to the adopted local plan policy H1, which stated in its amplification that piecemeal development in the short term should not be allowed to prejudice longer term comprehensive development. In fact, the Swansea Vale scheme envisaged that the subject land would be largely used for landscaping and as the route of an access road. Indeed, the frontage to Gwernllwynchwyth Road formed the most logical eastern access point for a wider comprehensive scheme. Excluding it from a comprehensive development would have been prejudicial to the proper planning of the scheme. Even if planning permission had been forthcoming in accordance with the allocation on the local plan - and he did not accept that it would - that allocation was for open space as well as residential. It would have been more appropriate to develop the lower land outside and to the north of the subject land for housing, and landscape the higher ground as part of an open space scheme. This approach was supported by the detail of the Swansea Vale proposals.

The appeal decision in 1987, permitting residential and caravan development further along Gwernllwynchwyth Road, was not relevant to the current exercise. Firstly, that decision was issued well before the local plan was adopted and before the comprehensive schemes for the area, which eventually became the Swansea Vale scheme, had been prepared. At the valuation date, the adopted local plan policies would not have allowed piecemeal development in this area other than as part of a comprehensive scheme. Secondly, the site characteristics were very different. The subject land was much more open, visible and prominent than the appeal site. The boundaries of the latter were more clearly defined, including the road and the motorway and with vegetation around the southern portion of the site. Finally, a major factor influencing the inspector's decision had been the absence at the time of a 5 year supply of housing land; a situation that did not apply at the valuation date.

Rather surprisingly, Mr Huw Jones' expert's report made no reference to the provisions of the structure plan. In oral evidence, he said that the housing policies set out in the structure plan - which was not site specific - were not relevant to the subject land. That land was not covered by Policy H2, since it was clearly outside an existing urban area and had not been designated on any local plan as being within such an area. Although the key diagram to the structure plan showed the land as being within the existing built-up area, that diagram was expressly not the structure plan. It was the function of the local plan - not the structure plan - to define the boundaries of an existing urban area.

In cross-examination Mr Huw Jones accepted that the provisions of the structure plan were relevant to the determination of agreed policies, but not to the detailed development of the subject land or any other specific site. He also accepted that there was a divergence of opinion within the planning department of Swansea City Council as to whether the subject land lay within the existing built-up area. He agreed that the land appeared on a plan forming part of the local plan entitled "Proposals Map: Urban Area Sheet 10", but this did not necessarily mean that all the land shown on that plan could properly be described as lying within an urban area. Although the planning authority indicated the extent of certain existing settlements on its development plans, it had not done so in the case of Llansamlet. In his opinion, however, the subject land comprised a field beyond the existing settlement pattern and, as such, was clearly not within the urban area.

He agreed that the reference in policy H1 of the local plan to the land north of Llansamlet being required for residential development "in the longer term" applied to the position at 27 February 1996. It followed that the designation H1/R6 applied to the subject land at that date.

Asked about the site at Ffordd Scott, for which residential planning consent was granted on 4 October 1994, he explained that it was shown on the proposals map as being mainly unallocated white land. The route of the access road leading to the development and part of the development itself were designated R1 (playing fields and sports facilities) and R4, where proposals for private provision of sports facilities would be considered on their individual merits. In fact, the permitted development contained very little open space. Mr Jones considered that the Ffordd Scott site was on the edge of the urban settlement of Birchgrove. He agreed that it was not within the existing built-up area, although it was much better contained than the subject land in terms of the urban area. There was residential development on the eastern boundary and a road to the west. To the north was a formal park with associated development - changing facilities and bowling greens. He had not discussed with members of the planning department why residential development had been permitted on the site, notwithstanding that part was designated R1/R4. Drainage for the development of approximately 75 dwellings was by a private treatment works. It was intended that it would be connected to the main drainage system in due course.

So far as item ii of the housing strategy in the structure plan was concerned, he accepted that the subject land was not part of an agricultural holding. He did not think that the land could properly be described as "vacant", however, because that implied that the land would normally have a beneficial use in the longer term. He did not necessarily agree that residential development of the land would amount to beneficial use, since the site was part of a wider area of open space.

In re-examination, he said that the Ffordd Scott site was outside the Swansea Vale development area and in the 1989 local plan it was not covered by the designation reserving it from piecemeal development.

Mr Robert William Harlow gave valuation evidence on behalf of the acquiring authority. He has had some 18 years professional experience, qualifying as a chartered surveyor in March 1985. He joined the Swansea office of Cooke and Arkwright in May 1983 and, following the acquisition of that firm by Black Horse Agencies in 1988, was appointed an associate director of the commercial division in 1989. In September 1991 he jointly undertook a management buy-out of the commercial division of the Swansea office and formed Cooke and Poolman, subsequently re-named Poolman Harlow, where he is responsible for all general practice and valuation related matters.

