England and Wales Lands Tribunal

[2001] EWLands ACQ_32_1997 (31 August 2001)


 


ACQ/32/1997

LANDS TRIBUNAL ACT 1949

COMPENSATION – Compulsory purchase 1.7 hectares of land comprising a former railway line – value – use – assumed planning permission – ransom value - Land Compensation Act 1961 s.5 rules (2) and (3) – Compensation awarded £277,250

IN THE MATTER of A NOTICE OF REFERENCE

BETWEEN BRB (RESIDUARY) LIMITED Claimant

and

SOUTH YORKSHIRE PASSENGER TRANSPORT EXECUTIVE Respondent

Re: Land forming part of the former Smithywood Branch Line,

Tinsley, Sheffield, South Yorkshire

Tribunal Member: P R Francis FRICS

Sitting at: The Magistrates Courts, Castle Street, Sheffield, S3 8LU

on

6 and 7 June 2001

The following cases are referred to in this decision:

Stokes v Cambridge Corporation [1961] 13 P&CR 77

Batchelor v Kent County Council [1990] 1 EGLR 32

Zia Bhaloo of counsel, instructed by Vizard Oldham, solicitors of London WC1, for the claimant

Andrew Williamson, solicitor, of Walker Morris, solicitors of Leeds, for the acquiring authority

© CROWN COPYRIGHT 2001

DECISION

1. This was a reference by BRB (Residuary) Ltd (formerly British Railways Board) ("the claimant") to determine the compensation payable by South Yorkshire Passenger Transport Executive ("the acquiring authority") for the compulsory acquisition of four parcels of land in Sheffield, S.Yorks, in connection with the construction of the Sheffield 'Supertram' Light Rail Project ("the scheme"). Prior to the hearing, the parties reached agreement in relation to three of the areas, and this decision, therefore, relates solely to the remaining parcel of land forming part of the former Smithywood Branch Line at Tinsley, Sheffield ("the subject land").
2. Miss Zia Bhaloo of counsel appeared for the claimant and called Mrs Valerie Ann Hughes FRICS of Property Solutions Ltd who gave valuation evidence. Mr. Andrew Williamson, a partner with Walker Morris, solicitors of Leeds, appeared for the acquiring authority and called Mr. Martin James Hartley BSc FRICS IRRV of Lambert Smith Hampton, Consultant Surveyors of Sheffield who also gave evidence of value.

FACTS

3. The parties produced a statement of agreed facts from which, together with the evidence, and my inspection of the subject land on 7 June 2001, I find the following facts:

3.1 By an agreement dated 19 October 1989, the claimant and the acquiring authority agreed that the acquiring authority would not seek to acquire any of the claimant's land under the powers of the South Yorkshire Light Rail Transit Act 1989 ("the 1989 Act"), but the claimant would sell, and the acquiring authority would purchase, the lands [including the subject land] or the rights therein, by the said agreement.

3.2 Clause 4(7) of that agreement provided that unless otherwise agreed between the parties, the acquiring authority would, within 12 months from the passing of the 1989 Act, serve Notices to Treat upon the claimant in respect of all easements, rights, interests and estates in the land that was to be acquired, and the purchase would proceed as a compulsory acquisition under the terms of that Act.

3.3 Notice to Treat was served upon the claimant in respect of all four parcels of land (including the subject land) on 19 March 1991.

3.4 Possession of the subject land was taken by the acquiring authority on 5 August 1991 ("the relevant date"). It was agreed that this was the valuation date for the purpose of this determination.

3.5 Following failure to agree the terms of compensation for the subject land and the other three parcels, a Notice of Reference was submitted to the Lands Tribunal by the claimant on 18 March 1997.

3.6 The subject land comprised two areas of former railway track (referred to in this decision as the northern section and the southern section) linked by a bridge over the River Don. At the relevant date it was disused, and the railway track had been removed. The majority of the land was left as the former track bed, but there was a strip along the western boundary of the land to the north of the river, and the eastern side of the land to the south of the river which was overgrown with rough grass and scrub.

3.7 The total area of both parcels of land was agreed to be 1.7033 ha (4.2 acres), divided as to 1.2294 ha (3.03 acres) to the northern section (a long, narrow strip), and 0.4739 ha (1.17 acres) to the southern section (a small, triangular area). The area of the bridge was 0.0576 ha (0.14 acre) and that area was agreed to be excluded from the area calculations of the subject land. Direct access to the northern section of land from the public highway was towards its northern end from Alsing Road and a strip along the eastern side of that land was over-flown by the Tinsley Viaduct, a two-level flyover, which accommodated the M1 motorway on the upper level, and the A631(T) at lower level.

3.8 The area of land known as the Tinsley Triangle, and extending to 3.36 ha (8.3 acres) abutted the northern section of the subject land on part of its eastern boundary, and access to it could only be obtained from the subject land.

ISSUES

4. The sole issue for my determination is the open market value of the freehold interest in the subject land at the valuation date in accordance with the provisions of s.5 of the Land Compensation Act 1961 ("the 1961 Act").

