England and Wales Lands Tribunal

[2000] EWLands LCA_92_1999 (10 January 2000)

LCA/92/1999

LANDS TRIBUNAL ACT 1949

COMPENSATION – claim under Part 1 of Land Compensation Act 1973 – residential dwelling- injurious affection- effects of noise, vibration, smell, fumes and the discharge on to the land of liquid substances, following construction of a new road bridge adjacent to the property. Compensation awarded £600.

IN THE MATTER of a NOTICE OF REFERENCE

BETWEEN GORDON CHARLES CLARKE Claimant

and

THE HIGHWAYS AGENCY Respondent

Re: St. Jude's, Silver Street, Besthorpe, Norfolk

Tribunal Member: P.R. Francis FRICS

Sitting at: Lowestoft County Court, 28 Gordon Road, Lowestoft, Suffolk

on

15 December 1999

The following cases are referred to in this decision:

Trustees of A L Alston Childrens' Settlement and Another v Highways Agency L.T. LCA/81-2/1997

Alison C Willis of Nicholas Daykin & Co, solicitors of Attleborough for the claimant.

Nicholas Marston of Nicholsons, solicitors of Lowestoft for the respondent.


 


DECISION

1. This is a reference, heard under the Simplified Procedure (rule 28, Lands Tribunal Rules 1996), to determine the compensation payable by the Highways Agency ("the compensating Authority") under Part 1 of the Land Compensation Act 1973 ("the 1973 Act") in respect of the depreciation in value to St. Judes, Silver Street, Besthorpe, Norfolk ("the subject property"), following the construction of a new overbridge to the A.11 trunk road ("the works").
2. Ms Alison Willis appeared for the claimant and called:

(1) Mr. Gordon Charles Clarke ("the claimant")

(2) Mr. Peter Hall FRICS, FAAV., a partner in W.S.Hall & Partners, Chartered Surveyors of Wymondham.

Mr. Nicholas Marston appeared for the compensating Authority and called Mr. John Featherby Dip.Est.Man. ARICS, of the Valuation Office in Norwich.

Facts.

3. The parties helpfully produced a schedule of agreed facts, and from this, the evidence given at the hearing and my inspection of the subject property and comparables, I find the following facts:

1. The scheme under which the claim is made was the A.11 Trunk Road (Besthorpe to Wymondham Improvement) Compulsory Purchase Order (E No.13) 1991. The claim falls within Part 1 of the Land Compensation Act 1973, and as none of the claimant's land was acquired, is restricted to compensation for depreciation to the value of the property caused by noise, vibration and discharge onto the land of surface water resulting from the physical use of the works. The works, the use of which is alleged to have affected the property, were the stopping off to the former access onto the A.11 Trunk Road, and the building of a new bridge over the A.11 linking Silver Street with the continuation of the lane to the south of the dual-carriageway.

2. The relevant date for Section 1(9) of the 1973 Act was 22 March 1996, and for Section 4(1) of the 1973 Act was 22 March 1997 (the Valuation Date). The claim was made on 20 August 1997.

3. The subject property comprises a detached freehold bungalow of traditional brick construction under a pantiled roof. It is believed to have been built in the late 1930's or early 1950's and has a rear kitchen extension of brick under a flat roof together with a conservatory. The accommodation comprises porch, entrance hall, kitchen/dining room (also used as a living room), two bedrooms to the front and a further room (currently used for storage) at the rear. There is a bathroom with bath, wash basin and WC and the property has full oil-fired radiator central heating. The gross external area is agreed at 77.87 sq.m. (838 sq.ft.) with the conservatory extending to 6.29 sq.m. (68 sq.ft.).

4. The plot has a site area of 2,640 sq.m. (0.65 acres), and contains a concrete block and asbestos roofed store of 13.54 sq.m. (146 sq.ft.), an open fronted workshop with enclosed garage of light steel frame construction with pre-formed metal clad walls and roof and a concrete floor. It has a maximum height of 3.05 m. (10 feet), a workshop area of 59.47 sq.m. (640 sq.ft.), with the garage being 28.32 sq.m. (305 sq.ft.). There is a paddock area to the east side of the plot, containing a modern timber framed stable block of 33.03 sq.m. (355 sq.ft.). A large area of the plot is used for the storage, dismantling and repair of motor vehicles. The southern boundary of the plot is within 56 metres of the A.11 Trunk Road, with the southern wall of the bungalow being 84 metres away.

