England and Wales Lands Tribunal

[2000] EWLands ACQ_76_2000 (06 September 2000)

ACQ/76/2000

LANDS TRIBUNAL ACT 1949

COMPENSATION - preliminary issue - Highways Act 1980 s 73 - claim for compensation for injurious affection as result of improvement line - whether entitlement to compensation - held no improvement line prescribed by compensating authority - no entitlement to compensation

IN THE MATTER of a NOTICE OF REFERENCE

BETWEEN CITYPARK PROPERTIES LIMITED Claimant

and

BOLTON METROPOLITAN BOROUGH COUNCIL Compensating

Authority

Re: Land adjoining Bank Street & Cross Street

Farnworth, Bolton

Before: The President

Sitting at: Manchester Combined Tax Tribunal, Warwickgate House,

Warwick Road, Old, Manchester M16 OGP

on 30 & 31 August 2000

The following cases are referred to in this decision:

Westminster Bank v Beverley Corporation [1971] AC 508

London Borough of Hillingdon v ARC Ltd (16 June 2000, unreported)

Minister of Agriculture v Matthews [1949] 2 All ER 724

Minister of Agriculture v Hunkin (1948, unreported)

Rhyl Urban District Council v Rhyl Amusements Ltd [1959] 1 All ER 257

John Hoggett QC and Paul Tucker instructed by Pannone and Partners, solicitors of Manchester, for the Claimant

Stephen Sauvain QC instructed by the Solicitor to Bolton Metropolitan Borough Council for the Compensating Authority


 


DECISION ON A PRELIMINARY ISSUE

Introduction

1. This preliminary issue arises on a claim for compensation made by the claimant under sections 73(9) and 307(1) of the Highways Act 1980. Section 73(1) gives a highway authority power to prescribe an improvement line for the widening of a street, and where they do so no new building may be erected within the line without the consent of the of the authority. Subsection (9) gives a right to compensation to any person whose property is injuriously affected by the prescribing of an improvement line under the section. From 6 January 1989 until 20 October 1998 the claimant was the owner of land adjoining Bank Street and Cross Street, Farnworth, Bolton. The land comprises most of a roughly rectangular area bounded by Bank Street, Cross Street, King Street and Market Street. It excludes most of the Market Street frontage as well as parts of the frontages of the other three streets. The claimant's case is that in a resolution of 15 June 1995 the council prescribed an improvement line under section 73 which showed Bank Street widened on the claimant's side. By reason of this, the claimant says, its land was injuriously affected and it claims compensation under section 73(9). The case for the council is that no such improvement line under section 73 has ever been prescribed, so that there is no entitlement to compensation. This is the preliminary issue that falls to be determined.

The Facts

2. There is an agreed statement of facts, and evidence was given by Stephen Edmund Barker, a director of the claimant company, Moira Livesey, Senior Land Charges Officer for the Council, and Aubrey McCreesh, a Group Engineer in the Council's Planning and Engineering Services Department. On the basis of this, I find the following facts.
3. The claimant company, then called Porthmarsh Limited, acquired the land on 6 January 1989. The land comprised a redundant bakery extending to over 70,000 sq ft of buildings. It lies on the edge of the town centre opposite the town's market and bus station. Shortly after purchase of the land planning permission was sought for the redevelopment of the whole site by the demolition of the former bakery and the erection of a 30,000 sq ft DIY store and garden centre. The Council granted outline planning permission on 4 May 1989. There was an approved plan, drawn by Mr Barker and entitled "General arrangement of site". It included a number of annotations relating to highway lines. At the Market Street/King Street junction it showed: "Junction improvement proposed by Bolton MBC para 4.3(iv) minor schemes TSG bid for 1989/90." Other notations included these: on Cross Street, "New pavement set back to widen Cross Street along ultimate improvement line;" and, on Bank Street, "Ultimate back of footway improvement line." These features of the proposal were the outcome of negotiations between Mr Barker and officers of the Council. On 8 June 1989 the Director of Planning and Engineering Services submitted a report to a meeting of the Planning and Engineering Services Committee. One of the purposes of the report was stated to be:

"Identify and seek approval to a new starts programme of highway and bridge schemes within the approved Capital Programme for 1989/90 under the category 'Minor Highways' for which an allocation of £277,000 has been approved."

4. The report recommended that the committee "Approve the new starts programme of schemes as described in Appendices 'A' and 'B' attached to the report." Among the schemes in Appendix A was :

"Market Street/King Street Junction Improvement (Drg No 33124/1).

