England and Wales Lands Tribunal

[2001] EWLands ACQ_59_1997 (15 January 2001)


 


ACQ/59/1997

LANDS TRIBUNAL ACT 1949

COMPENSATION – compulsory purchase – rights of way – legal transfer – compensation awarded £28,670

IN THE MATTER of a NOTICE OF REFERENCE

BETWEEN

PETER W EDMUNDS Claimant

and

THE NATIONAL ASSEMBLY FOR WALES Acquiring

Authority

Re: Land at Llaniltern, South Glamorgan

Tribunal Member: P R Francis FRICS

Sitting at: 48/49 Chancery Lane, London, WC2A 1JR

on

9 January 2001

The claimant in person.

Kieron Beal of counsel, instructed by the Treasury Solicitor, for the acquiring authority.

© CROWN COPYRIGHT 2001

DECISION

1. This is a decision to determine the compensation payable to Mr P W Edmunds ("the claimant") in respect of the compulsory acquisition of approximately 7.0 acres (2.83ha) of land at St-y-Nyll Road, Capel Llaniltern, South Glamorgan ("the subject land") by the Welsh Office (now the National Assembly for Wales)("the acquiring authority") under the London to Fishguard Trunk Road (Culverhouse Cross – Capel Llaniltern Link Road) Compulsory Purchase Order 1982 ("the CPO").
2. Mr Edmunds appeared in person. Kieron Beal of counsel appeared for the acquiring authority, and called William J C Thomas FRICS a senior valuer in the Cardiff Valuation Office.

Background

3. At the Date of Entry, 12 October 1982, the claimant owned two parcels of land extending to some 26.99 acres (10.92 ha) (described in evidence as areas 1 and 2) in the parish of Capel Llaniltern, a rural area to the west of Cardiff. Area 1, which was accessed from the public highway known as St-y-Nyll Road, was acquired by him in June 1977 subject to a right of way reserved by the vendor allowing access to the immediately adjacent area 2, and further land to the east. Area 2 was acquired by the claimant in May 1980 and this was also subject to a right of way along the whole of the southern boundary, reserving rights of access with vehicles and animals to the vendor's further retained land to the east. By providing a field gate in the hedge separating areas 1 and 2, the claimant was able to access area 2 from the highway.
4. The claimant subsequently purchased (in 1984 – after the Date of Entry) extensive additional land to the east (area 3), this having originally had access along an established hardcore finished track and a bridge over the disused railway line that was to form the line of the new road. That track was extinguished due to the construction of the trunk road which was designed to link the A48 west of Cardiff with a new junction of the M4 motorway, but together with an additional right of way over land separating areas 2 and 3, the only means of access to area 3 is now over the new access lane provided through areas 1 and 2.
5. The CPO, which was confirmed by the Secretary of State for Wales on 7 April 1982, required the acquisition of parts of areas 1 and 2 described as:

Plot 2/6 24,934 sq.m. (6.16 acres)

Plot 2/10 2,024 sq.m. (0.5 acres)

Plot 2/12 1,377 sq.m. (0.34 acre)

Plot 2/6 was required for the construction of the new road, plot 2/10 was needed to provide the alternative means of access to the claimant's retained land and further land to the east, and plot 2/12 related to the re-grading of the bed of a stream, provision of a new field gate in the hedge and a culverted crossing between areas 1 and 2.

6. Notice to Treat was served on the claimant on 3 June 1982 in respect of the whole of the subject land, and Notice of Entry was served on 27 August 1982. Possession was taken of plots 2/6 and 2/10 on 12 October 1982 (the Valuation Date). Entry by way of licence onto plot 2/12 was on 27 January 1983 to undertake the required accommodation works. The claimant's retained land, extended to about 20.33 acres (8.23 ha).
7. Following the acquisition a new, metalled access was constructed on plot 2/10 along the southern boundaries of the retained parts of areas 1 and 2 immediately adjacent to the northern edge of the new trunk road.
8. Following Notice of Claim, negotiations took place between the surveyor appointed by the claimant, Edmund H Miles FRICS FAAV and the District Valuer and, according to the report prepared by Mr Miles in July 1999 all heads of claim were agreed as follows:

(a) Freehold interest to be acquired in plots 2/6 and

plot 2/10 and necessary licence rights over plot 2/12 £20,000

(b) Injurious affection to retained land £ 6,000

(c) Disturbance during works, and inconvenience £ 500

(d) Loss of timber £ 200

(e) Ongoing fencing liability £ 1,970

Total £28,670

9. At the pre-trial review relating to this reference held on 19 October 1999, the claimant alleged that despite the terms of the CPO, the acquiring authority had not obtained freehold title to plot 2/10. He said that, according to a Schedule of Accommodation Works provided to him prior to the Date of Entry, and relating to the construction of the access track on the land, it stated: "INTEREST- LICENCE". Whilst he did not disagree with the compensation figures that his former surveyor had purportedly agreed on the basis that plot 2/10 had been acquired, it was his view that it had not, and that such acquisition was not necessary due to the fact that he (the claimant) was prepared to grant all necessary rights of access to the adjoining land owners. However, this was subject to conditions relating to the provision of gates and stipulations regarding them being kept closed when not in use.
10. The acquiring authority said that whilst it would always try to negotiate a lesser interest if it is not essential to the scheme, and would thus take a licence if that were all that was necessary, in this case the claimant's failure to negotiate the required rights had, after more than 17 years, necessitated the transfer of the freehold. Such a transfer would enable the necessary rights to be granted, following which it would have no objection to the freehold being re-acquired by the claimant at market value.
11. Following that pre-trial review, this Tribunal confirmed that, in accordance with the limits of its jurisdiction, it would make an order confirming the compensation (set out in para 8 above) subject to receipt of the legal agreement in respect of the transfer of plot 2/10 to the acquiring authority and details of the terms of the offer of the land back to the claimant and the terms and conditions relating to the reservation of the rights of way to the adjoining landowners.
12. Some 9 months later, the acquiring authority advised the Tribunal that the claimant had failed to agree the transfer of the land, or to agree to the Deed giving rights of way to the adjoining owners, and sought an Order determining the compensation so that the sum could be paid into court, and the necessary Deed executed.
13. At the substantive hearing, the claimant reiterated his belief, through the Schedule of Accommodation Works referred to at the earlier hearing, that the freehold of plot 2/10 had not been vested in the acquiring authority. He was concerned that the rights of way the acquiring authority was proposing to grant him (if he was no longer the freehold owner) would not mirror the rights he had originally purchased – which were the right to pass and re-pass on foot, with vehicles and animals. Although the new definition would be the same, the fact that until recently he had been unable to prevent one of the adjacent landowners from leaving the road gate open, there was no gate on the new lane between areas 1 and 2, and there was no facility for animals to be taken around the cattle grid at the eastern end of the lane (into his other land at area 3), meant he would be disadvantaged in his use of the access.
14. Mr Edmunds said that he was, and always had been, prepared to grant full rights of access to the adjoining owners, subject to his concerns regarding usage and particularly the need for other users to be obliged to close gates, being resolved. He said he had expended in the region of £11,500 in legal and surveyors fees in attempting to negotiate the rights of access with his neighbours, and representing his position with the acquiring authority. As he felt he had been misled by the District Valuer by having the onus placed upon him to do the negotiating, he was claiming re-imbursement in full.
15. In cross-examination he confirmed that he had not acquired the third area of land, to the east of areas 1 and 2, until some time after the relevant date for the CPO. The track that had been extinguished by the scheme works was the principal former access to area 3, and to the properties belonging to the neighbouring owners, Messrs Lewis and Hopkins. Although, when Mr Edmunds had acquired areas 1 and 2, rights of way were reserved for the adjoining owners over that land, he confirmed that prior to construction of the new access as part of the scheme, it could not be used as there were then no track or gates actually in place.
16. As to why, some 18 years after the Date of Entry, he had still not granted the necessary full rights of access to his neighbours, Mr Edmunds said that he was happy to do so if he was able to use the access for himself in as unrestricted a fashion as he believed existed previously. He was unable to produce evidence of the actual rights that he alleged did previously exist.
17. For the acquiring authority, Mr Thomas said that the CPO provided for the acquisition of the freehold interest in all the land in the schedule, but it was policy not to do so if a licence to undertake accommodation works was sufficient. That had happened in respect of plot 2/12, and could have happened in respect of plot 2/10 if the necessary rights of access for adjoining owners had been granted by the claimant, by formal deed. The situation that currently existed was untenable in that Messrs Hopkins and Lewis had no formal right of access to their properties, and they would therefore be unable to sell them if they wished to.
18. The acquiring authority had tried to get Mr Edmunds to enter into the necessary Deed, but as agreement had not been reached after 18 years, it had no alternative to enforce the transfer so that the legal formalities could be completed. Mr Thomas stressed that the acquiring authority had no need or desire for ownership of the land in question but had a statutory duty to enforce ownership in order be in a position to grant unrestricted rights of access for those adjoining owners who needed it. He had understood from his negotiations with the claimant's former surveyor, and the report that had been produced by Mr Miles, that terms of compensation were not in dispute.
19. As to the work schedule that had led Mr Edmunds to believe that only a licence had been acquired over plot 2/10, Mr Thomas pointed out that this preceded the CPO and may have been simply a reflection of the parties understanding that only a licence would be required – as had been the case with plot 2/12. In any event, that schedule could not countermand the provisions of the CPO which, he pointed out (in Schedule 1) clearly proves that acquisition was the intention.
20. In closing, Mr Beal said that there were no powers under the CPO procedure to acquire a licence, so as a matter of fact and law, a licence cannot be valued for this purpose. The acquiring authority has been more than generous to the claimant in allowing so long for the matters of the rights of access to be resolved, and indeed he had benefited in that the road that had been provided was to a much better specification (for reasons that were unclear) than had been originally specified. It was accepted that there was nothing to be gained by the claimant in transferring the land to the authority, and then buying it back at market value, but the authority had a duty to the adjoining landowners to ensure that they had proper rights of access granted.
21. As to the professional fees that Mr Edmunds was claiming, Mr Beal said that they all related to the reference to this Tribunal, and should therefore be treated as costs in the case when that matter came to be decided.

DECISION

22. This is a straightforward matter that has been complicated by a dispute over the necessity to transfer the freehold of parcel 2/10, and the grant of rights of way over the newly constructed access road. The matter can be dealt with fairly shortly.
23. The Lands Tribunal has no jurisdiction to deal with the rights of way issue, or to impose conditions upon any party in respect of the use of those rights. It was clear from the evidence that the acquiring authority has been more than patient (the matter having remained unresolved for more than 18 years), and despite the considerable time that has elapsed since the Date of Entry, the claimant has failed to conclude the requisite legal formalities regarding access for his neighbours.
24. The acquiring authority, it seems to me, has no alternative but to proceed in the manner it has requested to enable this matter to be resolved once and for all. As to compensation, there is no doubt in my mind that the parties had agreed the appropriate figures (as set out in para 8 above) and no evidence of alternative values was produced by the claimant at this hearing.
25. I therefore determine that the acquiring authority shall pay compensation in the sum of £28,670 to include the items for disturbance and injurious affection, together with surveyors fees on Ryde's scale and the claimant's legal costs of transfer.
26. This decision so far concludes my determination of the substantive issues in this reference. 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 the reference, including the specific costs referred to by the claimant in evidence, and a letter accompanying this decision sets out the procedure for submissions in writing.

DATED 15 January 2001

(Signed) P R Francis FRICS

ADDENDUM ON COSTS

27. I have received submissions on costs from the parties. The claimant seeks the reimbursement of legal fees incurred from three firms of solicitors amounting to in excess of £10,000 net of VAT. This was for advice relating to his attempts to reach agreement with the relevant parties regarding the access and rights of way issues, and in respect of the preparation of the Lands Tribunal claim.
28. Mr. Edmunds submitted that as the acquiring authority had placed the onus upon him to negotiate the necessary easements, rather than deal with the legal aspects itself, his legitimately incurred costs must be its responsibility.
29. The acquiring authority said that the Tribunal had found it had no jurisdiction to determine the rights of way issue. Furthermore, it had also indicated that, in any event, the acquiring authority had been more than patient in allowing the claimant approximately 18 years in which to negotiate the requisite rights which he had consistently volunteered to do.
30. The purpose of the reference was to determine the compensation payable to the claimant, and it was submitted that the open offer made by the acquiring authority under Rule 44 on 12 March 1998 in the sum of £28,650, was only exceeded by the Tribunal's award (of £28,670) by a de minimis amount, due to rounding. Thus the provisions of section 4(1) of the Land Compensation Act 1961 should apply, and the acquiring authority should be awarded its costs from the date of the offer. Also, it was clear from the evidence and correspondence that the claimant had failed to heed the recommendations of his own advisers with the result that the National Assembly for Wales had been put to wholly unnecessary costs in bringing the case to the Lands Tribunal.
31. Section 4(1) technically does not apply as my award was greater than the unconditional offer, although it is correct that the anomaly was caused purely by rounding. Section 4(3) is also inapplicable, as the claimant had not made an unconditional offer to accept a sum of compensation from the acquiring authority. However, I find that the general rule that the claimant should have his costs would not be appropriately applied where, as here, the sum awarded is effectively the same as that offered by the acquiring authority.
32. In my judgment therefore, and also bearing in mind the conduct of the claim, the proper order is that the claimant shall pay the acquiring authority's costs in the reference from 12 March 1998, such costs if not agreed to be the subject of a detailed assessment on the standard basis by the Registrar of the Lands Tribunal.

DATED: 13 March 2001

(Signed) P R Francis FRICS