He agreed with Mr Batten that it would have been physically possible for the claimant to contract to sell various plots to different purchasers over a period of time and to carry out the necessary infrastructure works himself. This was not the way he had approached the valuation, however. He had assumed that the subject property had been sold on the valuation date as a single entity to a single purchaser.

His principal valuation was on the basis that the subject land had the benefit of permission for four detached houses or four semi-detached and one detached house as suggested by Mr Huw Jones. He considered that the four detached houses would produce a higher site value, because they would sell to self-build individuals who were not entirely profit-driven, unlike developers who would be more interested in the semi-detached scheme. Starting with the plan prepared by Mr Seager in January 1988, Mr Harlow assumed that the four building plots adjacent to Danycoed would be reduced to three, each with a frontage of approximately 12 metres and a depth of 44m, giving a total area of 528m2. The fourth plot would encompass the remainder of the site and have an area of some 1.05 hectares.

Mr Harlow's valuation assumed that the three smaller plots would each be sold for £30,000 and the larger one for £45,000. These prices were estimated on the basis that the vendor would be responsible for the cost of extending services to each plot, constructing a pumped drainage system for foul drains and a surface water drainage system, together with the design work in connection with all these matters. He also assumed that the vendor would undertake a site survey to establish the mining history, test for contamination and mark out the individual plots on site. On this basis, Mr Harlow arrived at a valuation of £70,000. He considered that this figure was more than would be paid by another potential purchaser - an individual who intended to sell three plots, leaving himself with the best plot for nothing.

A value of £70,000 was approximately 2.25 times the price paid by the claimant for the site without planning consent in 1990. It was consistent with that price, taking into account that there was no conclusive evidence of increasing land values in the interim.

Mr Harlow also prepared two residual calculations on the assumption that the subject land had planning consent for the 15 units suggested by Messrs Harmer and Seager. The purpose of this approach was to see whether a purchaser would implement the 4 house permission immediately, or decide to pursue consent for 15 plots. These calculations did not attribute a value to the disused railway line, which would be used to accommodate a hydrobrake and pumping station/sewage station. It assumed that 11 of the plots would each sell for £25,000 and four for £30,000, the difference in price depending mainly upon the quality of the view to be enjoyed for each plot, although the larger plots might achieve higher prices. Gross realisations would therefore be £395,000, an average of £26,333 per plot. He assumed that fees would be incurred on purchasing the subject land based on 2.75% of the purchase price. He assumed fees on sale based on 3% of the sale price and profit at 20% of the sale price. The cost of funding the purchase price and development costs would be 12% per annum. His two residual calculations produced site values of £107,000 and £120,000, depending on whether it would take one or two years to sell the plots.

The development costs used by Mr Harlow did not accord with those suggested by Mr Seager. They were as follows:-

Road

Private drive

Interceptor

Drains

Other Services

Fees on above @ 15%

Site/soil survey, testing for contamination and marking of plots

£

42,750

3,000

1,000

51,600

34,500

19,928

7,500

£160,278

Mr Harlow's figures for drains and other services were based on information obtained from the acquiring authority. He had not cross-checked these against any published material, but had merely relied on his general experience of dealing with developments.

As a cross-check, he had regard to the sale of Bryngelli Park, where a site with planning consent for 18 units was sold in August 1993 for 30% of the cumulative price of all the plots. If the same percentage were applied to the estimated gross realisation from the subject site, it would again produce a site value of approximately £120,000. Thus the grant of consent on appeal for a development of 15 plots offered a potential extra site value of up to £50,000. He did not consider that the costs and risk involved would justify proceeding with such an appeal. Consequently, the value of the subject land would be limited to £70,000 - its value with the limited planning consent.

He considered that any developer of the site would take a conservative approach and construct all dwellings on raft type foundations. This would comfort purchasers of the houses, who were likely to be aware of the historic use of the site. The relatively high cost of drainage that he adopted resulted from his assumption that a system would be required to pump foul waste back to the adopted foul drainage system for the area.

In estimating the prices at which the individual plots would be sold, he had had regard to various comparable transactions. The most useful evidence was the price of £30,000 each offered for two plots on the subject site itself in October 1995. Both these plots were situated at the top of the hill with a full view of the surrounding area. They were also larger than the 15 plots shown on the plan prepared by Mr Seager.

The evidence produced by Mr Batten at Heather Rise, Jersey Marine was also useful. Mr Harlow did not agree that the location of Heather Rise was inferior to the subject land. Both sites had advantages and disadvantages. The plots at Heather Rise were in an elevated position, backing onto woodland and facing a nature reserve. The sales of individual plots at Bryngelli Park (referred to earlier) were also instructive. The different prices achieved suggested that the principal factor influencing value was not the size or location of a plot, but its outlook.