Major cross town movement between Market Street and Albert Road is achieved via King Street which also accesses the Bus Station and market. Substantial commercial redevelopment is imminent on sites north of the road.

It is proposed to improve the junction and install signal control including pedestrian phases. Private land acquisition is required for the scheme.

Preparatory to the construction of the above mentioned schemes in future years, subject to the availability of finance, it is proposed to acquire some of the necessary land for the junction improvements and complete detailed design of the schemes during 1989/90."

5. Drawing number 33124/1 was entitled "Market Street/King Street, Farnworth, Bolton. Proposed signal controlled junction with associated improvements to Cross Street and Bank Street." It showed by parallel lines, indicating proposed kerb lines and back of footpath lines, King Street widened on its north side, and Bank Street widened on its south side, and wider radii on the corners of each of the four roads bounding the rectangular area. In these respects it reflected the features agreed earlier that year between Mr Barker and council officers. The committee resolved to approve the new starts programme described in the report. No notice in relation to this resolution or the implementation of the scheme was given to the claimant or anyone else, and no entry was made in the Local Land Charges Register in respect of the land consequent upon the resolution. It is not contended on behalf of the claimant that the resolution prescribed an improvement line for the purposes of section 73.
6. The new DIY store permitted in 1989 was in the event not built. Instead the central area only of the building complex was demolished, leaving two units, one fronting King Street, the other fronting Bank Street. Both units were refurbished, the one fronting King Street for use as a DIY store, the one fronting Bank Street as light industrial premises. Planning permission was granted on appeal in December 1990, and the development was carried out in 1991. The result was that, whereas the 1989 redevelopment scheme provided for a widened Bank Street, the existing building fronting Bank Street (and thus impeding any such widening) has remained.
7. On 23 April 1993 the Council granted planning permission for the change of use of the Bank Street unit from light industrial/business use (class B1) to retail use (class A1). That permission has not been implemented. Mr Barker says that this is because of the improvement line resolved on by the Council. The company's knowledge of the retail market enabled it to conclude that no potential retailer would sign up to a long lease of the building if it was aware of the improvement line.
8. On 15 June 1995 the Planning and Environment Committee of the Council had before it a report entitled "Market Street/King Street, Farnmouth. Proposed junction improvement." It had been prepared by Mr McCreesh and its purpose was stated to be "to seek approval to a revised layout for the Market Street/King Street junction improvement." Under "Progress to date", the report said:

"2.1 The layout for this junction and the adjacent highway network was originally approved in June 1989 and is shown on drawing 33124/1 appended to this report.

2.2 The improvement lines for King Street and Cross Street have been used to limit the redevelopment of the former Lion Bakery. These roads have therefore been widened by the Developer of the First Stop D.I.Y. Unit at his own expense where this was feasible."

9. Under "Revised Layout", before sub-paragraphs dealing with the Market Street/King Street junction itself, it said:

"3.1 The layout for the area has now been revised as shown on drawing number 7219/3 appended to this report, in order to accommodate changing circumstances and in response to representations made by local Members.

(a) The redevelopment of the Lion Bakery did not involve the demolition of the Britannia Inn or of property fronting onto Bank Street. It has therefore been necessary to indicate that the improvement line in these areas will only be implemented should the properties be demolished for purposes other than highway purposes."

10. Drawing 7219/3 had been drawn by Mr McCreesh. It was entitled "Market Street/King Street, Farnworth. Proposed signal control junction with associated improvement to Cross Street and Bank Street." It showed the new junction and also the consequential traffic lane markings not only in Market Street and King Street but in a road called Darley Street also. Peel Street was shown to be one way. Parallel dot-dash lines were shown on the south side of Bank Street and at the King Street/Cross Street junction, evidently indicating the kerb line and lack of pavement line respectively of proposed improvements. There was a single dot-dash line on the north site of Bank Street. The key relating to the dot-dash line stated:

"Improvement line to be implemented when land/property becomes available or cleared for reasons other than highway purposes."

11. The committee resolved in accordance with the officer's recommendation:

"(i) That the highway improvement shown on drawing No 7219/3 be approved for local search and development control purposes."

Authorisation for land acquisition and the implementation of the scheme was also given.

