England and Wales Lands Tribunal

[2003] EWLands ACQ_128_2002 (30 September 2003)

ACQ/128/2002

LANDS TRIBUNAL ACT 1949

COMPENSATION – limitation – compulsory purchase of subsoil – injurious affection – London Transport Act 1963 s 11 – held no claim under this provision – claim under Lands Clauses Consolidation Act 1845 s 63 – held acquiring authority not estopped from relying on limitation – claim dismissed

IN THE MATTER OF A NOTICE OF REFERENCE

BETWEEN BRIDGESTART PROPERTIES LIMITED Claimant

and

LONDON UNDERGROUND LIMITED Acquiring

Authority

Re: Offices and subsoil

The Hop Exchange

24 Southwark Street

London SE1 1TY

Before: The President

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

On 2 July 2003

Richard Glover instructed by Allen & Overy for the claimant

Neil Cameron instructed by Watmores for the acquiring authority

The following cases are referred to in this decision:

Hillingdon London Borough Council v ARC Ltd [1999] Ch 139

Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation [1975] AC 99

Hammersmith and City Rly Co v Brand (1869) LR 4HL 171

Hillingdon London Borough Council v ARC Ltd (No 2) [2000] RVR 283

Llanelec Precision Engineering Co Ltd v Neath Port Talbot County Borough Council [2001] RVR 36

Wiberg v Swansea City and County Council [2002] RVR 143

The following further cases were cited in argument:

Cohen v Haringey London Borough Council (1981) 42 P & CR 6

Bhattarcharjee v Blackburn with Darwen Borough Council [2002] RVR 55

Troop v Gibson [1986] 1 EGLR 1

Co-operative Wholesal Society v Chester-le-Street District Council [1998] RVR 203

Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850

BP Oil Ltd v Kent County Council [2003] EWCA Civ 798

Amalgamated Property Co v Texas Bank [1982] 1 QB 84


 


DECISION

Introduction

1. The claim in this case arises from the acquisition by the acquiring authority of land consisting of strata of subsoil beneath the claimant's premises, The Hop Exchange, 24 Southwark Street, London SE1 1TY, and the construction through that land of the Jubilee Line extension. The claimant asserts that as a result of the tunnelling operations, settlement occurred and the premises, a Grade II listed building in use as offices, suffered cracking, which had to be repaired. The claim in respect of this injurious affection is based on section 63 of the Lands Clauses Consolidation Act 1845 or alternatively on section 11 of the London Transport Act 1963. The acquiring authority deny that section 11 has any application and they say that the claim under section 63 is statute-barred, since more than six years elapsed between the date of entry and the giving of notice of reference to this Tribunal. The claimant says that the authority are estopped from relying on limitation or had waived their right to do so.
2. The claimant is a wholly owned subsidiary of Peer Group plc, the company on which notice to treat was served and which conducted negotiations with the acquiring authority. Notice of reference was originally served in the name of Peer Group. It was not suggested, however, that any significance attached to the particular identity of the claimant company

The works

3. Under the London Underground Act 1992, London Underground Ltd (LUL) were empowered to construct works, and to acquire lands and rights for that purpose, including the provision of tunnels. Two running tunnels were authorised and both of these were to run beneath the claimant's premises, which were identified as plot 85 in the Book of Reference for the Act. LUL were empowered by section 23(2)(b) of the Act to enter upon and take so much of the subsoil under the premises as they might require for the purposes of constructing the works and to give notice to treat. Notice to treat was served on 28 July 1994. It identified the land to which it related as strata of subsoil 11m in depth, the upper surface of which was between 24.3m and 24.7m beneath the adjacent roadways. Notice of entry was served the same day and on 29 July 1994 tunnelling operations for the westbound tunnel entered the land beneath the building. By 10 February 1995 the tunnelling operations for the eastbound tunnel were clear of the building. Trains carrying passengers first ran beneath the building on 24 September 1999, and on 22 December 1999 the entire Jubilee Line (Stanmore to Stratford) was open to the public.