Mr Harlow also derived assistance from some self-build plots at Ocean View, Jersey Marine, which were available on the market on the relevant valuation date. The prices achieved for the three plots sold in 1997 did not show a material increase over those realised at Heather Rise in 1992. Apart from the overriding importance of outlook on value, the sales of individual plots led Mr Harlow to conclude that purchasers of self-build plots were prepared to absorb the cost of constructing their houses on raft type foundations and of constructing retaining walls, but they expected their plots to be served by an adopted highway and have main services available.

In cross-examination Mr Harlow agreed that he had not previously been aware that drainage from the development at Ffordd Scott was by a treatment works and that this had been approved by the local authority. He did not contend that a treatment works would not work at the subject site. He did not say that there was definitely no increase in land values between 1993 and 1997; merely that there was insufficient evidence to prove that the market had moved in any particular direction.

Decision

In this case the parties disagree on the number of units for which planning permission is to be assumed, the method by which the land is to be valued and the level of value that is appropriate.

I deal firstly with planning. For the claimant, Mr Jones submitted that the applicable statutory provisions were the Land Compensation Act 1961, s16(3) and s16(6)(b) and the Town and Country Planning Act 1990, s70(2).

S16(3) says

"If the relevant land or any part thereof (not being land subject to comprehensive development) consists or forms part of an area shown in the current development plan as an area allocated primarily for a range of two or more uses specified in the plan in relation to the whole of that area, it shall be assumed that planning permission would be granted, in respect of the relevant land or part of thereof, as the case may be, for any development which -

(a) is development for the purposes of a use of the relevant land or that part thereof, being a use falling within that range of uses, and

(b) is development for which planning permission might reasonably have been expected to be granted in respect of the relevant land or that part thereof, as the case may be."

S16(6) says

"Where in accordance with any of the preceding subsections it is to be assumed that planning permission would be granted as therein mentioned -

(a) the assumption shall be that planning permission would be so granted subject to such conditions (if any) as, in the circumstances mentioned in the subsection in question might reasonably be expected to be imposed by the authority granting the permission, and

(b) if, in accordance with any map or statement comprised in the current development plan, it is indicated that any such planning permission would be granted only at a future time then ... the assumption shall be that the planning permission in question would be granted at the time when, in accordance with the indications in the plan, that permission might reasonably be expected to be granted."

S70(2) says

"in dealing with such an application (for planning permission) the (local planning) authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."

The effect of sections 16(3) and 70(2) was that H1/R6 uses should be assumed (i.e. housing/informal open space and landscaped areas), since these were the relevant land allocations on the local plan. One must consider what planning permission within those two uses might reasonably have been expected to be granted, having regard to the provisions of the local plan and the structure plan. Against that background, Mr Jones submitted that the evidence pointed clearly to planning permission being granted for fifteen houses as suggested by Mr Force.

For the acquiring authority, Mr Alesbury denied that there were any statutory planning assumptions to be made, apart from that laid down by s14(3) of the Land Compensation Act 1961, which says

"Nothing in those provisions shall be construed as requiring it to be assumed that planning permission would necessarily be refused for any development which is not development for which, in accordance with those provisions, the granting of planning permission is to be assumed".

He did not accept that the subject land was covered by s16(3). It was not allocated for a particular use on the current development plan. The structure plan did not purport to allocate anything in a site-specific sense. The local plan only allocated for housing land which was indicated both on the proposals map and the land supply schedule. The subject land was not included in the land supply schedule; it would only be required in the longer term. Consequently, the only assumption to be made was that which was applicable to all cases, and as allowed for by s14(3), that the value should take account of any permission which could reasonably be expected to have been granted in the no scheme, no CPO world.

In a world where everything was the same except for the non-existence of the actual effective CPO, it was unlikely that any planning permission would have been granted for any development on the site, whether of two, five or fifteen houses, because they would all have been seen as prejudicially piecemeal against the longer term objectives explained in the 1989 local plan. It was a concession on the part of the acquiring authority, recognising the fact that the local plan itself could be seen as containing the seeds of 'the scheme', or at least preparing for it, and seeking to apply the pro-claimant aspects of the Pointe Gourde principle, that the acquiring authority had sought to envisage a hypothetical situation where there were no scheme-related artificial constraints on the site, but only those which would have applied in any event. On a reasonable view of the 'no scheme world', planning permission could (but not definitely would) have been achievable for four or five houses on a frontage basis (because of the topography) on a scale in keeping with the existing urban pattern to the south. It would not have been expected for a larger fifteen house development tumbling down the slope into the open land area. This would have been a piecemeal extension of development, contrary to all normal planning principles and, in the particular local topography, much more prominent and intrusive into open land than the mere addition of a few extra houses on the plateau where the rest of Llansamlet was situated.