12. On 11 April 1996 the committee approved an amended layout for the Market Street/King Street junction improvement with advance stop lines for cyclists on all three arms of the junction. The amendments were shown on drawing 33124/4 (the 1989 drawing), which incorporated the markings, and the key, shown on drawing 7219/3 (the 1995 drawing).
13. In June 1996 Mr Barker was in touch with Mr McCreesh on the proposed junction improvement. His concern was that drawing 33124/4 showed the existing right-turn into the site from King Street eliminated. Mr McCreesh amended the drawing to show a layout which retained the right-turn. Then, in a letter dated 9 July 1996 to Mr McCreesh, Mr Barker addressed the question of Bank Street and Cross Street. He said:

"On your drawing 33124/4A dated 22nd March 1996 you show Bank St widened along the frontage of our property and a widened junction to Market St affecting No's 58, 60 and 62 Market St (not in our ownership).

Please will you explain the Highway Engineering reason/s behind your decision to introduce this road along this side of Bank St as against the other side of Bank St.

Please will you explain the exact status of this road line and what is meant by the drawing key note 'Improvement line to be implemented when land/property becomes available or cleared for reasons other than highway purposes'.

You will readily appreciate as your proposal to widen Bank St/Cross St can only be implemented by the demolition, in part or in whole, of our existing 27,000 s.f. building and the knowledge the Council may have such a proposal will affect our ability to let the existing property and or sell it for any use thus significantly affecting its value. We are also concerned your highway proposals will unfairly prejudice any future planning application on the site and that these highway works do not arise out of any current of proposed use of the site."

14. On 6 September 1996 Mr McCreesh replied as follows:

"The key to drawing 33124/4A explains that improvement lines shown in chain dotted lines would only be implemented when the land or property becomes available or cleared for reasons other than highway purposes. An example of this scenario would be if the land was cleared and subsequently redeveloped.

The Council has no intention of widening Bank Street whilst the property remains, since the scheme would not be viable."

15. Further correspondence ensued in which Mr Barker demanded to know why it was proposed to widen Bank Street on the south side rather than the north and what the statutory powers were under which the road improvement line had been approved. On the latter point Mr McCreesh, having sought and obtained legal advice, replied as follows in a letter dated 9 January 1997:

"As explained in my letter dated 25 September, 1996, the improvement line was first prescribed in 1989, when it became known that the former Lyon Bakery was likely to be redeveloped. Clearly, the improvement line was therefore prescribed on the Lyon Bakery site, which is now in your ownership.

In answer to your second question, I can confirm that Section 73 of the Highways Act 1980 empowers the Council as Highway Authority to prescribe an improvement line on one side or both sides of a street. The prescription of a highway improvement line effectively precludes the erection of new buildings except with the consent of the Highway Authority, who may impose conditions."

16. Mr Barker then wrote to the Council on 6 March 1997 to say that the company had taken advice and that "in the absence of any formal notice from yourselves we must take your letter of 9th January as being the Notice required under the Act." Accordingly, he said, they sought compensation for injurious affection. A letter dated 14 April 1997 from Mrs S C Stone, a solicitor with the Council, said that the letter of 9 January 1997 was not intended to constitute notice under the Highways Act 1980 since it was understood that, at the time of the decision to prescribe the improvement line, the company had no legal interest in the land.
17. On 28 January 1998 the Council, on the recommendation of the Highways Sub-Committee, resolved that "the tentative improvement proposal at Bank Street/Cross Street, Farnworth, be abandoned," and that the revised Market Street/King Street junction scheme be approved for funding . On 20 October 1998 the claimant sold the land.
18. Mrs Livesey, who has worked as a local land charges officer at Bolton since 3 June 1985, has never been asked to register an improvement line under section 73 of the Highways Act 1980. Mr McCreesh, who has been employed by the Council since 1980 and from about 1991 was responsible for designing highway layouts and submitting them to the Council for approval, was not aware of the provisions of section 73 until he sought advice following Mr Barker's letters which asked under what statutory power the council had acted. The Council did not have in place any procedures for following section 73.

The statutory provisions

19. So far as material section 73 provides:

"(1) Where in the opinion of a highway authority -

(a) a street which is a highway maintainable at the public expense by them is narrow or inconvenient, or without any sufficiently regular boundary line, or

(b) it is necessary or desirable that such a street should be widened,

the authority may prescribe in relation to either one side or both sides of the street, or at or within a distance of 15 yards from any corner of the street, a line to which the street is to be widened (in this section referred to as an 'improvement line').