5. The property is located on the north-eastern edge of Besthorpe, a small community of ribbon type development to the north of Attleborough, the nearest sizeable village. It has a frontage to Silver Street that, prior to the scheme gave access from the old A.11 London Road to the A.11 Attleborough by-pass (dual-carriageway) which was opened in May 1985. Since the scheme was completed, Silver Street provides alternative access to Besthorpe, via the new bridge, and to a Turkey Farm and a transport depot lying to the south of the A.11. Access to the A.11 Trunk Road is now from an access point about ½ mile to the north-east, via the "old" A.11 London Road, or from south-west of Attleborough.

6. The following open market sales comparables were referred to:

Rosecroft, Chequers Lane, Saham Toney, Near Watton, Norfolk. Similar size to subject, but more rural. Site area approximately 0.5 acre. Sold August 1996 for £78,500.

Bannatyne, Greenways Lane, Carleton Rode, Norfolk. Modern 3 bedroom bungalow in semi-rural setting on site only 25 per cent as large as subject. Sold February 1997 for £87,950.

Flaxley, The Street, Bunwell, Norfolk. Modern detached 4 bedroom bungalow on site of 0.24 acres. Sold July 1997 for £95,000

Hill Crescent, Hill Road, Besthorpe, Norfolk. External floor area 83.7 sq.m. (901 sq.ft.). Site area 0.21 acres. Sold March 1995 for £43,500.

Issues

4. The factors alleged to have a depreciating effect on the subject property were:

1. Increased noise from the A.11 Trunk Road.

2. Amplified noise from vehicles on the A.11 emerging from under the new bridge.

3. Noise and vibration from heavy goods vehicles using the new bridge, especially at night.

4. A large puddle and partial flooding of the entrance of the subject property.

The value of the property as at the valuation date was not agreed, and the parties were also unable to agree the appropriate percentage compensation. There was also an issue, raised by the respondent, to the effect that planning permission was required for the outbuildings, and had not been obtained, and that planning permission was also required for the alleged use of the site as a scrap-yard and car dismantling business.