The statutory provisions

4. Section 24 of the 1992 Act applies the Lands Clauses Consolidation Act 1845 (with certain modifications, which are not relevant for present purposes). The primary basis for the claim for compensation for injurious affection is section 63 of the 1845 Act. The right to enter the land following the service of notice to treat was contained in section 14 of the London Transport Act 1966 (which was applied in the case of compulsory acquisitions under the 1992 Act by section 28 of that Act). Section 14 of the 1966 Act enabled LUL to enter without having first paid, or paid into court, an amount in respect of compensation (as required by sections 84 and 85 of the 1845 Act). Section 1 of the Land Compensation Act 1961 provides for the reference to the Lands Tribunal of any question of disputed compensation.
5. Under section 20 of the 1992 Act, section 11 of the London Transport Act 1963 was incorporated. That section makes provision, in terms that I will consider later, for "compensation for damage by working", as the sidenote puts it. Although the claimant had not previously put their claim on the basis of the provision, in the course of his submissions Mr Richard Glover sought to rely upon it as an alternative basis to section 63. For the acquiring authority Mr Neil Cameron said that no objection would be raised to an amendment to this effect.

Limitation

6. Section 9(1) of the Limitation Act 1980 provides that "An action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date on which the cause of action accrued." In Hillingdon LBC v ARC Ltd [1999] Ch 139 it was held that a reference to the Lands Tribunal of a question of disputed compensation is to be regarded as an "action to recover" that compensation within the meaning of section 9(1) (see Potter LJ at para 42). While the answer to the question of when the cause of action accrues for the purpose of this provision lies in the particular statutory provisions that give rise to the right to recover compensation, the general rule is that the limitation period of six years runs from the date of entry. There is no dispute between the parties in the present case that it does so (although Mr Glover, while noting that the difference in date is of no materiality, says that, in view of the provisions of section 14 of the 1966 Act, the period may run from a month after notice of entry was given). The limitation period thus expired on 29 July 2000 (or, on Mr Glover's alternative basis, 29 August 2000).
7. The case for the claimant is that at the time when notice of reference was given (21 October 2002; the name of the claimant was revised on 12 November 2002) the acquiring authority were not able to rely on limitation. Mr Glover puts the point on the basis of both estoppel by convention and equitable estoppel or waiver. I would add that, on the construction of section 11 which I consider to be the correct one, the start of the limitation period under that provision would seem to me to be different from that under section 63. However, as I shall explain later, I do not think that section 11 helps the claimant, and I do not need, therefore, to address the limitation considerations that would have arisen under it.

Dealings between the parties

8. To establish the facts relating to the dealings between the parties Mr Glover called Robert Wilfred Couchman, director of Peer Group, and Donald Frank Sillett, senior partner of Bowden, Sillett & Partners, consulting civil and structural engineers. Mr Couchman said that he had been personally involved in the matter since October 1999 and prior to that time had been familiar with the framework but not the detail of the position. His role, and that of his predecessor, Michael Summers, was to negotiate and to secure compensation for damage to The Hop Exchange caused by the construction of the Jubilee Line Extension. The history of the negotiations was to be found in the documents that were before the Tribunal.
9. On 19 August 1994 Edward Symmons & Partners, the claimant's surveyors, sent to LUL's solicitor a completed claim form. The form, which had evidently been provided by LUL, was headed "Particulars of Claim (Subsoil)", and the endorsement said "This form should be completed (in duplicate) and lodged (within 21 days from the service of the Notice to Treat)". As completed the form identified the claimant as The Peer Group PLC, described the property and the claimant's interest, gave the number on the plan annexed to the notice to treat, and, against the words "Specify amount claimed for value of interest showing how the amount has been calculated," it said, "To be negotiated."
10. On 14 December 1994 London Transport Property wrote to Peer Group, referring to the notice to treat. The letter said:

"You are entitled to claim compensation for the open market value of the strata of subsoil and the cellar and vaults which are subject to the notice to treat and in addition compensation in respect of the reduction in value of any of your retained land. There are effectively two heads of claim which can be dealt with separately.

1. Land Taken

In the absence of the Jubilee Line Extension scheme there will be no other purchaser in the market for the subsoil and for the cellar and vaults and therefore will attract a nominal value. With regard to any claim for injurious affection I would comment as follows.

(a) Although strictly speaking any claim for damage attributable to the tunnelling works could only form part of a claim for injurious affection (except in the case of negligence) London Underground is prepared to pay compensation in respect of this item based upon the reasonable costs of rectifying proven structural damage attributable to the tunnelling activities. However no claims for settlement damage will be considered if received later than two years from the opening of the Jubilee Line Extension to the public.

No remedial works should be undertaken without first contacting London Underground Limited and agreement being reached in writing as to the extent of LUL's liability, and specification and price of the remedial works. This is on the condition that the transfer in the interest in the subsoil and cellars and vaults is dealt with expeditiously. Given that this is acceptable I would ask that claims for settlement damage be made to Mr Su Gulati, JLE London Bridge Office, Unit 5a, 39/65 London Bridge Road, London, SE1 9HH.

(b) Given that claims for settlement damage will be met separately I would not envisage your client suffering from any reduction in value of his interest due to either the construction or the subsequent use of the Jubilee Line works.

In the event that you do perceive that there is a reduction in value of your client's property then I would be grateful if you could set out full details. In the event that you agree your client's land has not been injuriously affected other than in respect of settlement damage then I would be grateful if you could also confirm this by return.

I would advise that surveyors fees in resoect of setting this claim for compensation will be paid in accordance with Rydes Scale 1991. Although it would be our intention to settle the land transfer separately from any claim for injurious affection, the Rydes Scale fee will therefore not be calculated on this separate amount."

11. Although the first paragraph of the letter referred to notice to treat having been served in relation to the subsoil, cellar and vaults, it did in fact relate to the subsoil alone (see paragraph 3 above), but nothing turns on this. The important sentences in this letter are those in the first paragraph under (a). Mr Glover's contention, on which his arguments on estoppel and waiver were founded, was that they meant that LUL would consider any claim for compensation in respect of injurious affection based on the reasonable cost of rectifying structural damage attributable to tunnelling activities, provided that the claim was made within two years of the opening of the railway, whenever that might be. Mr Cameron argued that the letter did not have this meaning.
12. On 23 March 1995 Mr Andrew McWhirter, Edward Symmons & Partners' building surveyors, wrote to Mr M L Karakashian, LUL's Senior Supervising Engineer, saying that he had been called to The Hop Exchange to inspect cracks that had recently occurred to the building. Although he said that he was "not overly concerned" about their structural significance, settlement monitoring readings carried out by LUL and an inspection by Peer Group's consulting civil and structural engineers, Bowden, Sillett & Partners, led that firm in a letter of 21 June 1995 to advise that the settlement had exacerbated original crack planes in the building. They said that further settlements were likely to occur.
13. On 27 June 1995 Mr Summers wrote to Mr Karakashian enclosing a copy of a letter from Mr Sillett, which said that settlement readings provided by LUL showed settlements ranging up to 27 mm and having the effect of exacerbating original crack planes. There was a need to continue monitoring as further settlements were likely to occur. In his reply of 11 July 1995 Mr Karakashian said that no liability was accepted with regard to the allegations of damage to the building and its cause, that he was prepared to install additional monitoring of the building, and that any remedial works and their proposed timescale would require the sanction of LUL's loss adjusters.
14. On 10 August 1995 Mr Sillett wrote to Mr Summers saying that he had walked round the building the previous day with Ray French of Cunningham Construction (LUL loss adjusters) and that "whilst it is recognised that movement has occurred as a direct result of LUL's workings it is doubtful whether early monies will be forthcoming from LUL's insurers." Mr Sillett sent a copy of the letter to Mr French, who on 17 August 1995 replied saying:

"…You appear to have, to some extent, misrepresented my comments made to you at the time of our site meeting. I indicated to you that I believed that there should not be any difficulty in establishing the nature and extent of damage which has occurred since the condition schedule was carried out. Clearly, the extent of any further damage should be a matter of fact.

On balance, any further damage which may be apparent may well be associated with the Jubilee Line Extension Works although I would ask you to understand that no admission is made in this regard…"

15. On 12 September 1995 Mr Summers sent to Mr Karakashian a copy of a further letter from Mr Sillett about the deterioration in the building. On 10 November 1995 Mr Karakashian replied saying that no liability was accepted. The letter went on:

"A defect/condition survey was carried out on the property and will be used to identify the change in condition of the building on completion of the Jubilee Line Extension Works. Meanwhile a copy of your letter has been sent to our loss adjusters."

16. Mr Karakashian sent a further letter on 15 November 1995 covering much of the same ground. It denied liability and went on:

"The fact that your building has settled some 27 mm does not mean the building is damaged. The inspection carried out by Donald Sillett identified a number of old cracks which he felt required immediate repair and it was your choice to have this done.

On completion of the Project another Defect/Condition Survey will be carried out and only then will the extent of repair or liability be identified."

17. Discussions appear then to have been broken off and not to have been resumed until July 1997. Following a meeting with Mr Summers, on 2 October 1997 Mr French wrote to him saying:

"As discussed, I shall leave you to present an initial claim statement for our consideration. Please ensure that, as far as possible, the costs are allocated to specific areas of damage that you believe were caused by the works. Please also provide copies of any technical reports prepared for you by Bowden Sillett.

Thereafter, as discussed, I would wish to liaise closely with Mike Spencer to focus on those particular areas of building where Bowden, Sillett believe that there has been structural damage caused by the Jubilee Line Extension works. If it is felt necessary to widen the areas of inspection, then this can be discussed at the time."

18. There was then an exchange of correspondence that related among other things to the need for continued monitoring, and Bowden, Sillett & Partners provided Mr French with further survey material identifying the new cracking that they said had occurred. In their letter of 31 March 1998 they said that they were currently assessing the information prior to the preparation of detailed claims and that they would furnish Mr French with further surveys as they became available. Mr French replied on 2 April 1998 saying that he would await their "further advices".
19. There then appears to have been another 18-month gap in the dealings between the parties. The railway had opened to passenger traffic on 24 September 1999, and in October 1999 Mr Couchman arranged a meeting with Mr Field of LUL and Mr French. Following this meeting he wrote to Mr Field on 15 October 1999 as follows:

"Thank you for coming in to the office to discuss the procedure for furthering our compensation claim resulting from the above project.

I confirm that I am now in contact with Bowden Sillett to produce a report which brings together the various internal and external reports that have been undertaken at the beginning of the works and throughout the completion of the works.

I am also in contact with Powys Hughes who will be assisting us with other various heads of claims resulting from the works.

Once we have these reports in hand I will send an outlined claim to Ray French of Cunningham & Lindsay at which point it would be useful to have another meeting which it is likely would also include the engineers and the valuers. Once again thank you very much for your kind assistance in this matter."

20. Apart from a further letter of 11 November 1999 from Mr Couchman to Mr Field, in which Mr Couchman said that he hoped to get reports to Mr Field by the end of November from Bowden Sillett and Powis Hughes, there was apparently no further communication until 4 July 2000, when, following a telephone conversation on that day, Mr Couchman sent Mr Field a copy of an outline cost estimate for repair work at The Hop Exchange prepared by a firm called Northcroft. Mr Field, in a letter of 26 July 2000, said that he found the estimate to be of little value, with imprecise statements about what had been assumed and without any back-up information. It is to be noted that a letter from Mr Sillett to Northcroft of 17 November 2000 said that Bowden, Sillett & Partners carried out condition surveys from 1997 to 1998, so that it appears there had been no later report to send to LUL. In that letter Mr Sillett went on to say that his firm assessed the LUL contribution to the costs in the Northcroft estimate to be in the order of 50-60%, and Mr Couchman sent a copy of the letter to LUL. In a letter of 24 January 2001 LUL said that, as the Northcroft cost estimate failed to identify any cause of the defects, LUL rejected the conclusion that they should pay 50-60% of the remedial costs.
21. Mr Couchman and Mr French had a meeting on 26 February 2001, and on 11 May 2001 Mr French wrote to Mr Couchman at length. He said amongst other things:

"…As indicated to you at our meeting, we previously requested but have not received any technical reports from Bowden Sillett which provide evidence that damage to the building arises out of the Jubilee Line Extension works. Your claim appears to rely on the Bowden Sillett documents which detail the advancement of pre-existing deterioration…

Even if it could be reasonably shown that pre-existing defects had worsened as a result of the Jubilee Line Extension works, the question remains as to whether such additional damage generates any additional cost over and above that which would have been required to deal with the existing defects…

In summary, we do not believe that the evidence supports the view of yourselves and Bowden Sillett that the further deterioration in the building since the original defect schedules were produced has arisen due to the Jubilee Line Extension works. We will be pleased to consider any technical evidence that you/Bowden Sillett can produce which might demonstrate that there has been damage to the building due to the Jubilee Line extension works."

22. Allen & Overy were appointed to act for Peer Group in May 2001, and on 16 October 2001 they wrote to Cunningham and Lindsay enclosing a new report from Bowden Sillett that concluded that the degree of deterioration in the building was not consistent with pre-existing deterioration, but showed substantially greater deterioration. Mr French replied on 3 December 2001 saying that there was a lack of evidence to support the claim. The letter concluded by saying that, in the absence of full information in support of any prospective claim that Peer Group might wish to raise, Cunningham and Lindsay considered that a further meeting would not take matters forward. Mr French wrote again in similar terms on 4 January 2002. That letter concluded: "We remain prepared to further consider any properly presented claim." Further letters from Allen & Overy between 13 May 2002 and 16 September 2002, however, met with no response, and notice of reference was given on 21 October 2002. Mr French wrote to Allen & Overy on 22 October 2002 stating that LUL had no liability to Peer Group and adding: "Further, it is our understanding that Peer Group's claim for compensation is now statute barred."
23. In his evidence Mr Sillett said that he had been appointed surveyor/engineer to the majority of building owners within the London Bridge area for the duration of the Jubilee Line Extension works. An excellent working relationship was established with LUL's engineers, and their attitude to the The Hop Exchange was, initially at least, no different from the one they adopted with other buildings. The exchange of letters with Mr French of 10 and 17 August 1995 showed what the approach was. Regular meetings were held with LUL. When, after the meeting in October 1999, LUL requested reports to support the claim, Mr Sillett said that it was clear to him that the purpose of the request was to give LUL the opportunity to study in greater detail the quantum of the claim. It was only after the Northcroft reports had been produced that it appeared that their position on causation might be more than just the interim protection of their position. He felt that by insisting on proof of causation, LUL were adopting a different approach from the one they had adopted for other buildings. Nevertheless he was confident an agreed settlement could be reached, and at no time did LUL or their loss adjusters talk of there being any critical timescale in relation to the claim for compensation. In this respect there was no difference from his experience with the other property owners he was representing, and he understood that one of these, the building owners of New City Court, Thomas Street, had finally reached a settlement with LUL in mid-2002.
24. Mr Couchman in his evidence said that the claimant had been negotiating in good faith with LUL over many months and years. The claim was realistic, and the claimant had acted reasonably at all times in continuing the dialogue.

Section 11 of the 1963 Act

25. Section 20 of the 1992 Act, as I have said, incorporates with modifications section 11 of the 1963 Act. Section 11 has the sidenote "Compensation for damage by working", and as modified by the 1992 Act it provides:

"(1) In addition to the provisions of the Acts incorporated with this Act with respect to compensation for lands taken or injuriously affected, the Board shall make compensation to the owner, lessee and occupier of any land, house or building which shall be injuriously affected by reason of the working of the underground railways (including the working of lifts, escalators and any other works in connection with the underground railways) notwithstanding that no part of the property of such owner, lessee or occupier is taken by the Board:

Provided that all claims for compensation under this section shall be made within two years from the date of the opening for public traffic of that portion of the works which is alleged to cause such injurious affection and, failing agreement, shall be settled by arbitration."

26. Section 2(1) of the 1992 Act defines "the underground railways" to mean "such portions of Works Nos 1A, 1B, 2 and 3A and any necessary works and conveniences connected therewith as are constructed in tunnel." The railway underneath the Hop Exchange is part of Work No 2, as identified in Schedule 1 to the Act. There was disagreement between the parties as to what the words "the working of the works" in section 11 meant. Mr Glover contended that they encompassed both the construction and operation of the railway. Mr Cameron submitted that they meant only the operation of the railway. Construing a local Act such as this often presents great difficulties (see Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation [1975] AC 99 per Lord Wilberforce at 129 B-C) and a reference to other provisions in the same Act may not always assist the task of understanding the provision in question, but it seems clear to me that Mr Cameron is right when regard is had to other provisions of the 1963 Act. There are two aspects.
27. Firstly, the Act uses a variety of terms to describe the construction of the works. Thus section 5 empowers the Board to "make and maintain the works"; section 6 refers to "execution of … the works"; section 7 refers to works that "shall be constructed", as does section 8(1); and section 8 is stated to apply "to the construction of Work No 1". On the other hand a distinction is clearly drawn between construction and working. Thus in section 10, which deals with the use of electrical power, subsection (2) requires the Board to "take all reasonable precautions in constructing, placing and maintaining their electric lines and circuits and other works of all descriptions and also in working the said works" so as not to cause damage; and subsection (5) refer to "the construction, erection, maintaining and working of such wires, line and apparatus." "Working" here quite evidently means operation and not construction, and when it appears in the following section, section 11, it is unlikely that it would mean both operation and construction as well.
28. The second aspect is the relationship between section 11 and section 68 of the 1845 Act. Section 68 is incorporated with the 1963 Act. As interpreted by the courts that section confers an entitlement to compensation in respect of the construction but not the operation of the works: see Hammersmith and City Rly Co v Brand (1869) LR 4 HL 171. There would thus be no need in the local Act for a further provision conferring the same right to compensation in respect of construction of the works as in section 68; but, if the section had nevertheless been intended to do this, one would have expected words making clear that section 68 still continued to apply. (It is to be noted that section 14(7) does this in relation to the provision relating to the underpinning of houses near the work). Section 11 was inserted in my view, to supplement section 68, but not to duplicate it in any respect, by providing for compensation for damage caused by the operation of the railway. It was not intended, however, to create a continuing obligation, and the proviso, requiring any claim to be submitted within two years of the opening of the railway, was inserted to ensure that it did not do so.
29. The claim in this case does not relate to damage caused by the operation of the railway and thus section 11 is of no help to the claimant. There is also a further reason why it is of no assistance here. The entitlement to compensation is conferred on an owner lessee or occupier "notwithstanding that no part of the property of such owner, lessee or occupier is taken by the Board." Mr Glover contended that the words "notwithstanding that" should be read as meaning "… whether or not any part of the property … is taken …". I do not agree. The meaning of "notwithstanding that" is, in my view, "despite the fact that". This makes clear that the right to compensation that the section gives in terms does not apply to an owner, lessee or occupier from whom land is acquired under the Act.
30. The claimant's claim can only be based, therefore, on section 63 of the 1845 Act. The entitlement to compensation arises in respect of the taking part of the claimant's land, and the measure of compensation for injurious affection is the reduction in value of the land retained (in particular The Hop Exchange) by reason of the acquisition of the substrata for the purpose of constructing the underground railway.

Estoppel and waiver

31. Mr Glover said that the letter of 14 December 1994 was a clear indication that LUL would consider claims for settlement damage if those claims were received within two years of the opening of the Jubilee Line Extension to the public. The natural implication of the letter, he submitted, was that the consideration of such claims would not exclude their being subsequently referred to the Lands Tribunal if a negotiated settlement proved impossible. LUL were saying that claims received within the two-year period would be treated as both valid and enforceable. The letter of 14 December 1994 and the subsequent actions of the parties established the convention between them to this effect. That convention bound the parties until one party communicated to the other that it should no longer apply. It might be that LUL could have brought the convention to an end by informing the claimant that they would treat the claim as statute-barred unless a reference to the Tribunal were made within a specified period, but they did not do so. The same facts established waiver or equitable estoppel.
32. The claimant's case on estoppel is thus founded on the letter of 14 December 1994. I do not consider that it has the meaning that Mr Glover attributed to it or that there is any evidence that the parties both treated it as having that meaning. In saying that LUL would be prepared to pay compensation in respect of injurious affection based on the reasonable cost of rectifying structural damage attributable to tunnelling activities, it appears that the writer may have thought that this went beyond LUL's statutory liability. Whether or not this assumption was correct, the letter went on to say that "… no claims for settlement damage will be considered if received later than two years from the opening of the Jubilee Line Extension to the public". Contrary to Mr Glover's submissions, however, this was not saying that a claim would be considered provided that it was made within two years of the opening of the railway whenever that might be. It was saying that a claim would not be considered if made after that period. Thus the basis on which Mr Glover seeks to found his estoppel argument does not, in my judgment, exist.
33. The wording used in the letter echoed the proviso in section 11, which was "… that all claims for compensation under this section shall be made within two years from the date of the opening for public traffic of that portion of the works which is alleged to cause such injurious affection and, failing agreement, shall be settled by arbitration." Since section 11, as I have concluded, confers a right to compensation in respect of the operation of the railway, it is clear that no cause of action could accrue on a date earlier than that on which the relevant section of the railway became operational. The compensation referred to in the letter of 14 December 1994, on the other hand, related to settlement damage caused by tunnelling activities. There was no reason why any claim on the basis referred to should have to be postponed until the railway became operational. Nor does it appear that the parties considered that it would have to be postponed. It is true that Mr Karakashian in a letter of 15 November 1995 said, "on completion of the Project another Defect/Condition Survey will be carried out and only then will the extent of repair or liability be identified." But on 18 December 1997 Mr Field, the Senior Supervising Engineer wrote to Peer Group saying, "I wish to advise that settlement monitoring of your property shows that movement has ceased and as a result it is intended to discontinue monitoring of [The Hop Exchange] from January 1998." On 13 January 1998 Mr Summers of Peer Group wrote asking that the period of monitoring should be extended, but Mr Field in his reply of 2 February 1998 refused, reiterating that he considered that the property had stabilised. The correspondence shows that Peer Group were seeking to advance a claim for settlement damage from March 1995 onwards. In these circumstances I find it impossible to conclude, as the claimant suggests that I should conclude, that the parties were in agreement that the time for making a claim should begin with the opening of the railway.
34. Although the claimant's case on estoppel on the and waiver was expressly founded on the letter of 14 December 1994, I have also considered whether the continuation, after six years had elapsed from that date, of correspondence and meetings between the parties might also be relied on. I do not think that it can. The mere continuation of negotiations after the expiry of the limitation period, and even an indication of the authority's willingness to pay compensation, will not be sufficient to found an estoppel because such conduct is not inconsistent with reliance on limitation: see Hillingdon London Borough Council v ARC Ltd (No 2) [2000] RVR 283; Llanelec Precision Engineering Co Ltd v Neath Port Talbot CBC [2001] RVR 36; Wiberg v Swansea City and County Council [2002] RVR 143. At no time was there an acceptance on the part of LUL or their loss adjusters that the claimant had a valid claim for compensation for injurious affection. Their position was that no evidence had been produced to show that any of the physical deterioration in the condition of The Hop Exchange was due to the carrying out of the Jubilee Line Extension works. The last sentence in Mr French's letter of 4 January 2002 ("We remain prepared to further consider any properly presented claim.") was doing no more, in my view, than stating the approach that LUL had shown itself ready to apply through the continuation of correspondence and meetings after the expiry of the limitation period. There was not on its part any acceptance that there was a valid claim or that it would not rely on limitation.
35. The preliminary issue must, therefore, be decided in the acquiring authority's favour. The claim is statute-barred and must be dismissed. The parties are now invited to make submissions on costs, and a letter on this accompanies this decision. The decision will not take effect until the question of costs has been determined.

Dated 30 September 2003

George Bartlett QC, President

ADDENDUM ON COSTS

36. The acquiring authority ask for their costs and submit a schedule for summary assessment. The claimant does not oppose the application but asks for detailed assessment. It appears to me appropriate that the costs should be the subject of detailed assessment, and accordingly I order that the claimant must pay the acquiring authority's costs of the reference, such costs if not agreed to be the subject of detailed assessment by the Registrar on the standard basis.

Dated 17 October 2003

George Bartlett QC, President