(2) Where an improvement line prescribed under this section in relation to any street is in force, then, subject to subsection (3) and (4) below, no new building shall be erected, and no permanent excavation below the level of the street shall be made, nearer the centre line of the street than the improvement line, except with the consent of the authority who prescribed the line and the authority may give a consent for such period and subject to such conditions as they may deem expedient.

(3) The prohibition imposed by subsection (2) above does not affect any right of statutory undertakers to make an excavation for the purpose of laying, altering, maintaining or renewing any main, pipe, electric line, cable, duct or other work or apparatus.

(4) Where an authority prescribed an improvement line under this section, a person aggrieved by the decision to prescribed the line or by the refusal of consent under subsection (2) above or by the period for which the consent is given or any conditions attached to it may appeal to the Crown Court...

(6) If a person contravenes the provisions of this section, or any condition imposed in connection with the giving of a consent under it, he is, without prejudice to any other proceedings which may be available against him, guilty of an offence and liable to a fine not exceeding £25; and if the offence is continued after conviction he is guilty of a further offence and liable to a fine not exceeding £2 for each day on which the offence is so continued.

(7) Where in the opinion of a highway authority an improvement line prescribed by them under this section, or any part of such a line, is no longer necessary or desirable and should be revoked, they may revoke the line or that part of it.

(8) Schedule 9 to this Act has effect in relation to the prescription of an improvement line under this section and to the revocation of such a line or any part of it.

(9) Any person whose property is injuriously affected by the prescribing of an improvement line under this section is, subject to the following provisions thereof, entitled to recover from the authority who prescribed the line compensation for the injury sustained...

(13) In this section 'building' includes any erection however, and with whatever material, it is constructed and any part of a building, and 'new building' includes any addition to an existing building."

20. Schedule 9, so far as material, provides:

"(4) A line which a highway authority propose to prescribe shall be shown on a plan to be signed, if the authority are a council, by the proper officer of the council.

(5) The plan shall be deposited at the offices of the authority or, if the Minister is the authority, at such place as he may direct, and may be inspected by any person free of charge at all reasonable hours during a period of one month from the day on which it is so deposited.

(6) As soon as the plan has been so deposited the authority shall give notice of the proposal to prescribe the line and of the times and place at which the plan may be inspected, and of the effect of section 73 of this Act or, as the case may require, section 74 of this Act and of paragraph 7 below, to every owner, lessee and occupier of land affected.

(7) The authority shall consider any objection to the proposed line made within 6 weeks from the date on which the notices aforesaid were given and may then prescribe the line.

(8) Not later than 6 weeks after the date on which the authority prescribe the line they shall prepare a plan, duly sealed and authenticated, on which the line shall be shown and shall give notice of the prescribing of the line and of the time and place at which the said plan may be inspected to every owner, lessee and occupier of land affected."

The contentions of the parties

21. For the claimant Mr John Hoggett QC submits:

(a) That the resolution of 15 June 1995 is unambiguous, and on a proper construction it constitutes the prescription of an improvement line under section 73.

(b) Alternatively, if the resolution is ambiguous, regard can be had to the factual matrix, and this leads to the conclusion that an improvement line was prescribed.

(c) To the extent that the Council might argue that any ambiguity in the resolution should be resolved in their favour, they are estopped from doing so, since negotiations between the claimant and officers of the Council gave rise to an estoppel by convention from which it would be unconscionable for the Council to depart.

22. For the Council Mr Stephen Sauvain QC submits:

(a) There was no intention in 1989, 1995 or 1996 to prescribe an improvement line for the purposes of section 73 of the Highways Act 1980.

(b) The resolutions of the Authority cannot reasonably be construed as having had that effect.

(c) The resolutions are unambiguous - at least to the extent that it is apparent that no prescription of a statutory improvement line was intended - so that it is unnecessary to look at any surrounding factual matrix in order to construe the resolution.

(d) Alternatively, whilst it is unnecessary to look at the surrounding factual matrix in order to come to a conclusion whether or not the 1995 resolution resulted in the prescription of a statutory improvement line, the only reasonable conclusion that can be reached from looking at that matrix is that the council did not prescribe a statutory improvement line.

(e) There is no place for the operation of an estoppel by convention in the terms put by the claimant.

(f) If, contrary to the above, it is possible to have such an estoppel no such estoppel arises on the facts.

(g) It would not be unconscionable for the authority to be able to rely on the factual matrix to interpret the 1995 resolution.

I will consider in turn each of Mr Hoggett's contentions.

The "clear interpretation" of the resolution

23. The prescription of an improvement line under section 73 has significant legal consequences. No new building may be erected and no permanent excavation may be made on the street side of the line without the consent of the authority, and to do so constitutes a criminal offence. There is a right of appeal to the Crown Court against the decision to prescribe a line. The authority has to pay compensation to a person whose property is injuriously affected by the prescription of the line. A formal procedure set out in Schedule 9 is required to be followed before a line is prescribed. Notice is to be given of the proposal to prescribe a line, and any objection made within 6 weeks must be considered by the authority before the line is prescribed.
24. In the resolution of 15 June 1995 there is no mention of section 73, and no indication of which of the two justifications for the prescription applied in the Council's opinion. There is no trace of any of the Schedule 9 procedures having been followed - no reference, for instance, to notices given or lack of objections. The resolution and the drawing deal principally with matters that are not claimed to be part of the prescription of an improvement line (the Market Street/King Street junction improvement); and what the key identifies as improvement lines consist, within the rectangle, of pairs of parallel lines which indicate, respectively the kerb line and the back of pavement line. The resolution, so far from referring to the prescription of highway improvement line for the purposes of section 73, says that "the highway improvement" is approved "for local search and development control purposes."
25. It is quite manifest, in my judgment, that the resolution did not prescribe an improvement line for the purposes of section 73. In approving the proposals it was doing no more than approving a scheme of highway improvements that included, among other things, the widening of parts of certain roads. In the case of Bank Street and Cross Street these were only proposed to be implemented when land became available or buildings were cleared. It is very far from the sort of resolution one might have expected to see for the prescription of an improvement line under section 73. One might have expected to see reference to the section, a use of the word "prescribe", and reference also to the opinion of the authority as to the justification for the prescription, and to a plan which showed the improvement line by means of a single line. The conclusion, in the absence of any of these, that this was not a prescription under section 73 is inescapable.

Ambiguity and the factual matrix

26. In view of this conclusion it is strictly unnecessary for me to consider the factual matrix that would have been material if I had concluded that the resolution was ambiguous. I do so, however, for completeness. The relevant facts are those relating to the time when the decision was made. Later occurrences and expressions of views by officers are not relevant. It seems to me that, if one takes account of matters other than the resolution itself and the statutory provision that it is claimed to be based on, these only confirm the view I have expressed on the construction of the resolution.
27. It is right to bear in mind that the purpose to be achieved by an improvement line - the prevention of development on the highway side of the line - could also be achieved through the exercise of planning control powers. The legitimacy of doing this was recognised in Westminster Bank v Beverley Corporation [1971] AC 508; while the blight provision of the Town and Country Planning Act 1990 (section 150 and Schedule 13 para 15) have effect where the authority have resolved to approve a scheme of highway improvement. Thus the use of the words "improvement" and "improvement lines" does not in itself suggest the exercise of powers under section 73 rather than other powers that are available to the Council.
28. The officer's report made no reference to section 73 or the word "prescribe". It did not point out to the committee the effects (proprietary, criminal and compensatory) of a prescription under section 73. It made no reference to the Schedule 9 procedures. Under those procedures, the authority must first propose an improvement line and this proposal must be shown on a duly authenticated and signed plan, proper notice must be given, and the plan placed on deposit for six weeks. Then the authority must consider any objections made before going on to prescribe the improvement line. Finally they must prepare a duly sealed and authenticated plan and give notice of it to every owner, occupier and lessee of the land affected. None of this was done.
29. The evidence of Mr McCreesh was that there was no intention to recommend to the committee that a statutory improvement line should be prescribed. He was the officer responsible for advising the committee, and at that time he was unaware of the provisions of section 73.
30. The purpose of the resolution of 15 June 1995, quite manifestly in my view, was to bring up to date the scheme that had been approved in 1989. Mr Hoggett does not contend that the 1989 resolution constituted, or incorporated, the prescription of an improvement line for the purposes of section 73. If the intention in 1995 had been to make the Bank Street improvement lines ones having force for the purpose of section 73 this would, in the circumstances, undoubtedly have been stated. The purpose of the wording in the key to the drawing was clear - to indicate that the implementation of this particular element of the scheme, now that the Bank Street building was no longer to be demolished, must await some future scheme of redevelopment. The lines shown - kerb line and back of pavement line - were, in the terms of the resolution, to be used for planning control purposes. Future redevelopment proposals on Bank Street, if they were to be approved, would need to incorporate these elements.
31. Thus in my judgment, the factual matrix, so far from supporting the claimant's contentions, overwhelmingly points to a conclusion that the resolution was not made pursuant to section 73.

Estoppel

32. The estoppel on which Mr Hoggett relies is said to arise from Mr McCreesh's letter of 9 January 1997 and the subsequent conduct of the parties on the basis of what it said. There can be no doubt, in view of the question to which Mr McCreesh was responding, that he was saying in terms that an improvement line had been prescribed for the purposes of section 73 by the resolution of 1989. Mr Hoggett submits that, on the facts, this must be understood to be a reference to the 1995 resolution, which was the only one capable of constituting a prescription for the purposes of section 73. For the ingredients of estoppel by convention he refers to Chitty on Contracts 28th Edition paras 3.101-3.103 and to London Borough of Hillingdon v ARC Ltd (16 June 2000, unreported). He says that the estoppel here operates, in the event of the resolution is ambiguous on its face, so as to present the council from denying that the resolution prescribed an improvement line under section 73. It thus only arises if the resolution is ambiguous, and I have concluded that it is not. I nevertheless deal with Mr Hoggett's contention for completeness.
33. Mr Hoggett puts the matter in the way he does in order to avoid two principles on which Mr Sauvain relies: firstly that estoppel can only be used as a shield, and secondly that it cannot be used to make what would otherwise be ultra vires an authority intra vires. On the second principle Mr Sauvain refers to Minister of Agriculture v Matthews [1949] 2 All ER 724 at 729 (quoting from Minister of Agriculture v Hunkin (1948, unreported), and Rhyl Urban District Council v Rhyl Amusements Ltd [1959] 1 All ER 257 at 266. Mr Hoggett says that this second principle can more properly be stated to be that estoppel cannot be used to confer a power that an authority does not have. In the present case, he says, the Council clearly had power on the facts to prescribe an improvement line and the only question is whether in fact they did.
34. Despite its subtlety Mr Hoggett's submission on estoppel does not achieve its purpose, in my judgment. However the point is put, the reality is that it is being used to found a claim to compensation. Remove the alleged estoppel and no claim can be established. The Council only has power to pay compensation under section 73(9) if an improvement line has been prescribed under subsection (1). It cannot confer on itself the power to pay compensation merely by its officers accepting or asserting that an improvement line has been so prescribed and conducting negotiations with a claimant on this basis. If it could do so, it would remove the need for it to form the view that it was necessary or desirable to widen the street and that it was expedient to use the power conferred on it by section 73; and it would not need to observe any of the formal procedural requirements of Schedule 9. The power to pay compensation cannot be created by an estoppel.
35. I would add that, in any event, the facts do not in my judgment found the estoppel for which Mr Hoggett contends. The reference in the correspondence is to the 1989 resolution, and there is no evidence that Mr Barker was at the material time aware of the 1995 resolution. Thus there was never a common understanding on the effect of the 1995 resolution. Moreover an estoppel by convention only operates to prevent a party denying the convention where it would be unconscionable for him to do so, and the history of the matter does not in my view suggest that there would be any unconscionability in this respect. Mr Barker has been aware of the proposed widening line from at least the time when he agreed to incorporate it as part of the 1989 scheme of redevelopment, and he has accepted it as appropriate in the event of redevelopment taking place. His concern has not been the restrictions that an improvement line under section 73 would place upon the owner or occupier of the land, but the fact that the prospect of a road widening scheme being carried out might deter a potential lessee. I agree with Mr Sauvain that in these circumstances the claimant has suffered no detriment from being misinformed by the letter of 9 January 1997.
36. The preliminary issue is therefore determined in the Council's favour. No improvement line was prescribed under section 73 by the 1995 resolution, and the claimant has no entitlement to compensation under the section. This determination accordingly disposes of the proceedings, and the claim is dismissed. It will take effect as a decision when the question of costs is decided, and at that point, but not before, the provisions relating to the right of appeal in section 3(4) of the Lands Tribunal Act 1949 and Part 52 of the Civil Procedure Rules will come into operation. The parties are invited to make submissions as to the costs of this reference, and a letter accompanying this decision sets out the procedure for submissions in writing.

Dated:

George Bartlett QC, President