Claimant's evidence

5. Mr. Clarke said he purchased the subject property in 1989 for £78,300 at which time it was devoid of outbuildings, and needed considerable modernisation works to the interior. He had bought it particularly for the land, as this gave him the opportunity to carry out his retirement hobby of tinkering with cars. He had subsequently carried out modernisation and improvements to the property to a value of about £22,000 (although he had undertaken much of the work himself), including the installation of central heating, re-wiring and provision of new kitchen fittings in the bungalow. He had also erected the outbuildings following discussions with the local planning office, who had, he said, indicated he was within his rights to erect the buildings, without formal planning permission, providing they did not exceed a certain height.
6. He said that the proliferation of old cars, car parts and other materials which took up a large part of the land were purely related to his hobby of repairing and re-building old vehicles. For instance, he said there were at least three Morris Minors in various states of dismantling, the parts from which he was using to keep his wife's old Morris Minor going. He was not, he insisted, carrying out a business from the property, and only sold three or four cars a year to keep things turning over. Mr. Clarke said that when vehicles had been completely cannibalised, they would be taken to a scrap-yard. In respect of any detrimental effect the cars and parts might have on the value of the property, in putting off prospective purchasers, he said that it would only take a week to ten days to clear the site, and costs would be minimal as he would do it himself.
7. Mr. Clarke said that prior to the construction of the new bridge, Silver Street had been extremely quiet and was used by hardly any traffic. This was because, for any traffic wishing to go in a south-westerly (London) direction on the A.11 Trunk Road, crossing the dual-carriageway was so dangerous that people from the village, and from the nearby Wymondham College, would prefer to go through Attleborough and get on there. Likewise, any traffic coming from Norwich direction would have to cross the central reservation, and it would be safer for them to go a little further and come off at Attleborough. Thus, he said, the majority of traffic using Silver Street was vehicles from the immediate vicinity and Wymondham College, heading towards Norwich, and those coming from the London direction. He stressed that numbers would be limited due to the fact there was another exit at Attleborough, but accepted that the next access point to the A.11 in the Norwich direction was at Morley Two Pits, about three miles away. Mr. Clarke also said there were hardly any heavy goods vehicles ("HGVs"), as those from the Watling's Transport Depot on the other side of the A.11 would have no reason to come past his property prior to the construction of the bridge.
8. The hedges on the south and west boundaries of St. Jude's were, Mr. Clarke said, being grown up to shield the property from the noise which had increased since the dualling was completed to the north east. He said there was, since the bridge had been built, a distinct "whooshing" noise as lorries and coaches emerged from under the bridge at high speed. The hedges were also creating a shield from the traffic using the bridge, the greatest problem here being the HGVs from Watling's Transport and the Turkey Farm which caused considerable vibration and noise as they changed down gear and braked for the junction with London Road. Likewise, the noise from lorries accelerating and changing gear as they negotiate the steep incline to the bridge approach. He and his wife were being kept awake at night by the lorries, and on 17 May 1999, at the suggestion of Mr. Hall, he had deliberately stayed awake, had counted six during the early hours.
9. As to the flooding, which Mr. Clarke said had become more of a problem since the scheme had been completed, he had been in touch with a Mr. Goldsmith at Norfolk County Council, and during 1998 steps had been taken to try to resolve the situation. However, it was as bad as ever, and he produced photographs taken during heavy rain on 11 December 1999 which, he said, proved the point.
10. In cross-examination, Mr. Clarke said that prior to the building of the bridge, which had a steep incline thus forcing vehicle engines to work hard, there had been a gentle slope downwards from the entrance of his property to the junction with the A.11 Trunk Road. Also there were very few HGVs pre-scheme, whereas now they were going all the time. The main problem was the HGVs operating during the night, the noise and vibration from these keeping him and his wife awake. However, he said the noise had not prompted him to consider sleeping in a back room, rather than one on the front of the bungalow that faced the access to the bridge.
11. Mr. Clarke accepted that he paid a "full" price for the property in 1989, but it was because there were no others at the time that offered the convenience of location, and the size of plot that he wanted.
12. Mr. Hall is a chartered surveyor who qualified in 1970 and is now the sole principal of W.S. Hall & Partners of Wymondham. He had not previously dealt with Part 1 claims, this having formerly been the province of his father, who prior to his recent retirement, was the senior partner of the firm. Whilst accepting that the purchase price paid by Mr. Clarke was on the high side, he said many of the improvements, including the erection of the outbuildings and installation of central heating would add to the value and marketability. It was, he said, an unusual property particularly in respect of the amount of land going with it, and comparables were difficult to find.
13. He said that he had made enquiries of the local planning office and understood that, so long as Mr. Clarke was not running a business from the property, permission would not have ben required for the buildings that had been erected.
14. As to the comparables, he referred to the compensating Authority's experts report, and the settlements that had been achieved in the vicinity, relating to the scheme. Those properties on the London Road, which prior to the relevant scheme had been stopped off at its former junction with the A.11 Trunk Road, and was thus a cul-de-sac, compared unfavourably with the subject property. This was because, as a cul-de-sac, it was squalid and was used for the storage of sugar beet and agricultural waste. Referring to Mr. Featherby's only comparable resulting from an open market transaction, Hillcrest, Hill Road, Besthorpe, Mr. Hall said this bore little similarity to the subject property as it occupied a much smaller, wedge shaped site. In cross-examination he conceded that it was broadly similar in terms of age, style and appearance (although it has now been substantially extended), and is quieter, being further from the A.11. However, he said that the shape of its plot was a devaluing factor.
15. In respect of his own comparables, he said Rosecroft at Saham Toney was more rural and in a lower value area about 14 miles away from the subject property and twice as far from Norwich. It was in better condition, and occupied a slightly smaller site without outbuildings. As with his other two comparables, he accepted that they were all well away from the A.11 and would not therefore suffer the noise that affected the subject property. He acknowledged that both Bannatyne at Carleton Rode and Flaxley at Bunwell were not ideal comparables, as they were more modern, in better condition and were not affected by the A.11.
16. In cross-examination, Mr. Hall said that property prices, according to the Halifax Indices had moved upwards by only about 4 per cent between 1995 and 1997. He said that prices had fallen significantly following Mr. Clarke's purchase of the subject property, but by 1997 had almost fully recovered. Thus, he thought that, with the benefit of the improvements that had been undertaken, and in the light of the comparable evidence, the subject property would have had a value in excess of £90,000 at the valuation date, although in an attempt to reach a settlement, he had valued it at £85,000.
17. Mr. Hall said that the construction of the bridge had resulted in HGVs from Watling's Transport, Coral Plant (a plant hire company) and High View Turkeys now using Silver Street whereas previously they had direct access to the A.11 trunk Road, and would have had no reason to pass the subject property. The noise from these lorries was the principal aspect of the claim, he said, although the other matters referred to by Mr. Clarke (additional noise from the A.11) were all contributory to his assessment that the value had been depreciated by 10 per cent. In addition, his client was claiming £500 for the flooding. The increased noise on the main A.11 trunk road was caused by the greater traffic speeds resulting from the fact that the dual carriageway was now continued beyond the point 1 kilometre to the north-east where it had previously ended. Furthermore, he said, the carriageway was now all concrete whereas previously the non dual carriageway was tarmac, and thus noisier, and the new section was also in a cutting that directly faced the property causing a funnelling effect to the sound. Mr. Hall also said that the whooshing noise occurring when HGVs emerge from under the bridge is much more intrusive than the previous constant drone, and noticeably affects the pleasure of sitting in the garden.
18. In justifying the 10 per cent claim, when it was acknowledged the settlements which would be referred to in the compensating Authority's evidence were at figures ranging from less than 1 per cent to 4 per cent, Mr. Hall referred to the Lands Tribunal decision in Trustees of A L Alston Childrens' Settlement and Another v Highways Agency L.T. LCA/81-2/1997. In that case, he said that the compensation in respect of 1&2 Park Villas had been settled at 7.5 per cent of the value, and Silfield Lodge Farm House at 5 per cent. He suggested that the District Valuer's refusal to negotiate prior to the Alston hearing was on the pretext that a settlement on the subject property might affect the outcome.
19. Mr. Hall also referred to the Banhams Barn settlement, details of which, he said, had been witheld by the Valuation Office despite repeated requests. This was purely a Part 1 claim, and had resulted in a settlement representing 14 per cent of the agreed value of £200,000. Details were handed to the Tribunal. Finally, he made the point that the settlements that would be referred to in the compensating Authority's evidence were not necessarily representative of true open market values, due to the fact that owners would be likely to "take a view" rather than risk the costs of going to the Lands Tribunal.

Respondent's evidence.

20. Mr. Featherby is a chartered surveyor who qualified in 1973, has been a senior valuer with the Norwich Valuation Office since 1990, and has dealt with 129 Part 1 claims under the Act in respect of the scheme. He referred to his statement and said that, as far as the planning situation was concerned, he was of the view that Mr. Clarke was carrying out a business from the subject property, as an auto-dismantler, and that on one of his visits he had counted 35 vehicles in various stages of disrepair. Following enquiries to Breckland Council, which had confirmed that no planning consents for the business use or the buildings had been sought or obtained, he was of the opinion that as at 22 March 1996, the date upon which the interest in the property was fixed, the claimant was carrying on a business and had erected buildings for which consent had not been obtained, but for which was required. He said that the Council would be investigating the situation following this Tribunal's decision on the claim, but said the potential for enforcement action would have an effect on the value of the property at the relevant date. As to all the scrap and materials that were on the site, he said that even if they were cleared, there could well be an element of contamination remaining.
21. Mr. Featherby referred to the traffic survey that he had personally undertaken on Thursday 4 November 1999 for a two-hour period between 8am and 10am. He had counted eight HGVs, thirteen vans and light goods vehicles and thirty-two cars using Silver Street, whereas there had been twenty-three HGVs, eight buses, thirty-eight vans and light goods vehicles and two hundred and twenty cars using the old London road (which now gives access to the A.11 trunk Road). These totals of 53 and 289 proved the point, he said, that Silver Street was now little used and traffic gaining access to the main road now used the old London Road. This also had implications as far as the settlements he had agreed on the properties fronting the London Road were concerned, in that there was now a significant amount of traffic using it, whereas pre-scheme it had been a cul-de-sac. Furthermore, he said, the Watling's Transport lorries also now pass the London Road properties. The properties fronting London Road upon which settlements had been agreed (with Percy Howes, Chartered Surveyors of Norwich for the owners) were Homelands, Pear Tree Cottage, Advent Cottage and Blossom House. The figures were 2 per cent of the value for the first three, and 3 per cent for Blossom house, as this was much nearer the road.
22. As to the subject property itself, Mr. Featherby said it was in poor overall condition, needed redecoration and further modernisation and that, together with all the scrap vehicles would have a detrimental effect on value. Also, it was very close to the A.11 Trunk Road, which had been a dual carriageway since 1985, was therefore badly affected by traffic noise prior to the scheme and thus could not be compared directly with the comparables that Mr. Hall had used. The only additional noise which the claimant might suffer, he said, over and above that which obtained pre-scheme was from the HGVs now using Silver Street, but he said that Silver Street would have been very much busier pre-scheme generally, so any increase would be minimal. However, in cross-examination he accepted that there were no traffic census figures to prove the road used to be busier. Mr. Featherby had made enquiries of Watling's Transport regarding Mr. Clarke's claim that the HGVs were using the road all through the night, and it had been confirmed that approximately eight to ten lorries would use the road during the hours of darkness, but he did not agree with the claimant that the noise would have a significant effect on value.
23. The problems with the surface water were not, in Mr. Featherby's opinion, caused by the works, and he referred to the fact that Mr. Clarke had said ponding at the entrance of his drive occurred pre-scheme. He pointed out where gullies had been installed to take surface water from the new road, thus preventing it reaching the subject property. In his view the value was not affected by this aspect.
24. In arriving at his estimate of value in the sum of £60,000 at the valuation date, Mr. Featherby said he had relied upon the settlements referred to in his statement together with the transaction involving Hill Crescent. Hill Crescent was a similar style and size bungalow, in need of modernisation but on a much smaller plot. It was, however, further away from the A.11, so was less affected by noise, and had a pleasant aspect to the front over open fields. He accepted that the sale was two years before the valuation date for the subject property, but even applying an uplift based on the Halifax Indices (at 4 per cent for the period) this still only gave a value of £45,250.
25. The eight settlements Mr. Featherby had negotiated with Lloyd Williams, Chartered Surveyors on properties in Eleven Mile Lane and Suton Street, Suton with values in the range £50,000 to £75,000 offered the best evidence of value when comparing to the reference property, he said. The lowest, Westfield, Eleven Mile Lane, was a 1960's built two-bedroom bungalow of 68.7 sq.m. (740 sq.ft.) on a 0.22 acre plot. The highest, Ashcroft, was a detached 1930's three-bedroom bungalow of 90.7 sq.m. (976sq.ft.) on a plot of 0.44 acres. It had full gas central heating and, Mr. Featherby said, was in much better presented order. These properties were all much further away from the A.11 and in a more rural location.
26. In assessing the appropriate compensation at £600, or 1 per cent of the open market value, he had taken into account the percentages agreed on the London Road properties, and, in accordance with the provisions of Section 6 (1)(a) of the Act, had also considered any benefits which might have accrued to the property as a result of the scheme. In his opinion, the reduction in traffic now using Silver Street was a benefit, therefore, with the only possible extra noise being from the HGVs and there being no discernible extra effect from dust, fumes, smell or artificial lighting, any effect on value would be extremely marginal, and certainly less than was the case with the London Road settlements.
27. Referring the Alston case, Mr. Featherby confirmed that the properties referred to by Mr. Hall (1&2 Park Villas and Silfield Lodge Farm House) had not been purely Part 1 claims, and reflected an element of severance caused by the construction of a new dual carriageway through the estate, where no road had previously existed. He said that settlements had since been achieved on 3&4 Park Villas at 1.5 per cent and 1.75 per cent of value respectively, on Part 1 claims alone. In cross–examination, he said that the allegation he had refused to negotiate pending the outcome of the Alston case was not strictly true, although he had suggested to the claimant that the matter be held until after the decision. However, he said that at that time, Mr. Clarke had also been contemplating a claim against the developer who carried out the bridge works.
28. Finally, in respect of the Banhams Barn settlement, Mr. Featherby said this was in no way comparable, as it was a large, high quality barn conversion in 6.6 acres and although no land was taken, it was very seriously affected by the construction of the new dual carriageway, a bridge and junction forming part of the scheme.

Decision.

29. I inspected the subject property on 14 December prior to the hearing, and the comparables on the afternoon of 15 December following the hearing, and deal first with the four factors forming the basis of the claim.
30. The claimant's case was that traffic noise from the main A.11 Trunk Road had heightened since the scheme was completed, due amongst other things to increased vehicle speeds. As I indicated to the parties at the end of the hearing, the fact that the continuation of the dual carriageway is so far away from the subject property leads me to conclude that no discernible increase in noise would be likely. No evidence was produced to substantiate this element of the claim, such as traffic flow analyses or measurements of vehicle speeds. Even if there had been an increase, for the reasons given, it would be so negligible as to be incapable of translating into a factor causing depreciation in the value of the property which, at the relevant date, was already seriously affected by road noise.
31. I have no doubt that, over the years, the noise and disturbance caused by the constant drone of traffic has increased not only to the subject property, but to any property that is located anywhere near a major road. This is due to the general increase in traffic, year on year, and is a factor of the times.
32. During my inspection of the subject property, I stood in the garden on the south side of the bungalow to listen to the traffic on the main road, which lies in a shallow cutting meaning only the tops of high vehicles can be seen. The "whooshing" effect is discernible as east going vehicles pass under the bridge due, in my judgment, to the fact that the embankment carrying Silver Street up to the bridge actually acts as a barrier to the sound of traffic approaching from the west. Thus, as vehicles emerge from under the bridge, there is a more sudden noise as the sound is reflected off the concrete bridge piers. In my view, this marginal, temporary increase in noise resulting from the construction of the bridge is more than outweighed by the shielding effects of the embankment which, under the provisions of Section 6 (1)(a) of the Act could be construed as a benefit. Therefore, I agree with Mr. Featherby that the only increase in noise sufficient to warrant consideration for a claim for compensation might be from the HGVs now using Silver Street, and not from either of these first two points.
33. Mr. Clarke said there is now more traffic using Silver Street than prior to the scheme, and previously there had been few, if any, lorries. Mr. Featherby said that there was less. Apart from Mr. Featherby's two-hour traffic census on 4 November, no evidence was adduced to substantiate either claim. However, it appears from the evidence that the only real point at issue is the disturbance caused by HGVs using the bridge at all hours of the night. Whilst I was at the property, some three large lorries passed the property on Silver Street and crossed the bridge. I agree that due to the steepness of the slope, an HGV's engine will be working hard on the incline, especially if it is laden, and the sounds of changing gear and air-brakes will be a factor on vehicles coming off the bridge. The letter from Watling's Transport confirms that eight to ten HGVs use the bridge between the hours of 10pm and 7am, with a similar number during the day.
34. There was argument that even prior to the scheme there was an incline from the level of the junction of Silver Street with the A.11 to the subject property, and that therefore lorries would still be noisy. However, there is no doubt that the incline to the new bridge is very much steeper than would have been the case pre-scheme, and I accept the evidence from the claimant to the effect the noise overnight is now intrusive.
35. This leaves the subject of the ponding to the entrance of the subject property. It was fortunate that on the weekend before my visit there had been a period of heavy and prolonged rainfall, and the claimant was able to produce Polaroid photographs showing the extent of the problem. It was apparent from the evidence that the County Council was aware of the problem, and steps had been taken in the past to rectify it, but to no avail. I accept the comments by Mr. Featherby, and the letter produced from Mr. Goldsmith, that the Council had no record of any contact from Mr. Clarke since before the end of 1998, and it was perfectly reasonable therefore, for them to have assumed the works that were satisfactory. Nevertheless, I do not accept Mr. Featherby's contention that the works that were carried out were sufficient to resolve the problem.
36. The old part of Silver Street that fronts the property, and originally gave access to the A.11 has now been stopped off close to the south-western corner of the plot. It still belongs to the County Council as an adopted highway and the Council is therefore bound to maintain it. There is a significant slope between the entrance of the driveway to the property and the new road which, where it passes this point (on its way up to the bridge), is at a higher level than the old road was. Thus, there is a large area between the new road itself and the driveway entrance (including part of the grass bank at the base of the embankment) where rainwater is now channelled towards the drive with the inevitable consequence that the area will flood. I explained to the parties at the hearing that, as with the rest of the claim, I can only decide whether or not any particular aspect has served to devalue the property. The problem is obviously only sporadic, and is something which is of so little consequence in the overall scheme of things as to make it impossible to quantify what, if any, marginal effect on the value it might have. Whilst this Tribunal's jurisdiction does not extend to forcing the Council to take action on this or any other point, I indicated at the site visit that I thought the provision of a new gulley and grid at the point where the old road meets the entrance of the drive would serve to resolve the problem, and suggested that action in that area might be an appropriate resolution.
37. It will be seen from the above that I am of the opinion that the only one of the four factors outlined by the claimant that could have affected the value is the use of Silver Street and the new bridge, on a twenty-four hour basis, by HGVs – especially overnight. Mr. Featherby contends that that is the only valid aspect of the claim, and has opted for a 1 per cent reduction from his valuation. In deciding on this figure, Mr. Featherby had taken into account the benefit he perceived there to be in the reduction in traffic using Silver Street. Although not submitted in evidence, in addition to the shielding effect of the bridge that I have already mentioned, I perceive the fact that the road is now somewhat further away than the old Silver Street was to also be a marginal benefit. In the light of these facts and of the settlements in the vicinity, especially those relating to the properties just round the corner in London Road, where in my judgment the properties have been much more seriously affected, I am bound to concur with Mr. Featherby's view as to the appropriate reduction. I accept that the Alston settlements are not comparable, and the Banhams Barn settlement was for a property very much worse affected by the scheme.
38. I now turn briefly, before dealing specifically with the value of the property, to the respondent's submissions regarding the planning situation, and the comments to the effect that the claimant was carrying on a business on the site. The claimant denied that he was, and no evidence was adduced on the matter other than Mr. Featherby's evidence of what he had seen on site. From my inspection it appeared to me that the amount of activity was greater than that of a retirement hobby, but there was insufficient evidence for me to form a view that there had been a breach of planning control. The Council has not considered whether to take enforcement action, either in respect of the buildings or the car repairing use.
39. In my judgment a prospective purchaser viewing the site and making enquiries of the Council, would note that the new buildings did not have planning permission and that, if the site had not been cleared, the car repairing use was extensive. He would take the view that there must be some risk that enforcement action would be taken. Assuming, as Mr. Clarke has intimated, it had been cleared of vehicles and scrap materials, the lack of planning permission for the buildings would still be a cause for concern, and I agree with Mr. Featherby that he would on this account be likely to reduce his bid to a small extent.
40. As to valuation, I am greatly assisted by the settlements produced by Mr. Featherby relating to the eight properties at Suton. However, I am mindful of the comments in Percy Howes' letter to the Valuation Office in respect of the London Road settlements which stated that the initial claims for compensation were on the basis of much higher figures, one of their clients was dissatisfied with the figure agreed, and all did not feel able to pursue the matter to the Lands Tribunal for fear of incurring costs should they not succeed. Whilst no such caveat was included in the letter from Lloyd Williams, who dealt with the Suton claims, I do consider the best and most reliable evidence will normally come from open market transactions. It is an argument frequently used in references and appeals to the Lands Tribunal that agreed settlements will often reflect the owners reluctance to risk the attendant costs of a Lands Tribunal hearing. Nevertheless, the fact that there were eight properties, all of similar type, and in a relatively comparable location (only about 2 miles from the subject property) provides a general feel for values at the relevant date.
41. Having inspected all the Suton properties externally, I formed the view that Lyndhurst and Homeside, Eleven Mile Ride, were the nearest in terms of comparability to the reference property. Lyndhurst is a detached two bedroom bungalow constructed c. 1940 with solid fuel central heating, a gross external area of 82.5 sq.m. (888sq.ft.) (about 5 per cent larger than the subject property), and a site area of 0.5 acre although it is a somewhat narrow plot. The settlement was at an agreed valuation of £60,000. Homeside is a detached two bedroom bungalow, constructed in the mid 1930's with full central heating, an external area of 73.3 sq.m. (789 sq.ft.) (about 5 per cent smaller than the subject property), and a site area of 0.51 acres. It appeared to be somewhat better maintained and had tidy gardens that certainly did not suffer from the detritus at St. Judes. The settlement was at an agreed valuation of £65,000 at the relevant date. Both properties were in eminently superior locations, being much further from the A.11 and thus less affected by noise. They had a rural aspect over open fields, but were further away from local facilities.
42. Mr. Featherby's open market comparable, Hill Crescent, Hill Road, Besthorpe, was much closer to the subject and similar in style. However it was on a very small plot and the price achieved (43,500 in 1995 – adjusted for inflation to £45,250 to the relevant date) appears out of line with the settlements and other comparables produced. Mr. Featherby was unable to give a reason for this, but in response to a question from me regarding two other properties that he said had been sold in Hill Road at around the relevant date, but where the owners had refused to give permission for the figures to be disclosed, he did say that those prices were more in line with the Suton settlements.
43. Mr. Hall said that only one of his three comparables was really appropriate (Rosecroft, Chequers Lane, Saham Toney). This had sold in August 1996 for £78,500 and was described as being in a less valuable area. It is evident from the sales particulars included with Mr. Hall's report that Rosecroft was a superior property occupying a large semi-rural plot adjoining fields. It had been extensively modernised to include replacement double-glazed windows, gas fired central heating, a new kitchen and bathroom and was within 1 mile of local shopping and other facilities in Watton. It was also not near the A.11, and did not therefore suffer from traffic noise to the same extent as at the subject property.
44. Whereas the Suton properties were all broadly similar to the subject property, except that none of them had quite such large and conveniently shaped plots, they did not as I have said, suffer from the noise nuisance of being so close to the A.11. They were all smarter in appearance, and whilst I accept Mr. Clarkes statement that his site could be cleared relatively easily, I agree with Mr. Featherby's suggestion that some contamination could remain. Also, even if the site were cleared to facilitate a sale, it would take a long time for the areas previously occupied by the cars and other materials to be re-established as garden. Then there is the condition of the interior of St. Judes. Whilst I have not inspected any of the other comparables internally, I suspect none of them are in such poor decorative order, and in need of extensive further modernisation. One advantage, other than the size and layout of the plot, that the subject property does have over the Suton properties, is that is more conveniently situated for the nearby village facilities in Besthorpe, and for Attleborough.
45. Taking into consideration all the facts and evidence before me, I conclude that the figure attributed to the subject property by Mr. Featherby, at £60,000, fairly reflected the freehold value as at the valuation date of 22 March 1997. As I have said in paragraph 37 above, I also concur with his view that the appropriate diminution in value as a result of the scheme is 1 per cent.
46. I therefore determine that the respondent shall pay the claimant compensation in accordance with Part 1 of the Land Compensation Act 1973 in the sum of £600 (six hundred pounds) plus surveyor's fees under Ryde's scale.
47. This decision determines the substantive issues in this reference. In view of the provisions of Rule 28(11) of the Lands Tribunal Rules 1996, I make no award as to costs. Rights of appeal under section 3(4) of the Lands Tribunal Act 1949 and order 61 rule 1(1) of the Civil Procedure Rules will come into operation from the date of this decision.

DATED

(Signed) P.R. Francis FRICS