Mr Alesbury referred to Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565 and Myers v Milton Keynes Development Corporation (1974) 27 P and CR 518(CA).

I am satisfied that Mr Alesbury's submission as to the non-applicability of s16(3) is well-founded. Policy H1 of the local plan is quite clear. It states the City Council's policy as being that

"the sites indicated on the proposals map and in the land supply schedule be allocated for residential development."

The subject land was not included in the land supply schedule. It is true that, in amplification of policy H1, the written statement indicated that the land had residential development potential as part of an overall comprehensive development scheme in the longer term and Mr Huw Jones accepted that "the longer term" included the valuation date. In my judgment, however, this does not alter the fact that at that date the 1989 local plan was still the extant development plan, and it did not allocate for residential development sites which were not included in the land supply schedule.

I also agree with Mr Alesbury that, in assessing the value of the subject land, it is necessary to decide what planning permission might reasonably have been granted, disregarding the reference in the local plan to the residential development potential, as part of an overall comprehensive development scheme, of the land north of Llansamlet, because in effect that reference reflected the scheme underlying the compulsory acquisition. In my opinion, the result of any such planning application must be considered in the light of the provisions of the structure plan, which had been adopted shortly before the valuation date. The County Council's housing strategy as described in that plan contained five elements, the fourth of which reflected the existence of the scheme and should therefore be disregarded. The remaining elements of the strategy were as follows:

"i Release of sufficient land to permit the development of 20,000 new dwellings in the county by 2006, on a wide range of sites to meet local needs, avoiding valuable landscape, ecological and heritage features.

ii Encouragement of residential development on derelict, vacant and underused sites in urban areas, to bring about environmental improvements and alleviate development pressures on the countryside.

iii Strict control over further development in environmentally sensitive areas such as Gower, and areas of infrastructure constraints such as West Swansea.

v The encouragement of substantially increased levels of house-building in east Swansea and Port Talbot."

Policy H2 of the structure plan read as follows:

"The development for housing of derelict, vacant or underused sites within existing urban areas will be encouraged, subject to there being no overriding local planning, environmental or highway considerations".

I agree with Mr Force that the construction of 15 houses on the subject land would be consistent with items i and v and complementary to iii. The respective planning experts disagreed on whether such development would be covered by item ii and by policy H2 and in my view the answer is not clear-cut. The site is effectively vacant and arguably those areas formerly in mine-related use are derelict; it is certainly underused; there is no overriding highway consideration impeding the proposed development and some might consider that it would improve the environment in the area. In support of his contention that the land was in an urban area, Mr Force relied mainly on the structure plan key diagram, which appeared to show the existing built up area as including the subject land and extending north as far as the M4 motorway. I inspected this area in company with a representative of each side. It was clear from this inspection that much of the area in question, far from being built up, is in fact open countryside. The key diagram contains an express statement to the effect that it is not the structure plan. In any event, both planning experts agreed that the structure plan was not site-specific. In all the circumstances, I derive no assistance from this diagram. In my opinion, the subject site may fairly be described as being situated on the edge of the urban area of Llansamlet. Item ii and policy H2 are not conclusive, but on balance I consider they provide more support for than against a development of 15 units.

A helpful indication of the likely attitude of the local planning authority to a planning application for 15 units is, in my view, provided by its decision to grant approval to the cul-de-sac development at Ffordd Scott. That permission related to a substantially more extensive development than that proposed for the subject land and it was granted only some 18 months before the valuation date, on land which was mainly unallocated white land in the local plan. The development was on the edge of the urban area of Birchgrove, just as the subject land is on the edge of Llansamlet. Both sites were to the north-east of Swansea city centre and largely enclosed by roads, railway lines and residential development, but land on the western boundary of the subject land was undeveloped and the northern boundary of Ffordd Scott bordered playing fields. Finally, main drainage was not directly available to either site. At Ffordd Scott, the local authority approved the use of a treatment works, which is also suggested by the claimant as being appropriate at the subject site.

The second review of the structure plan had not been adopted when the Ffordd Scott development was approved. The acquiring authority did not suggest, however, that there was any material change in circumstances that meant that, by the valuation date, the local planning authority's decision to grant approval at Ffordd Scott was no longer appropriate. Moreover, having viewed the subject land from some distance, at locations suggested by Mr Force and Mr Huw Jones, I do not consider that the proposed development would constitute an unacceptable intrusion into open land. I conclude, therefore, that the form of development proposed by Mr Force would have been approved by the local planning authority, or, if necessary, on appeal.

I now turn to the approach which should be adopted when valuing the subject land. Mr Jones referred to s5(2) of the Land Compensation Act, 1961, which says:

"The value of land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise."