England and Wales Lands Tribunal

[2002] EWLands ACQ_85_2001 (03 May 2002)

ACQ/85/2001

LANDS TRIBUNAL ACT 1949

COMPENSATION – compulsory acquisition of ancient track known as Mill Lane – claims of ownership – application to Tribunal under absent owner procedure rejected – reference made – simplified procedure agreed – failure by Highways Agency to lodge expert evidence – adjournment of hearing – written evidence directed – further failure by Highways Agency to lodge expert report – debarred from adducing evidence – determination solely on claimants' evidence – exceptional circumstances justify an order for costs against Highways Agency

IN THE MATTER of a NOTICE OF REFERENCE

BETWEEN MR & MRS C V COOK First claimants

and

MR S G PULLEN Second claimant

and

HIGHWAYS AGENCY Acquiring

Authority

Re: Mill Lane, Tintinhull, Somerset

Before P H Clarke FRICS

Sitting at Yeovil on 19 March 2002

Mrs Cook and Mr Pullen, claimants, in person

Miss Angela Reynolds, Bond Peace solicitors for the acquiring authority.


 


DECISION OF THE LANDS TRIBUNAL

1. This is a reference under the simplified procedure to determine the value on compulsory purchase of a track known as Mill Lane close to the villages of Tintinhull, Stoke sub Hamdon and Montacute, near Yeovil in Somerset.
2. Mr and Mrs Cook, the principal claimants, are the owners of a property known as Wellhams Mill (noted on some maps and sometimes referred to as Wellhams House and Wellhams Mill) which is now situated on the south side of the A3088, which connects Yeovil with the A303 trunk road at a roundabout a short distance to the west of Wellhams. Mr and Mrs Cook have occupied Wellhams since 1966. Mr Pullen, the second claimant, is the owner of Perrens Hill Farm which is a short distance to the east of Mill Lane.
3. Wellhams Mill was a working mill for many centuries. It is mentioned in Domesday Book; the last miller occupied the property in the 1940s. Before the construction of the A3088 in 1984 Mill Lane provided access to Wellhams from the nearest road, the A303, which at this location is on the line of the Roman road, Foss Way. It is likely therefore that Mill Lane is a track of some antiquity. In 1853 the Great Western Railway built a branch line from Langport to Yeovil which crossed Mill Lane immediately to the north of Wellhams Mill. Presumably the railway company acquired the part of the lane over which their line was built. This line was later closed, probably in the 1960s under the Beeching Axe. In or about 1984 the A3088 was built on the line of this old railway. Wellhams now has direct vehicular access onto the A3088. Mrs Cook said that when they used Mill Lane they maintained it for vehicles and had unfettered access. To her knowledge it was never maintained by any local or public authority. It is possible therefore that Mr and Mrs Cook, as owners of Wellhams Mill, also owned Mill Lane. They certainly had a right of way over it.
4. Mr Pullen's claim to ownership is secondary to that of Mr and Mrs Cook. It relates to part of parcel 57f in the compulsory purchase order (one side only up to half-width) and the whole of parcel of 57g (where Mr Pullen owns the contiguous land on either side).
5. It is, of course, not within the jurisdiction of this Tribunal to decide questions of title but it is clear that Mr and Mrs Cook have a realistic and not a fanciful claim to ownership of Mill Lane and so, to a lesser extent, has Mr Pullen.
6. Mill Lane runs in a north-west to south-east direction from the A303, a little to the south-west of Halfway House Farm, to a point on the A3088 opposite Wellhams Mill. It closes the angle of the A303 and A3088 which meet at a roundabout to the west of Wellhams. At the date of my inspection in March 2002 the lane had a concrete carriageway with grass verges and ditches on either side, bounded on both sides by hedges. The entrance from the A3088 was barred by a metal gate and the former access to the A303 at the other end of the track was blocked off and some farm buildings (Fir Tree Farm) were separated from Mill Lane by a similar gate. Thus, at the time of my inspection, Mill Lane provided access from the A3088 to Fir Tree Farm, the fields on each side and a footpath leading eastwards to a secondary road. I was told that at the date of acquisition Mill Lane was unsurfaced.
7. On 26 April 1988 the Secretary of State for Transport made The London-Penzance Trunk Road A303 (Ilchester to South Petherton) Compulsory Purchase Order (No.FW7) 1988. This provided for the purchase of land and rights for highway improvements and associated works (including the improvement of the A303) and in mitigation of any adverse effects. Mill Lane is included in this order as parcels 57 and 57a-g, described as a "private means of access". In respect of parcel 57a the right acquired was "the right to enter land for all purposes connected with the maintenance and construction of a culvert and head-wall on adjoining land." The order describes Mrs M Linklater of Welhams (sic) Mill as owner or reputed owner and occupier of Mill Lane (parcels 57 and 57a-g). This is now known to be incorrect, although it is a reasonable assumption that the owners of Wellhams Mill are the owners of Mill Lane.
8. Following the making of the compulsory purchase order, there appears to have been doubt regarding the ownership of Mill Lane. On 27 September 1988 a firm called the MRM Partnership wrote to all owners in the area requiring them to return a questionnaire stating whether they did or did not wish to claim ownership of Mill Lane. Mr and Mrs Cook and Mr Pullen claimed ownership or part ownership. I have not been told whether these claims were investigated at the time. The claim of Mr and Mrs Cook, as owners of Wellhams Mill, who acquired the property from Mrs Linklater, is consistent with the ownership details in Schedule 1 to the Compulsory Purchase Order. Nothing further happened until 1994. On 24 May notices to treat and notices of entry were sent to "The Owner or Owners and to all other persons having an interest in the land described in the Schedule hereto", namely parcels 57, 57a-g (Mill Lane). The notices were accompanied by a letter from the Highways Agency stating that the "owner/lessee/tenant" of the land in the schedule cannot be traced. Between 5 July and 4 August 1994 copies of these two notices were displayed at the entrance to Mill Lane. The Highways Agency took possession of Mill Lane on 4 August 1994. This is the date of valuation. It then appears that no attempt was made to deal with the question of compensation for another six years.
9. On 8 March 2000 Bond Pearce, solicitors to the acquiring authority, applied to this Tribunal by letter "for the determination of compensation payable to the untraced owner" of Mill Lane. On 1 June 2000 they wrote to owners of land in the vicinity of Mill Lane (including Mrs Linklater and her solicitors, Mr and Mrs Cook and Mr Pullen). This letter referred to the claims made in respect of the ownership of Mill Lane, stated that no deeds were produced to prove title (although I have no evidence that the claimants were asked to produced deeds) and that the district valuer had been requested to value plots 57, 57a-g for a payment into court under Schedule 2 to the Compulsory Purchase Act 1965. Claims for compensation should then be made to the High Court. The solicitors to Mrs Linklater wrote on 8 June stating that this property was sold by her some years ago. Mrs Cook replied on 2 August as follows:-

"As Mill Lane was the sole means of access to this property probably for hundred of years I will certainly wish to claim ownership of the whole or part and look forward to hearing from you when the District Valuer has produced the valuation which may in itself need to be challenged."

10. On 14 March 2001 Bond Pearce sent completed absent owner forms to this Tribunal requesting a determination of value under section 5(3) and Schedule 2 to the 1965 Act. The Registrar, however, took the view (correctly in my judgment) that this matter ought to proceed under the reference procedure on the grounds that Mr and Mrs Cook and Mr Pullen claim ownership of the land. A letter to this effect was sent to Bond Pearce on 22 March.
11. On 1 June 2001 Bond Pearce lodged reference forms giving the claimants as Mr and Mrs Cook and Mr Pullen. They signified that the matter should be dealt with under the simplified procedure. The claimants agreed. On 7 January 2002 the parties were notified of a hearing at Yeovil on 19 March next and standard directions were given for a statement of case or claim and documents to be exchanged and lodged 28 days before the hearing with a statement of agreed facts and expert reports 14 days before the hearing. Mrs Cook sent a statement of case and claim (with supporting documents) on 15 February 2002. Mr Pullen did not lodge any documents nor, surprisingly, did Bond Pearce on behalf of the Highways Agency, despite telephone reminders by the Tribunal's staff and a faxed letter dated 15 March in reply to a letter from Bond Pearce of the same date which showed that they were still treating the reference as an absent owner application. Some documents had been sent by Bond Pearce with that application but no statement of case or expert report.
12. I made an unaccompanied inspection of Mill Lane on 18 March and held a hearing under the simplified procedure on the following day. Mrs Cook and Mr Pullen appeared in person; Miss Angela Reynolds of Bond Pearce appeared for the acquiring authority.
13. At the start of the hearing Miss Reynolds applied for an adjournment on the grounds that I ought to have all the facts before reaching my decision and should therefore have before me an expert report on behalf of the acquiring authority. Their expert will be Mr Rattue of the Taunton office of the Valuation Office Agency, who acted on the acquisition of land under the compulsory purchase order. The claimants objected to this application.
14. I had considerable sympathy with the claimants in their resistance to this application. It is another example of the unsatisfactory way which the Highways Agency and their advisers have dealt with the acquisition of Mill Lane and, in particular, the claim of Mr and Mrs Cook. Procedurally there was no merit whatever in this application. The reason I had not received evidence from the authority's expert is that Miss Reynolds, and the district valuer in advising her that his report was not required (see her letter of 15 March), had misunderstood the nature of the reference and thought that it was still an absent owner application. The requirements as to the exchange of documents and reports were clearly set out in paragraphs D, E and F of the Tribunal's letter and directions dated 7 January 2002. Paragraph G referred to the importance of these directions and emphasised that adjournments would only be granted for the most compelling reasons, such as illness. Miss Reynolds said that she did not receive the letter of 7 January, although I note that it was correctly addressed, sent by DX and had the correct reference on it. A further copy was sent on 27 February but still failed to produce a response in the form of documents or an early application for an adjournment. The Tribunal's directions were completely ignored due to error. This application for an adjournment on the day of the hearing (even though preceded by a telephone call) was wholly unacceptable, particularly when made by solicitors acting for an acquiring authority.
15. I was minded to refuse the application and proceed to a decision on Mrs Cook's representations. Before I did so, however, I considered her claim for compensation of £2,500 per acre. This figure was not supported by comparable land prices nor by an expert opinion. Furthermore, I discovered on questioning her that it related to values as at February 2002, when Mrs Cook made inquiries as to current agricultural values. Although I was told that values has changed little during the 7½ year period since the date of valuation. I had no evidence to support this view and I felt some hesitation in accepting it. I was therefore, and with great reluctance, persuaded by a lack of reliable value evidence to agree to an adjournment on terms, subsequently included in directions. Briefly, and with the agreement of the parties, I dispensed with a further hearing, allowed the Highways Agency a strictly limited period of four weeks in which to lodge an expert report (the order was in peremptory terms) and gave Mrs Cook an opportunity to reply to it. It was agreed that Mr Pullen would allow his claim to take second place to that of Mr and Mrs Cook. Following receipt of these further documents I would then make my decision.
16. Unfortunately the unsatisfactory way in which the Highways Agency have conducted this reference continued. No expert report was received from the Agency by the due date. Telephone calls to Miss Reynolds by Tribunal staff finally produced a copy of a letter from a Mr Voaden of the district valuer's office in Taunton to the Highways Agency in Exeter described as "valuation advice." It is dated after the last date for the lodging of an expert report under my directions. I do not know whether a copy of this letter was sent to Mrs Cook. It is not an expert report under rule 42(5) of the Lands Tribunal Rules 1996 as expressly directed. The valuations are made at the wrong date (5 years too early), no explanations are given for these values, which are unsupported by comparables or settlements, and it has not been prepared by the valuer (Mr Rattue) who I was told by Miss Reynolds handled the other acquisitions and had first hand knowledge of this matter. It is of no assistance to me. The Highways Agency have failed to comply with my peremptory order of 21 March 2002. I directed that they now be debarred from adducing evidence. The Agency have had two opportunities to lodge expert evidence but have failed to do so on both occasions. This is apparently due to the district valuer's continued and mistaken assumption that this is an absent owner case. This may be due to inadequate instructions from the Agency or Miss Reynolds, I do not know; the position was certainly fully explained to her at the hearing in Yeovil but has either not been passed on to the district valuer or has been misunderstood by him. The result of this unsatisfactory position is that I am left with Mrs Cook's figure of £2,500 per acre as the only evidence of value. The Lands Tribunal acts in a judicial capacity; I cannot give myself evidence nor seek evidence from other sources. Owing to the failure of the acquiring authority to adduce expert evidence, or present any case at all, I am bound to accept Mrs Cook's figure of £2,500 per acre for the land comprising Mill Lane. The parties have agreed the site areas of the various parcels to be as shown in Schedule 1 of the compulsory purchase order. It is further agreed that parcel 57a has not been acquired and is to be excluded from the assessment of compensation.
17. I determine that the market values under section 5(2) of the Land Compensation Act 1961 of the freehold interests in the following parcels of land in Mill Lane, Tintinhull, Somerset acquired under The London-Penzance Trunk Road A303 (Ilchester to South Petherton) Compulsory Purchase Order (No.FW7) as at the date of entry (4 August 1994) were:-

Parcel 57 £135

Parcel 57b £810

Parcel 57c £540

Parcel 57d £310

Parcel 57e £430

Parcel 57f £1,235

Parcel 57g £545

18. This Tribunal has no jurisdiction to decide questions of title and my decision is not a determination that Mr and Mrs Cook or Mr Pullen are entitled to all or any of the above amounts. Questions of title are matters to be agreed between the claimants and the Highway Authority or settled by the Courts.
19. This reference was heard under the simplified procedure in rule 28 of the 1996 Rules. Costs are not normally awarded but the Tribunal may award costs where it "regards the circumstances as exceptional" (rule 28(11)(b)). In my judgment, the unsatisfactory way in which the Highways Agency have conducted this reference may constitute exceptional circumstances justifying an award of costs in favour of the claimants. I make no decision on this matter but allow the claimants to make an application for their costs of the reference in a fixed sum (if they wish to do so). The claimants may lodge a written request for costs with the Tribunal, sending a copy to the Agency's solicitors, within 14 days of this decision and the Agency may reply to the Tribunal within 7 days, sending a copy to Mrs Cook.
20. This decision 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 right of appeal will come into operation.

DATED: 3 May 2002

P H Clarke FRICS

Member of the Lands Tribunal

ADDENDUM

21. I have received an application for costs from Mrs Cook in the sum of £175. No representations have been received from the Highways Agency.
22. Rule 28(11) of the Lands Tribunal Rules 1996 provides that, where a case is heard under the simplified procedure, "no award shall be made in relation to the costs of the proceedings … save that the Tribunal may make an award of costs … (b) in cases in which the Tribunal regards the circumstances as exceptional." In my judgment, the wholly inept way in which the Highways Agency and their advisers have conducted this reference (as outlined above) constitutes exceptional circumstances under rule 28(11)(b) justifying an award of costs to the first claimants. I would emphasise that the general rule remains that no award of costs is made in cases heard under the simplified procedure. This reference is a wholly exceptional case. Accordingly, I order the Highways Agency to pay to Mr and Mrs C V Cook (the first claimants) their costs of this reference in the sum of £175, such costs to be paid within 28 days of the date of this decision. These costs are payable to the first claimants as parties to this reference and payment is not dependent upon them proving title and right to the compensation determined.

DATED: 28 May 2002

P H Clarke FRICS

Member of the Lands Tribunal