CLAIMANT'S CASE

5. Miss Bhaloo said that the areas of dispute between the parties related entirely to valuation principles, and there were no points of law to be determined. However, she said that the parties disagreed as to the interpretation of s.5(3) of the 1961 Act relating to the special needs of a particular purchaser. Whilst it was agreed that the amendment to rule 3 that was brought in under section 70 and Schedule 15, para 1 to the Planning and Compensation Act 1991 on 25 September 1991 (which repealed the words "the special needs of a particular purchaser") was not relevant in this case as it had occurred after the relevant date for valuation purposes, the special needs of a particular purchaser were to be taken into account. This would become evident, she said, as the evidence was presented. The other relevant sections of the 1961 Act were s.5(2), and ss.14, 15 and 16.
6. The questions for the Lands Tribunal to consider were what planning permission could be assumed on the land at the relevant date, in terms of the draft Unitary Development Plan that had been published in February 1991 and was, therefore, the appropriate document to rely upon; the open market value upon that basis, and what additional value could be attributed to the fact that the land formed the key to providing access to an adjacent land-locked area known as the Tinsley Triangle.
7. Mrs Hughes is a chartered surveyor and a commercial property manager with Property Management Solutions Limited, an independent firm of consultants to the property and construction industry. She has 24 years experience of working within the railway industry and her involvement has included the management and disposal of surplus railway land. Based in Manchester, her area of responsibility comprises the whole of the north of England.
8. She produced a valuation report, and two supplementary reports in response to the acquiring authority's expert's reports. She said that in terms of planning and land use, the designations identified in the draft 1991 Unitary Development Plan for Sheffield ("UDP") had been assumed. This, together with its accompanying proposals map, showed the subject land to be designated as a Special Shopping Centre. In addition to retail shopping (A1) use, which, she said, would attract values of £123,500 per ha (£500,000 per acre), other uses that appeared to be acceptable were offices with public access (A2), food and drink outlets (A3), Business (B1), hotels (C1), leisure and recreation facilities and motor trade uses. B1 use would command land values in the region of £370,650 per ha (£150,000 per acre).
9. In the no-scheme world, Mrs Hughes said, the northern section of the subject land, together with the Tinsley Triangle to which it gave access, would have formed a natural extension to the massive Meadowhall regional shopping centre development. She believed that had it not been for the scheme, the developers of Meadowhall would have been interested in acquiring that land in connection with possible proposals for a food superstore. Both the claimant's northern section of land, which formed a long strip with access off Alsing Road, and the Tinsley Triangle, which belonged at the relevant time to the Department of Transport (now the Highways Agency), were eminently suitable for the extension of the car parking facilities in connection with this further development. The Tinsley Triangle was approximately 3.35 ha (8.3 acres), of which 0.93 ha (2.3 acres) were directly under the viaduct.
10. The southern section of the subject land, to which, at the relevant date, there was no independent access other than by the bridge that carried the old railway line, had been valued by Mrs Hughes at £24,710 per ha (£10,000) per acre. However, as Mr. Hartley had valued that area on the same use basis at £33,750 per ha (£13,660 per acre), she said she was, not surprisingly, prepared to agree that figure. This amounted, on the basis of the agreed area, to £15,994.
11. Mrs Hughes produced two valuations, one on the assumption that retail shopping values applied to the northern section of the subject land and the Tinsley Triangle, and the other on the basis of B1 business use values (which according to the draft UDP was an acceptable alternative). In both cases she had used the Stokes v Cambridge principle (Stokes v Cambridge Corporation [1961] 13 P&CR 77) in respect of the 3.35 ha (8.3 acres) that made up Tinsley Triangle. On the basis that the claimant's land was the key to its development, there being no other possible access, she had used a factor of 3, or a 'ransom' value to the claimant of one-third of the Triangle's development value.
12. Although she was unable to produce any comparable evidence to support her contentions, Mrs Hughes said that with retail values being 10 times industrial (B8) values of £123,550 per ha (£50,000 per acre), the 2.42 ha (6 acres) of Tinsley Triangle that were open land would be worth £3,000,000, of which £1 million could be attributed to the claimant's land under Stokes. The 0.93 ha (2.3 acres) under the viaduct she took at 50 per cent of the full retail value £617,750 per ha (£250,000 per acre) which gave a value to the claimant of (rounded) £200,000. The claimant's own northern section of land extended to 1.2294 ha (3.03 acres), and at £1,235,500 per ha (£500,000 per acre), this gave a value for that section of £1,520,000. Mrs Hughes attributed a value to the claimant for the ability to grant an improved access to the adjacent sewage works in the sum of £155,000. Finally, with the £11,700 for the amenity land to the south (as per her original valuation), these figures gave a total value for the claimant's land of £2,886,700, say £2,887,000.
13. On the alternative basis, assuming development potential for B1 uses at £370,650 per ha (£150,000 per acre) on the northern section of the subject land, and on the Tinsley Triangle, and using the same principles as in her first valuation, Mrs Hughes produced a value of £980,200. Each of the two alternative valuations needed to be increased, she said, to reflect the higher value now agreed on the southern section, by £4,387.50 - say £4,400.
14. In her first supplementary report, produced in response to Mr. Hartley's proof of evidence, Mrs Hughes said that the acquiring authority appeared to acknowledge that the subject land and the Tinsley Triangle contained development potential at the relevant date for B1, B8 (distribution), motor trade/showroom uses, hotel and/or leisure and fast food. Such development would be within 'the Meadowhall context' either as an extension to Meadowhall, or as a spin off from it.
15. It was accepted, and appeared to be agreed, that the 'double-dogleg' in Alsing Road where it entered the subject land did not provide suitable access in its then current form, and re-alignment would be required. This would involve the owners of Meadowhall who owned the land on either side of Alsing Road. Their land to the south of Alsing Road had a then current use as a coach park for the shopping centre, and their land to the north was an overflow coach park. Mrs Hughes said that whilst Mr. Hartley considered the inadequacy of the existing access to be a bar to development, as there was no reason for Meadowhall to co-operate, she thought a deal would be able to be done. Meadowhall was a likely purchaser of the subject land, it being believed by Mrs Hughes that Mr. Healey of Stadium Developments, the owners, wanted to construct a 70,000 to 80,000 sq.ft. foodstore on the overflow car park off Alsing Road. They would therefore need the additional parking that acquisition of the subject land and other areas would provide. Indeed, she said, Stadium had indicated in writing to the Shrewsbury Hospital Estate, who had a pre-emption clause over the land in the event that it was no longer used as a railway, that they may be interested in purchasing the land.
16. Mrs Hughes also thought that there were active highways proposals for the realignment of Alsing Road in any event, and she said she had looked at the planning potential for the subject land not just in isolation, as Mr. Hartley had, but as one of three parcels in a land assembly scenario. Mr. Hartley had acknowledged that the success of Meadowhall had the effect of increasing demand for land on the periphery, and that the upgrading of the M1 slip roads had improved access. In her view, the subject land (at least the northern section) provided the key to facilitating development of a much wider area, and that must be reflected in its value.
17. In her second supplemental report, responding to Mr. Hartley's rebuttals, Mrs Hughes said the fact the Department of Transport had subsequently decided not to sell the Tinsley Triangle land was irrelevant. The draft agreement relating to a proposed sale dated 6 April 1998 underlined the potential to combine landholdings in the area to assemble a development site in accordance with the rationale in the draft UDP. Whilst it was accepted that there would be some constraints to development immediately beneath the viaduct – for instance within 6 metres of the concrete supports, that did not preclude development and the design and layout of any scheme would take the limitations into account.
18. In summary, Mrs Hughes said it was the claimant's case that likely negotiations, in the no-scheme world, would have been based on a value for at least B1 development, with a possible clawback clause for higher value uses such as retail. The possibility of a clawback would be reflected in an element of hope value over and above the B1 value.
19. In cross-examination, Mrs Hughes agreed that the price negotiated between SYPTE (the acquiring authority) and Meadowhall Properties Limited for the Tinsley Triangle was not based upon retail values but, she said, reflected values for B.1 development. She had understood SYPTE to be the owners in 1998, but the sale by them to Meadowhall was, in fact, dependent upon SYPTE's purchase of the land from the Department of Transport proceeding. The transfer to Meadowhall would, therefore, have been a 'sell-on'. She stressed that it was reasonable, in her conclusion, to assume that the Tinsley Triangle land would have been available to be incorporated into a land assembly scheme involving three parties – the claimant, the owner of the Triangle and Meadowhall.
20. The best value to the claimant was as part of a wider scheme as it was accepted the long, thin nature of the subject land (northern section) on its own precluded development, and was only suitable for storage purposes at a value of only £49,420 per ha (£20,000 per acre). It was put to Mrs Hughes that even if the subject land did form a ransom strip into the Tinsley Triangle, Meadowhall had a ransom over the subject land in respect of the need to improve the Alsing Road access. With Meadowhall holding the cards, any additional value to the claimant, calculated on the Stokes principle, would be substantially reduced by the need for the claimant to pay Meadowhall for the access.
21. She said that was not necessarily the case, as Meadowhall had expressed an interest in buying the subject land, and so the value to it of the opportunity to move into the subject land, and the Tinsley Triangle, would be taken into account in any negotiations. It was impossible to put an exact value on the individual elements in a land assembly scenario and the eventual prices achieved would be the result of a 'horse-deal'. Even if Meadowhall had not been interested, Mrs Hughes said she thought they would have been prepared to negotiate regarding the access, but accepted that in that case, they would have been in a much stronger negotiating position. However, the evidence was that they were interested, and it was that fact that she had taken into account in her valuation.
22. The fact that nothing ever came of the proposals to construct further retail was, Mrs Hughes said, irrelevant as, at the relevant date, those proposals were extant and there were opportunities, according to the draft UDP, for such development.
23. In that regard, Mrs Hughes accepted that the draft UDP upon which she had relied was a consultation draft, and that it was only the first stage in a long process at the end of which the preliminary designation was not adopted. However, those were the documents she had been shown when visiting the planning authority for the purposes of the preparation of her report, and whilst it was accepted that not the whole of the area designated as a special shopping centre on the land use plan could be physically developed for that purpose, it was the planning designation that mattered in valuation terms.
24. Mrs Hughes acknowledged that it was necessary to read the Sheffield Development Corporation's Planning Framework and Land Use Plan that was published in October 1990 and was then current in terms of development control, alongside the draft UDP. That framework designated the Tinsley Triangle as open space, and the subject land as Tramway, amenity and open space, but Mrs Hughes said that these designations would not necessarily have been a constraint to development, and would have formed the basis for discussion, particularly in the light of the fact that, at the relevant date, the draft UDP had been published. The UDP, she said, was looking to the future, whereas the planning framework related to the position that had applied in the past.
25. In response to a letter from the Planning, Transportation and Highways Department of Sheffield City Council to the acquiring authority dated 13 February 2001, regarding planning policies in 1991 and produced in evidence by Mr. Hartley, Mrs Hughes said that despite 10 years having passed she could not disagree with the comment that, as a consultation document, the draft UDP would have been given "little weight in determining any planning application". Whilst accepting that the Council were concerned that any additional shopping at Meadowhall could have a detrimental effect on the City Centre, Mrs Hughes said a distinction should be drawn between food and non-food retail and in any event there were, as was evident from the second page of the letter referred to, many other acceptable uses for which the land could be considered.
26. As to the £155,000 that Mrs Hughes had said the value of the subject land was enhanced to reflect the possibility of granting an improved access to the sewage works, she accepted that this was an arbitrary figure and would have been a basis for negotiation, there being no evidence that an approach by the water authority had been made.
27. Mrs Hughes accepted that none of the comparables upon which she had relied in arriving at her figure of £370,650 (£150,000 per acre) for B.1 use showed sale prices as high as that, but that they set a 'tone' and it was for the Tribunal to decide what was the appropriate figure from the evidence. She accepted that there was no evidential basis for her conclusions as to retail value, nor in respect of any hope value for clawback that might be attributable over and above the B.1 value which, she re-iterated, should be the minimum applicable figure.
28. Regarding the existence of easements over the subject land, and in respect of the part of the Tinsley Triangle land which lay under the viaduct, for which maintenance easements would need to be reserved, it was accepted that these would have an effect on the value of all the land.

ACQUIRING AUTHORITY'S CASE

29. Mr Williamson firstly acknowledged that the unamended version of s.5 rule (3) of the 1961 Act was appropriate at the relevant date, and therefore the existence of the Meadowhall development could be taken into account. However the owners of Meadowhall should be ignored as a special purchaser of the Tinsley Triangle because, due to their controlling interest in the potential opening up of the otherwise inadequate access, the Triangle had no development value without their co-operation. Nevertheless, he said, the parties had agreed that, in the overall picture, not much turned on that fact.
30. Mr. Hartley is a chartered surveyor and a member of the Institute of Revenues, Rating and Valuation. He has 34 years experience of commercial and industrial property in Sheffield and the surrounding area. His firm, Lambert Smith Hampton, has acted for the acquiring authority in respect of the valuation and acquisition of land for the Sheffield Supertram project since 1988.
31. He produced his principal proof of evidence and two supplemental reports. In describing the subject land he referred to the right of pre-emption that had applied to a part of the land that had been acquired from the Shrewsbury Hospital Trustees, and said that upon advice received from the instructing solicitors, he had assumed that it was void, and that compensation, therefore, fell to be paid to the claimant.
32. At the date of entry, the subject land fell into two local authority areas – the area of the northern section lying to the north of Alsing Road being within the Rotherham Metropolitan Borough. The adjoining land to the west of the subject land and to the north of Alsing Road that formed the overspill coach park to Meadowhall, together with the part of the Tinsley Triangle that lay to the east of, and under the motorway, was also in Rotherham's area. As he had had to value the overspill coach park and main coach park in 1992, he had made enquiries of Rotherham's planning department. This had revealed that B.1 and motor trades uses would have received favourable consideration (on the overspill coach park), together with hotel, leisure and, although not deemed a suitable location in trading terms, fast food retail. The land in question, the subject land and the Tinsley Triangle were transferred to Sheffield in about 1994. Mr. Hartley said that although in the Sheffield Development Corporation Planning Framework, the part of the northern section of subject land to the south of the Alsing Road access that was already within its area was designated as a tramway, he had no reason to believe that in the no scheme world, similar uses to those favoured by Rotherham would not be permitted. He said the land not specifically allocated to the Supertram line lying to the east of the proposed track, together with the Tinsley Triangle were shown on the Planning Framework's Land Use Plan as 'landscape, structure and open space'.
33. As to the relationship between the planning framework and the draft UDP, Mr. Hartley said that whilst the former set the development strategy for the Lower Don Valley, it was not a statutory plan. It merely outlined the programme the Sheffield Development Corporation were to follow during its limited life, and had to be consistent with the longer term UDP. The consultation draft which, as Mrs Hughes had said, was published in February 1991, showed the subject land to be designated as part of a special shopping centre. However, whilst a range of uses (including B.1) were considered acceptable, there was a presumption against any increase in retail floorspace; indeed, any application for further A.1 development would be vigorously opposed.
34. There was therefore no dispute between the experts that the subject land fell into an area where B.1 office use could be anticipated (Mr. Hartley accepting that the draft UDP was not an inappropriate document to be considered), but where they did differ was on the physical suitability of the land for development. There was certainly no way that the northern section of the subject land could be developed in isolation, and even if that land did provide the key to the development of the Tinsley Triangle, the difficulties over access and the need for the owners of Meadowhall to co-operate, together with the constraints caused by the viaduct, made it an extremely unattractive proposition. Add to this the potential problems with easements, the possibility of objects falling from the viaduct carrying the motorway and A.631, together with the prospect of contamination in the land, and it became apparent that there were many other sites within the vicinity that would be much more attractive to the market.
35. In summary, Mr. Hartley said the land in isolation could not be developed and was suitable only for open storage, and even as part of a land-assembly package there were so many problems that profitable development for anything other than an extension to Meadowhall's car parking was not an option. There was so much other land more suitable for car-parking than the subject land that its value for that purpose would accordingly be severely restricted. On the subject of land-assembly, Mr. Hartley thought the only likely purchaser was the owner of Meadowhall, and even if they could be considered special purchasers, would only make one bid above the market. Meadowhall were known to be tough negotiators and the Department of Transport, or Highways Agency, as owners of the Triangle were not always easy parties to deal with. The prospects therefore of being able to successfully put together a viable development package were remote, and any hope value for these prospects must be extremely minimal.
36. Mr. Hartley produced a series of comparables in support of his valuation. He had used land in the Meadowhall area as, whilst by the relevant date the commercial market had slowed down due to the recession, that area had held up as a result of Meadowhall's success. Firstly, with regard to the northern section, he had applied £80,000 per ha (£32,375 per acre). This was a figure midway between the £33,750 per ha (£13,650 per acre) paid to Yorkshire Water by the acquiring authority for a small area of land (0.0445 ha) (0.109 acre) immediately adjacent to the subject land and the £123,550 per ha (£50,000 per acre) paid for a 1.214 ha (3 acre) area of land sold by British Rail prior to auction in February 1994 for B.1 development.
37. For the southern section to the south of the river, which could only be valued as amenity land he had applied £33,750 per ha (£13,750 per acre), the same as the Yorkshire Water sale. This figure had subsequently been agreed with Mrs Hughes.
38. His valuation became (adjusted on the basis of the areas agreed at the hearing):

Land to the north of the river 1.2294 ha at £80,000 per ha £98,352

Land to the south of the river 0.4739 ha at £33,750 per ha £15,995

£114,347

Say £115,000

39. Mr. Hartley said that he had valued the overflow coach parks on each side of Alsing Road immediately adjoining the northern section of the subject land and amounting to 6.27 ha (15.5 acres) for finance purposes (the owner being Meadowhall) in February 1992 at £494,211 per ha (£200,000 per acre). He said he regarded this open area of land as much more valuable than the subject land, but accepted in response to a question from the Tribunal that the latter would have been equally as valuable if it had been part of the land he was valuing. The valuation was on the assumption of motor trade uses and equated with a number of other comparables where B.1 uses were permitted. In respect of the subject land, he said in his oral evidence that he had allowed the sum of £37,620 to represent what little hope value he thought might have existed at the relevant date. This was more than amenity value, but less than full development value. He acknowledged that he had not mentioned hope value in any of his reports.
40. In cross-examination, Mr. Hartley said that that when he was first instructed by the acquiring authority, his brief was to do the best possible deal for his client but realised it was not his job to deprive the claimants of their due entitlement under the 1961 Act, and said he recognised that his duty was to this Tribunal. As far as his evidence on the Planning Framework Land Use Plan was concerned, Mr. Hartley acknowledged that his statement regarding the allocation of the rest of the subject land that was not designated as tramway, together with the Tinsley triangle, as landscape building and open space, was wrong. In the principal land use key, the Meadowhall area was shown as having preferred uses of 'industry and business, leisure and tourism'.
41. It was put to Mr. Hartley that a number of his comparables, and particularly that relating to 7.89 ha (19.5 acres) with planning permission for retail warehouse development at Attercliffe Common, indicated SDC were allowing retail developments even though they had apparently 'set their faces against it'. He said that Meadowhall had opened for business in September 1990, at which time it was fully let and over-subscribed. It had been phenomenally successful and the traffic congestion caused was much worse than had been anticipated. Hence, applying hindsight in 1992 and 1995, the planners were being ultra-cautious about permitting anything that would exacerbate the problems. However, it was accepted that the traffic problems may not have been so apparent at the relevant date. As to the Council's proposals for improvements to Alsing Road, Mr. Hartley said he had not looked into that aspect.
42. Mr. Hartley accepted that the Land Use Plan in the SDC Planning Framework related to the scheme world, and that in the no-scheme world the land allocation would have been different. However, he also accepted that the draft UDP was relevant at the valuation date and that it provided the best and most reliable information as to likely development scenarios. He acknowledged that the accompanying plan designated the subject land as part of the special shopping centre, but said that retail permission on that part of the Meadowhall complex was most unlikely. B.1 use was the most likely use to receive a favourable response in planning terms, but the development constraints particularly relating to the physical characteristics of the land made such a development unlikely.
43. He accepted that attributing a value to the northern section of the land that was very much lower than the figures he had applied to other B.1 land and the adjoining overspill coach park was due to the fact that he had looked at the land in isolation. Even though an overall development, to include the Tinsley Triangle and some or all of the coach parks might be feasible, the development constraints caused by the viaduct and, particularly, the inadequate access would seriously deter potential buyers. Furthermore, there was no guarantee that the owners of Meadowhall would wish to participate in a land assembly scheme as they already owned 48 acres, and had other available land that was better, and developable in isolation, for B.1 development. To get involved in a scheme with the subject land might devalue the other sites. If Meadowhall did not choose to participate, they might not be prepared to negotiate to provide the improved junction at the entrance of the subject land which, it was agreed, was inadequate as an access in its present form.
44. Mr. Hartley believed it was theoretically possible to provide an alternative access into the subject land and the Tinsley Triangle from Wharf Road, off the Sheffield Road, but this would require the provision of a new bridge over the river, the canal and a railway. This would obviously be extremely expensive and would involve other third parties. As such, he accepted that Alsing Road was the natural access, subject to the constraints and land assembly problems he had referred to. He said he did not really think the subject land (northern section) provided an adequate access to open up the Tinsley Triangle for the sort of development being mooted by the claimant, even if the access into the subject land from Alsing Road was improved. He did accept that the Council's proposals for the eventual improvement of Alsing Road would have been in the knowledge of the market at the relevant time.
45. Mr. Hartley admitted that he had valued a triangular area of land extending to 0.52 ha (1.3 acres) almost adjacent to the subject land (opposite the bridge that separated the northern and southern sections) for the owners of Meadowhall for internal transfer purposes in June 1999 at £390,000 (£741,300 per ha)(£300,000 per acre). He had carried out a residual valuation on the basis of a lapsed planning permission (granted in 1994) for 15,000 sq.ft. offices. This had not been included in his main report that was produced in January 2001. At the same time and for the same purposes he had re-valued a 1.21 ha (3 acre) site on Sheffield Road opposite the principal access roundabout into the Meadowhall complex, that was in his list of comparables at the same figure as had been applied in 1992 (£617,763 per ha (£250,000 per acre).
46. It was put to him that, taking the two valuations together, this indicated 1999 values to be the same as 1992 values. Thus, if the 0.52 ha (1.3 acre) site was worth £741,300 per ha (£300,000 per acre) in 1999, it would have been worth the same in 1992, and being so close to the subject land must mean the subject land was worth more. Mr. Hartley said that the 0.52 ha (1.3 acre) site had a direct frontage onto the periphery road around Meadowhall and was not therefore subject to the development constraints that he had referred to in his evidence.
47. Mr. Hartley had also valued 4.45 ha (11 acres) comprising two long, narrow, former railway embankments in June 1999, again for Meadowhall and for group restructuring purposes. The value attributed was £1 million (£224,861 per ha)(£91,000 per acre) after allowing estimated costs of £1.25 million for removing the embankments. The land had no planning permission, but was in the area designated (as was the subject land) as a special shopping area. Parts of this land, due to its attenuated shape would be difficult to develop, but it was also located adjacent to the spine road and in part, immediately adjacent to the 3.8ha (9.4 acre) site for a themed development comprising 6 screen cinema, leisure centre, bowling alley, restaurants and bars which he had valued at £5 million – the same figure he had applied in 1994. The theme site was, he said, very special and was not comparable with the subject land.
48. With two of the comparables that Mr. Hartley had provided in his proof - the 6.67 ha (16.5 acre) and 1.41 ha (3.5 acre) sites on Weedon Road valued at about £490,000 per ha (£200,000 per acre), and also valued for Meadowhall, he said these were all 'middle range' figures rather than optimistic or pessimistic valuations. Asked why he had not attributed the same value to the subject land as he had done to the embankments, which were not dissimilar in being long, narrow, and difficult to develop in isolation, Mr. Hartley said the embankments and the surrounding land were all in the same ownership, and therefore the development constraints and other problems that he had referred to regarding the subject land would not apply.
49. The overall conclusion that Mr. Hartley came to regarding values was that B2/B8 uses would be £370,650 per ha (£150,000 per acre), B.1 £494,200 per ha (£200,000 per acre) and Motor trade uses £617,750 per ha (£250,000 per acre).
50. The effects of any easements relating to the land were difficult to value precisely, but the existence of these and the possibility of objects falling from the motorway were just two of the many factors that Mr. Hartley said led him to the conclusion that the subject land could only have very limited development potential in comparison to his comparables, which were mostly clean sites that were readily accessible.
51. Although he did not know for sure, as the matter had been dealt with by his predecessor, he thought the acquiring authority were trying to buy the Tinsley Triangle in 1998 for car parking. He produced a handwritten valuation of the land which was for £215,000, the figure in the draft conveyance. This was based upon a value of £185,325 per ha (£75,000 per acre) being estimated at half its full open market value. From that was deducted a projected 50 per cent payment (for the freehold element) for access, leaving a value of £69,500 per ha (£28,125 per acre) for the freehold element of the land. Adjusting for the fact that part of the land was leasehold gave an agreed figure of £215,000. Mr. Hartley agreed that that figure was the value of the land after the Stokes payment had been taken into account, and accepted that the £37,500 was the ransom element on a per acre basis.
52. He said he had not included reference to his firm's valuation of the Triangle in his evidence because he thought it was not a realistic proposition and he would not necessarily have come to the same conclusion. However he accepted that the Triangle was part of the valuation exercise undertaken in connection with the scheme.

CLOSING SUBMISSIONS

53. For the acquiring authority, Mr. Williamson referred firstly to the arguments relating to s.5 rule (3) of the 1961 Act and confirmed it was agreed the non-amended version applied at the valuation date. The words "the special needs of a particular purchaser or…" were therefore included. It had been submitted during the hearing that a special purchaser would be Meadowhall, but under rule (3) account should not be taken of the existence of a special purchaser in determining the compensation. Whilst the existence of the Meadowhall development should not be ignored, the owners should be ignored as a potential bidder for the Tinsley Triangle, e.g., any assumed access should be ignored. Any purchaser at the relevant date must be assumed to be required to negotiate with both Meadowhall and the DoT/Highways Agency for the purchase of the land necessary to assemble a viable development site.
54. Mr. Williamson said that there could be no question of the subject land being developed in isolation and pointed out that Mrs Hughes had agreed in cross-examination that the only conceivable use for the northern section of land, on its own, was as open storage for which an agreed value £49,400 per hectare (£20,000 per acre) applied. Based on the agreed area, this would give the northern section a value of £60,372. It had been agreed that the southern section, which could only be accessed by the bridge over the River Don had an amenity value of £33,750 per ha (£13,660 per acre) and on the agreed area this was £15,994. The total value of the land taken in isolation was, therefore, £76,226 and it appeared that as a base value, the figure was agreed.
55. As the dispute centred on whether any compensatation should be increased from such a base value to take account of hope value reflecting the possible opportunity of a joint development with the Tinsley Triangle, the questions of risk –v- reward from an arms length developer's perspective needed to be considered. The risks identified as applying at 5 August 1991 included the fact that assumptions had to be made about land in two other ownerships in terms of site assembly. There was no evidence that the owners of the Tinsley Triangle were willing vendors at that date as it was not until 1994 that outline terms were agreed. Even then negotiations proceeded at a very slow pace, and in October 2000 the Highways Agency as owners advised the acquiring authority that they wished to retain the land for operational purposes, and were therefore withdrawing. Thus, it required a leap of faith to assume that the land might actually have been transferred to a developer in 1991.
56. Mr. Williamson said that less faith was required to assume the participation of the then owners of Meadowhall (Stadium Developments) in respect of the necessary improvements to the access from Alsing Road. However, it could not be assumed that Stadium Developments would necessarily adopt a negotiating position favourable to the claimant. As was acknowledged by Mrs Hughes, they would have been in a very strong bargaining position. In that regard, any additional value to the claimant's land on the Stokes principle would need to be split with Stadium, with a higher proportion going to them.
57. The claimant's expert had not undertaken a residual valuation and therefore there were no estimates of costs for roads, drainage, moving statutory services, dealing with easements, together with those associated with acquiring the land from Stadium Developments for the necessary access improvements. No layout plan had been prepared taking into account the viaduct and the Highways Agency's stand-off requirements around the supporting pillars. Furthermore, no exercise had been undertaken to assess demand for the uses Mrs Hughes said the land was suitable for.
58. The principal development control policy that was in force at the relevant date was the SDC Planning Framework although it had been accepted by Mr. Hartley that it was appropriate for the claimant to rely upon the Sheffield City Council UDP Consultation Draft where the land was designated as part of the special shopping area. However, that was only a first draft and it would have been given little weight in determining a planning application. This was a view that had been supported by the Council's Planning, Transport and Highways Department in their letter of 13 February 2001 produced in evidence. Furthermore, objections were received to the designation of the Tinsley Triangle as part of the special shopping area, and the policy for that area was subsequently changed to a preferred B.1 use. Mr. Williamson said that a developer would have been aware of those objections.
59. Even if weight were to be given to the draft UDP, Mr. Williamson pointed to the relevant part of the text which read:

"Meadowhall

…any more shopping development here would mean an unacceptable impact on the Central shopping Area and nearby District Shopping Centres…"

In his submission the claimant's first valuation based on the assumption that shopping would have been permitted on the subject land and the Tinsley Triangle was a pure pipe dream. Not only did Mrs Hughes have no comparables upon which to base her assessment of value, but there was no supporting evidence for the information she had received suggesting that retail values were 10 times £50,000 per acre, the value for industrial use. The letter that Mrs Hughes had referred to from Stadium Developments, expressing a tentative interest in acquiring the subject land gave no indication that it was required for retail development. There was no credible basis for assuming that planning permission for a retail development would have been forthcoming, and for that reason the claimants valuation on that basis should be totally rejected.

60. Mr. Hartley's valuation figures were based upon two comparables: the sale at amenity value of the small piece Yorkshire Water land at the dog-leg section of Alsing Road adjacent to the entrance of the subject land, and the land abutting Sheffield Road sold by British Rail in 1994 at £123,500 per ha (£50,000 per acre). By taking a figure midway between the two, whilst not specifically saying so in his report, he had allowed an element of hope value which amounted to £37,620.
61. Mr. Williamson said that during the course of the hearing the parties had agreed that, subject to the constraints that he had referred to in his submissions, the most likely use at the relevant date would have been B.1, leisure, motor trade or car-parking. On a B.1 basis Mrs Hughes' figures of £370,650 per ha (£150,000 per acre) which were based upon comparables that were 'clean' sites, needed to be reduced to reflect the payment for access rights, infrastructure and developability problems on the subject land. No attempt had been made to adjust the figures to take account of these problems.
62. The figures that had been introduced to the hearing relating to Lambert Smith Hampton's breakdown of the agreed purchase price for the Tinsley Triangle of £215,000 did reflect adjustments, and took account of the ransom payment that would be needed for the access. In the absence of any other forensic evidence the basis of this analysis did fall to be considered. According to that breakdown, Tinsley Triangle was valued at £69,500 per ha (£28,125 per acre) based upon parking values at 50 per cent of B.1 value and deducting a further 50 per cent access payment. Applying this figure to the northern section of the subject land produced a value for that portion of £85,438. To that, the agreed value of the southern section should be added (£15,994) to give £101,342. Part of the ransom value of the Tinsley Triangle then needed to be added.
63. Based upon the presumption in the breakdown that the provision for access payment amounted to £92,662 per ha (£37,500 per acre), this gave a total ransom value for the 8.3 acres of £312,525. As Stadium Developments were in the stronger negotiating position it was submitted that they would take two-thirds of that sum on the Stokes principle, leaving one-third, or £104,175 to be added to the value of the claimant's land. Thus the total value of the claimant's land on this basis would amount to £205,607. Mr. Williamson said that whilst the acquiring authority strongly refuted this methodology, such a figure must represent the summit of the claimant's ambitions on the evidence available.
64. In summary it was the acquiring authority's case that the value of the subject land was as per Mr. Hartley's original evidence (£115,000) but if the claimant's B.1 site assembly basis and the ransom value arguments were accepted, then the maximum possible value would be £205,607.
65. For the claimant, Miss Bhaloo said the issue was simply which expert's evidence was to be preferred; it was essentially a matter of judgment as to which figures 'feel right' in the context of the situation that prevailed at the agreed valuation date. That date was important to bear in mind as it was the claimant's submission that the acquiring authority's evidence was tainted by hindsight, and too much weight had been placed upon planning scenarios that occurred post that date.
66. Mr. Hartley's evidence appeared, she said, to be more concerned with advancing the interests of his client than fulfilling his duties to the Tribunal. For instance, it became evident in cross-examination that he had failed to include important comparables (namely the valuations he had undertaken in 1999 for the owners of Meadowhall), and only at that point did he acknowledge that Meadowhall owned a number of potential development sites, the plan produced at the hearing indicating that many of them were directly comparable to the subject land. It also became evident that one of the valuations undertaken in 1999 was a re-valuation of a site he had previously valued in 1994. Furthermore, the 0.52 ha (1.3 acre) site that he valued at £741,300 per ha (£300,000 per acre) was small, had a difficult configuration and was extremely close to the subject land and the 4.45 ha (11 acres) of 'embankments' that he had valued at £617,750 per ha (£250,000 per acre) (prior to a deduction for removal of the embankments) were important in that they had similar disadvantages to the subject land, and it was surprising therefore that they were not mentioned until cross-examination. Might it have been, Miss Bhaloo said, that these comparables were not included because they did not assist the acquiring authority's case?
67. Mr. Hartley's reliance on the sale of a very small area of land by Yorkshire Water that was affected by an easement and the land sold by British Rail on Sheffield Road (which was outside the area designated in the draft UDP as a special shopping area) in 1994, by which time values had dropped considerably since the valuation date, could not be justified. These were low figures in comparison with, say, the valuations of the coach parks which were immediately adjacent to the subject land and more importantly the embankment land, both of which had been excluded from his reports.
68. There was also concern on the claimant's part that Mr. Hartley had failed in his evidence to mention the valuation of Tinsley Triangle that had been prepared by a member of his own firm. He should have been aware of it, and should have referred to it or adopted the same principles in his report. For example, the earlier valuation of the Triangle had acknowledged the ransom principle, and valued it, whereas Mr. Hartley's report rejected that principle on the basis that alternative means of access might have been available. In cross-examination, Mr. Hartley had accepted that the claimant's land was the obvious barrier, and that it was the obvious access to Tinsley Triangle.
69. The fact that the acquiring authority was negotiating to purchase Tinsley Triangle supported Mrs Hughes' view that that land had development potential within the Meadowhall context. The valuation of the land had been undertaken by Mr. Hartley's colleague on the basis of car parking, but Mr. Hartley had studiously avoided acknowledging that that may have been the use to which it was intended to be put.
70. It was submitted that Mr. Hartley's evidence implied that the existence of Meadowhall served as a blight on the value of the claimant's land. This was patently not the case. His misreading of the key to the Planning Framework Land Use Plan in which he stated that the land was allocated as 'landscape structure and open space' should be noted, and his reference without any evidence to the problems of objects flying off the motorway should not be given weight.
71. Miss Bhaloo said it was common ground that the most obvious use for the subject land was a B.1 or motor trade use. It was clear from Mr. Hartley's comparables that the value of such land would have been in the region of £494,200 to £617,750 per ha (£200,000 to £250,000 per acre). This even applied to areas of land that were not straightforward in development terms (the embankment land) which had a base value of £617,750 per ha (£250,000 per acre) before deducting the exceptional cost of groundworks. Bearing that in mind, it was submitted that Mrs Hughes' figure of £370,650 per ha (£150,000 per acre) more than took into account any site assembly and infrastructure risks.
72. The reality of the situation that was confirmed by the evidence was that there was undoubtedly development potential on the subject land and for Tinsley Triangle (the latter confirmed by Lambert Smith Hampton's valuation for the acquiring authority in 1994, and the subsequently fruitless negotiations for the acquisition). Furthermore the ransom element was acknowledged as existing both in the valuation referred to and, eventually, by Mr. Hartley in cross-examination. Mr. Hartley also accepted that the draft UDP was the most appropriate information at the time and that designated the land as part of a special shopping centre.
73. It was submitted that even with the words "the special needs of a particular purchaser" included within s.5 rule (3) of the 1961 Act (the pre-amended version), Meadowhall and its owners were not to be excluded from the equation. This was apparent from Batchelor v Kent County Council [1990] 1 EGLR 32 where it was held by the Court of Appeal that the rule as originally enacted did not apply on the basis that the land taken provided the most suitable, but not the only access to a development site, and that 'most suitable' does not correspond with 'specially suitable'. In any event, it was only the special suitability of the land for a purpose for which there is no market apart from the special needs of a particular purchaser which has to be disregarded. It was clear from the evidence that any special suitability of the land was not confined to the needs of Meadowhall. The land was obviously ripe for development because of the proximity of Meadowhall and the availability of other adjacent land, but that was not the same as there being no market for it apart from the special needs of a particular purchaser.
74. For all these reasons, it was submitted that the claimant's evidence should be preferred.

DECISION

75. I deal firstly with the arguments relating to s.5 rule (3) of the 1961 Act. It was agreed that the originally enacted wording of that rule was relevant at the valuation date. Therefore whilst, as Mr. Williamson said, the physical existence of the Meadowhall Development could not be ignored, if the subject land had a particular suitability or adaptability in connection with Meadowhall – for instance, additional car parking for the shopping centre, that special suitability or adaptability should not be taken into account. In my judgment, there would certainly be no market for car parking in that location, other than in connection with the Meadowhall development, and none of the other uses to which the land (both the subject land and the Tinsley Triangle) might be put are uses for which there would be no market other than for one particular purchaser's special needs. Therefore, if there were any additional value in the land due to the special needs of Meadowhall it is to be ignored.
76. However, I agree that little turns on this issue as, even if there were some additional value to Meadowhall, or anyone else for that matter, it is likely, as Mr. Williamson said, that they would only make one bid over and above the market value. The evidence indicated that Meadowhall already had a large bank of land in its ownership, some of which could be utilised to provide additional parking if it was required. That fact reinforces my view that the owners of Meadowhall would not be likely, in any event, to bid over and above the market value of the subject land for car parking use. The same goes for any other use to which the land could be put (subject to the constraints I shall refer to later). The evidence produced by Mr. Hartley both in his main report and in cross-examination demonstrated that Meadowhall had large areas of vacant land located within the special shopping area (as allocated in the draft UDP). The valuations of some of that land carried out for internal or group restructuring purposes showed that it had potential for a broad range of uses from retail through office and industrial to leisure and fast food. Thus, the subject land was not specially suitable for the needs of Meadowhall. Likewise, the availability of other land within the area, together with the physical constraints applicable to the subject land itself meant that, in my view, it was unlikely to be deemed specially suitable for anyone else. In other words, there was no evidence that there were any other parties who might be considered to have special needs for which the land which would otherwise have no market.
77. The arguments regarding the applicability of the SDC Planning Framework or the draft UDP do not need consideration as it was agreed during the course of the hearing that the use that was likely to find most favour with the planners at the relevant date was B.1 offices. This was confirmed in the Sheffield Planning, Transportation and Highways letter of 13 February 2001 referred to in evidence. In that letter the Head of Planning, Transportation and Highways said that policy IB8 in the UDP deposit draft explained that beyond the preferred use of B1 there may be some limited opportunities for other uses, such as D1, D2 and A1 shops if less than 280 sq.m. total. However, any limited permission for shopping would be small scale and included as part of a business development, or would have to be matched by a commensurate reduction in the floor space at the main Meadowhall development (which I consider unlikely).
78. Whether or not there might have been an opportunity to obtain some sort of retail or quasi-retail planning permission on part of the land, I have no doubt that any application for retail use would have been, as suggested in evidence, 'vigorously opposed'.
79. As to whether or not Mr. Hartley misinterpreted the key on the Land Use Plan in the SDC planning Framework document (and I am not sure that he did), the fact that the parties have to all intents and purposes agreed the most likely uses makes, as I have said, consideration of that point irrelevant.
80. I agree with Mr. Williamson's submission that to consider there was a retail value of £1,235,500 per ha (£500,000 per acre) as put forward by Mrs Hughes, was 'a pipe dream'. There was no sustainable evidence on which that figure was based, as she admitted, and she had not allowed any discounts to reflect site assembly, access or other problems.
81. There is also the question of whether there was a market for further retail use in that particular location. Bearing in mind the physical disabilities of the subject land and the fact that the only access was over Alsing Road, rather than from, say, the main periphery road around Meadowhall, and even if the Triangle were included (and I shall deal with this aspect in detail in a moment), its location, tucked away beyond the motorway viaduct made it eminently unsuitable, in my view, for retail development.
82. Having rejected the claimant's valuation on that basis, I return now to the use that the parties have agreed to be most appropriate – B.1. The first matter to establish is the value of land in general, in that location, for that use, at 5 August 1991. I then consider all the other arguments relevant to determining an actual value for the subject land at that time.
83. Mrs Hughes said that £370,650 per ha (£150,000 per acre) was supported by her comparables. In fact, the comparables she referred to were all less than that figure. Nevertheless, Mr. Hartley concluded that B.1 values were at least £494,200 per ha (£200,000 per acre) and produced a number of comparables that supported that assessment. Indeed, a number of the valuations he had carried out for the owners of Meadowhall on their sites supported higher figures. However, they were valuations and not sales, and cannot therefore be given the same weight as actual sales. Having said that, I take particular account of his acceptance that, if the subject land (the northern section) had been in the same ownership as the overspill coach park that he valued for Meadowhall in 1999 (at £494,200 per ha (£200,000 per acre) on the basis of a B.1 development, he would have valued it at the same amount.
84. It could be expected that there would be a difference in values between 1999 and 1991. However, Mr. Hartley's evidence, from his valuations, did indicate that there was little difference between 1999 and 1992. Bearing in mind his view that land in the vicinity of Meadowhall had held up due to the success of that development, and was less affected by the recession that was by then looming large, I consider it likely that that was the case. After the considerable drops that occurred in values after 1991 due to the recession, and the recovery that took place towards the end of the 1990's, I am satisfied that values in 1998/99 would have been very similar to 1991. In my judgment, the evidence certainly supports a figure of at least that which Mrs Hughes had applied.
85. I accept the claimant's argument that Mr. Hartley had been selective in relying upon just two comparables in determining a value for the subject land, one of which was a very small piece of land acquired at amenity value. The other site off Sheffield Road sold in 1994 (a time when the recession was at its deepest) at a figure that was very much lower than all the other B.1 comparables to which he referred. That site was also outside the area designated in the UDP as a special shopping area.
86. Therefore taking all the evidence into account, and particularly bearing in mind the fact that the subject land was not located on the main periphery road, or in such high-profile locations as the other sites to which Mr. Hartley referred, I conclude that £370,650 per ha (£150,000 per acre) was a fair value for land with extant or assumed B.1 planning permission in that location in August 1991. This, therefore, serves as a 'base' figure from which adjustments have to be made to take account of all the physical and other factors to which I now turn.
87. Mrs Hughes said that, in the no-scheme world, the northern section of the subject land and the Tinsley Triangle to which it gave access would have formed a natural extension to the Meadowhall development. I agree with that statement, and it was apparent from Mr. Hartley's comments in cross-examination that he accepted there might be opportunities for a package to be put together. Indeed, in his proof of evidence he said that the success of Meadowhall had the effect of increasing demand for sites on the periphery. However, it was his view that the physical constraints, including the motorway viaduct, the access problems and the long, narrow configuration of the subject land meant the hope value element, over and above any value as storage land, would be very small. He said that the owners of Meadowhall held the trump card over access and as such, any potential for the profitable development of the subject land and the Tinsley Triangle would be outweighed by the price that would have to be paid for that access land.
88. In my view that was a fair point, but however tough the owners of Meadowhall might have been as negotiators, in commercial reality, if there was a reasonable prospect of achieving a figure significantly in excess of its value as coach park or overspill coach park for the small area of land that would have been required to improve the access into the subject land, then I think it likely they would have been co-operative. There was also evidence that Meadowhall may themselves have been interested in acquiring the subject land very shortly after the relevant date, as confirmed by an exchange of correspondence between Mr. Healey of Stadium Developments and the Shrewsbury Hospital Estate Office.
89. Mr. Hartley also said that there was no evidence to suggest that the owners of Tinsley Triangle were willing sellers at the relevant date, and that subsequently it had not been possible to conclude a deal. That may be true, but I think it realistic to assume that if the owners of a not insignificant area – 3.35 ha (8.3 acres) of landlocked waste land thought development potential, and thus increased value, could be unlocked by becoming part of a land assembly scheme they would most likely be interested. That indeed was the case when negotiations commenced some years later for the disposal of the Triangle to the acquiring authority to facilitate an onward sale to Meadowhall.
90. Mr. Hartley's own firm had been involved with those negotiations, and it was accepted that in the valuation that one of his colleagues had prepared at the time, £92,660 per ha (£37,500 per acre), or 50 per cent of the car-parking value, had been allowed as a ransom payment for the access. The fact that the sale did not proceed due to the Highways Agency eventually concluding (in 2000) that the land was required for operational purposes was not, in my view, sufficient for me to conclude that, in 1991, the then owners would not have been a willing party to a land assembly scheme. As I have said, negotiations were commenced and all but finalised during 1997 and 1998.
91. In my judgment, if the subject land and Tinsley Triangle had been available to the market in the no-scheme world at August 1991, prospective commercial developers would have concluded that, subject to the acquisition of the small area of land necessary to facilitate satisfactory improvements to the access, there were opportunities for a viable B1 development on part of the Tinsley Triangle. The value of £370,650 per ha (£150,000 per acre) that I have determined as appropriate takes into account, as I have said, the location of the land. I accept Mr. Hartley's view that adjustments have to be made for the area beneath the viaduct, and for the inconvenient shape (in development terms) of the subject land. Mrs Hughes makes no such adjustment, and has valued the whole area as if developable.
92. A reduction of about 50 per cent had been made by Mr. Hartley in his valuation of the 4.45 ha (11 acres) of embankments for the owners of Meadowhall, but that was to take account of very extensive earthworks that would have been required to make the site developable. In this case, no such works would be required, the sites being relatively level, but there would be constraints on developing under the viaduct (which could nevertheless be used for car-parking or some limited development in association with the overall scheme). Also there would be the need to take account of easements and, due to the narrow shape of the subject land, limitations on B.1 development on the area north of Alsing Road, and the area south of where the access road into the Triangle passed through the subject land where it is immediately adjacent to the viaduct. This leaves approximately one third of the northern section to the west of the viaduct and immediately to the north of the bridge separating the two sections that could be developed, in association with the Triangle, for B.1 purposes and to which full B.1 development value would undoubtedly apply. I also see no reason why the part of the subject land required to provide the access road into Tinsley Triangle should not have a value matching the full development value.
93. As Mrs Hughes rightly said, precise figures attributable to all these various aspects are difficult to determine, and as part of the site assembly process, parties would strike a horse deal. However, in determining this reference, it is necessary to apply specific figures to specific areas. I therefore conclude that the value of both the land under the viaduct and the whole of the northern section of the subject land, taking all the above factors into account, would amount to two-thirds of the full market value i.e., £241,700 per ha (£100,000 per acre).
94. I now turn to the ransom element on a Stokes basis. Bearing in mind that the owners of Meadowhall were possibly interested parties, and the fact that any development of the subject land and the Tinsley Triangle would be likely to have a beneficial effect for Meadowhall in any event, I think that a ransom payment of 50 per cent, as used in the Lambert Smith Hampton valuation of the Tinsley Triangle, is somewhat high. Again, no evidence was produced to sustain that percentage, other than the perceived negotiating strength of Meadowhall. For the reasons I have given, whilst I accept that that position is strong, on balance a figure more in line with Mrs Hughes's suggestion of one-third would, in my view, be appropriate and would be in line with what a developer would attribute to the value of the access.
95. However access to, and the development of, Tinsley Triangle is dependent upon two parties – the owners of the subject land and Meadowhall. Looking at these parties as potential development partners I accept Mr. Hartley's argument that as Meadowhall are in the strongest bargaining position, any ransom value in the Tinsley Triangle should be divided two thirds to Meadowhall and one third to the subject land. Also, Mr. Hartley suggested that a deferment factor of 3 years should be applied to cover the site assembly and planning procedure and Mrs Hughes thought 18 months. On balance, I think two years would be appropriate, and at 10 per cent (interest rates were high in 1991) that gives a multiplier of 0.82.
96. The calculation of the Tinsley Triangle ransom element becomes:

Gross Value

2.42 ha (6 acres) at full B1 development value £370,650/£150,000 £900,000

0.93 ha (2.3 acres) at 2/3 B.1 development value £247,100/£100,000 £230,000

£1,130,000

Ransom

£1,130,000 x 0.33 = £372,900 of which one-third (£124,300) is attributable to the subject land.

This leaves £757,100 (£1,130,000 - £372,900) to which the deferment factor of 0.82 is applied giving a value for Tinsley Triangle of £620,822. (£184,823 per ha or £74,797 per acre)

97. As to the subject land, using the same basis as above, one third of the value of the whole of the subject land (excluding the £124,300 from the Triangle) would be payable to Meadowhall for the access. The valuation of the subject land therefore becomes:

Gross Value

1.2294 ha (3.03 acres) at £247,100 per ha (£100,000 per acre) £303,000

0.4739 ha (1.17 acres) at £33,750 per ha (£13,660 per acre) £ 15,994

£318,994

Less Ransom payable to Meadowhall

£318,994 x 0.33 £105,268

£213,726

Add

Ransom value from Tinsley Triangle £124,300

£338,026

Deferment factor

£338,026 x 0.82 = £277,181

Net value, say, £277,250

98. This amounts to £162,772 per ha (£66,011 per acre) which I consider fairly reflects the development constraints and other factors outlined in evidence. In my judgment a developer in the market for sites in August 1991 would formulate his bid on the above basis. There was no evidence to support Mrs Hughes' contention that there was additional value attributable to the opportunity to grant an improved access to the sewage works, and I reject that element of the claim. I also reject the suggestion that there would have been any value in a clawback clause, even if one were inserted as part of the deal. The likelihood of obtaining permission for a development that had a value in excess of B.1 value would be, in my view, extremely remote.
99. I therefore determine that the compensation to be paid by the acquiring authority for the freehold interest in the subject land shall be £277,250.
100. This decision concludes my determination of the substantive issues raised between the parties, and my award is final. It will take effect as a decision when the question of costs has been 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 order 61 rule 1(1) 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: 31 August 2001

(Signed) P R Francis FRICS

ADDENDUM ON COSTS

101. I have received submissions on costs from the parties. The claimant submits that as it was successful, and on the premise that costs should follow the event, the respondent should pay its costs of the reference. Further, the decision should include an award of interest, this aspect being accepted by the respondent.
102. Whilst accepting that the general rule is that the successful party ought to receive its costs, and that it will be liable to contribute towards the claimant's costs, the respondent submitted that the discretion allowed under Rule 52(1) of the Lands Tribunal Rules 1996 should be applied in this instance.
103. Sections 4(1) and (2) of the 1961 Act provide for the Lands Tribunal to order, unless for special reasons it thinks it proper not to do so, the claimant to bear its own costs and to pay the costs of the acquiring authority if it is satisfied that the claimant has failed to deliver to the acquiring authority, in time to enable it to make a proper offer, a notice in writing of the amount claimed by it, containing particulars of the compensation claimed, distinguishing the amounts under separate heads and showing how the amount claimed under each head was calculated.
104. It was submitted that, having lodged a notice of reference in March 1997 and despite without prejudice negotiations having taken place between the parties, there had been no attempt by the claimant to quantify the claim in accordance with those sections. Even the provision by the claimant of a quantified claim under four heads in January 2001 in response to an application by the respondent for Further and Better Particulars, had insufficient details of the claim for it to make a proper offer.
105. Furthermore, the principle basis of the claim as presented to the hearing was for a value based upon retail use. That basis was unfounded (as confirmed in the decision) and a significant proportion of time was taken up by the acquiring authority in defending that evidence and the arguments relating to it.
106. Therefore, the acquiring authority submitted, there should only be a partial award of costs and they should be limited to those arising out of the steps taken by the claimant in support of its alternative, B1 use valuation and arguments only. It further sought a partial award of costs as a corollary to that set off.
107. In response to the acquiring authority's costs submissions, the claimant said there could be no question that, pursuant to the Lands Tribunal order of 12 December 2000, it had provided in the Further and Better Particulars sufficient information for an offer to be made. Further clarification of those particulars was not sought by the acquiring authority and indeed, albeit not until 15 May 2001, another without prejudice offer was made.
108. The parties had been negotiating since 1990 and the compensation in respect of the other three areas of land had been agreed.
109. The suggestion that time was wasted in respect of the claim for retail value was unfounded, as that only took up only a small proportion of time at the hearing and, as an example, there were only four paragraphs on that subject out of fifty-seven in the acquiring authority's written closing submissions.
110. The claimant said that the real issue between the parties was the hope, or ransom value, the existence of which was accepted by the Tribunal despite the acquiring authority's case that it did not exist. Mr Hartley had failed to refer to his colleague's valuation that accepted that principle until cross-examination, and the without prejudice offer made by the acquiring authority in May 2001 also accepted that principle. The May offer also offered the claimant its costs, and it was therefore irrational, now that offer had been beaten, and for the acquiring authority to try to recoup some of its costs.
111. I accept the claimant's submissions. The reference to this Tribunal related to four parcels of land, the compensation on three of these having been settled by agreement prior to the hearing. Negotiations must therefore have taken place and I accept the submissions that they did take place in respect of the all the parcels of land. I do not accept the acquiring authority's submissions that there was insufficient information or time to formulate a proper offer - indeed the sealed offer made on 15 May was not significantly less than the amount awarded.
112. Whilst the retail claim was undoubtedly overstated and was unsupported by sustainable evidence, the planning status of the area generally and the close proximity to Meadowhall meant, in my judgment, that the subject of retail possibilities was a matter that warranted investigation. The fact that the claimant argued for it, albeit unsuccessfully, cannot in my view be criticised.
113. In my judgment the amount of time taken up at the hearing on those matters was not sufficiently significant to warrant a somewhat difficult and tortuous calculation as to how costs should be split.
114. The claimant beat the sum being contended for at the hearing by almost three times and also beat the sealed offer albeit by a less significant amount.
115. For the above reasons I determine that the acquiring authority shall pay the claimant's costs in the reference, such costs to be agreed, or failing agreement to be assessed on the standard basis by the Registrar of the Lands Tribunal in accordance with the Civil Procedure Rules.
116. I also determine that the substantive award shall attract interest from the valuation date.

DATED: 27 September 2001

(Signed) P R Francis FRICS