UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2010] UKUT 120 (LC)

LT Case Number: ACQ/204/2009

 

                            TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

                                                                             

                                                                             

                                 IN THE MATTER OF A NOTICE OF REFERENCE

 

COMPENSATION – compulsory purchase – open market value of restaurant – analysis of comparable rentals and yields – analysis of comparable leasehold sale – cost of repairs and refurbishment – compensation assessed at £55,000

 

 

BETWEEN                                              CAM VAN LY                                            Claimant

 

                                                                           and

 

                                                   LIVERPOOL CITY COUNCIL                             Acquiring

                                                                                                                                      Authority

 

                                                           Re: 8/8a Nelson Street

                                                                  Liverpool

                                                                  L1 5DW

 

 

                                                         Before: A J Trott FRICS

 

 

                          Sitting at the Employment Tribunal, 1^st Floor, Cunard Building,

                                                      Pier Head, Liverpool L3 1TS

                                                                on 20 April 2010

 

 

 

 

 

 

 

Mr David Blackburn of JST Lawyers for the claimant

Mr Matthew Collings of Eversheds LLP for the acquiring authority

 

 

The following case is referred to in this decision:

 

Richard Parsons v Bristol City Council [2007] RVR 341

 

 

The following cases were referred to in argument:

 

Uglow v Uglow [2004] EWCA Civ 987

Taylor Fashions Limited v Liverpool Victoria Friendly Society [1979] EWHC Ch 1

Stebbing v Metropolitan Board of Works (1870) LR 6 QB 37

Corrie v MacDermott [1914] AC 1056

Abbey Homesteads (Developments) Limited v Northampton County Council (1986) 53 P & CR 1

 

 

                                                                    DECISION

Introduction

1.           This is a reference to determine the compensation payable to the claimant, Mr Cam Van Ly, following the compulsory acquisition of 8/8a Nelson Street, Liverpool L1 5DW (the reference land).  The acquiring authority is Liverpool City Council.

2.           On 11 October 2004 the acquiring authority made the Liverpool City Council (2-8/8a Nelson Street, 128-134 Duke Street, 1-11 Cummings Street, 1a, 3a, 5a Cornwallis Street) Compulsory Purchase Order 2004.  This was confirmed by the Secretary of State on 28 July 2005.  On 22 June 2007 the acquiring authority executed a general vesting declaration which vested the reference land in the acquiring authority on 2 August 2007, which is the valuation date for the purposes of the reference. 

3.           The only issue in dispute is the market value of the claimant’s (mainly) leasehold interest in the reference land.  The claimant says this value is £205,000 while the acquiring authority says it is £35,000. 

4.           Mr David Blackburn of JST Lawyers appeared for the claimant and called Mr Gareth Kreike MRICS, senior partner of Longden and Cook, Chartered Surveyors of Manchester, as an expert valuation witness.  Mr Matthew Collings of Eversheds LLP appeared for the acquiring authority and called Mr Andrew Gerald Massie MRICS, a partner in Keppie Massie, Chartered Surveyors of Liverpool, as an expert valuation witness.  The reference was heard under the simplified procedure.  I made an unaccompanied site visit to the reference property and relevant comparables on 19 April 2010 and an accompanied inspection of the interior of the reference property on 21 April 2010. 

Facts

5.           The reference land is located approximately half a mile south of Liverpool city centre at the edge of the Rope Walks area, a short distance to the west of the Anglican Cathedral and in the area known as Chinatown.  The building on the reference land (which has not yet been demolished) comprises an infill development between the property formerly known as the Scandinavian Hotel and the main Victorian style terrace along the west side of Nelson Street.  It dates in part from the late 1920s/early 1930s and in part from the 1950s.  At the valuation date the property was known as the Golden Yuen Restaurant, a part single storey (to the north) and part two-storey brick building with painted and rendered finishes.  There are two flat roofs at different levels.  The building is enclosed on three sides by neighbouring properties and gains access via three doorways from the Nelson Street pavement.  All mains services are available.  

6.           Internally there is a spine wall separating the two parts of the building which are at different levels and connected by stairs.  The accommodation previously comprised a restaurant, preparation room, kitchen and female toilets on the ground floor; private dining/function suite, toilets and a bedroom on the first floor and storerooms, a bedroom and a bathroom and toilets in the basement.

7.           The claimant purchased the property in February 2003.  The completion statement shows that he paid a total of £60,000 comprising £18,000 for the property, £35,000 for the goodwill of the existing business and £7,000 for fixtures and fittings.  At the time of purchase the property was subject to a three year sublease at a rent of £14,300 per annum expiring in July 2004.  Upon expiry of the lease the claimant began to refurbish the property for his own use as a restaurant.  Plans produced at that time for the claimant show that it was proposed to reconfigure the accommodation to provide a restaurant (including an overspill/function area) and a disabled toilet on the ground floor with a kitchen, cold room, freezer room, storage rooms and male and female toilets in the basement.  No use was proposed for the first floor. 

8.           The experts agree that the net internal area of the proposed new layout (excluding the first floor) is 2,729 sq ft.  They also agree that the highest market value results from the prospective refurbishment and reconfiguration of the restaurant rather than the reinstatement of the layout that existed as at the valuation date.  No value has been attributed by either expert to the first floor accommodation. 

9.           The claimant’s ownership of the reference land is registered under two titles.  The first is for a small area of freehold land (of which only the ground floor is included in the title) at the north east of the site.  The second is a good leasehold title in respect of “part of 8 and 8a Nelson Street”.  This title is mainly comprised of two leasehold interests; a 99 year lease from 4 February 1928 and a 75 year lease from 8 February 1956.  However, it also incorporates other land which the parties agree enjoys a good leasehold title of unknown origin.  It is not known what covenants apply to this part of the property. 

10.        The following comparable rental evidence has been agreed:

(i)     20 Nelson Street:   Ground floor restaurant with storage and ancillary accommodation on first floor and basement.  20 year lease from 1 November 2001 with five yearly rent reviews.  Rent reviewed to £22,500 per annum from 1 November 2006.  This represents £14 per sq ft for the ground floor restaurant and £7 per sq ft for the ground floor kitchen. 

(ii)    46-48 Nelson Street:   Ground and first floor restaurant with ancillary and storage accommodation.  Let from 1 July 1985 until 24 April 2027 with five yearly rent reviews.  Rent reviewed to £22,000 per annum from 1 July 2005.  This represents £12 per sq ft for the ground floor restaurant and £6 per sq ft for the ground floor kitchen.

(iii)   48 Duke Street:      Ground and first floor restaurant with a basement kitchen and ancillary accommodation.  50 year lease from 1 June 1980 with five yearly rent reviews.  Rent reviewed to £29,500 per annum from 1 June 2005.  This represents £14 per sq ft for the ground floor restaurant and £5 per sq ft for the basement kitchen.

Based upon these comparables the two experts reached similar conclusions about the full rental value of the reference land following refurbishment and reconfiguration.  Mr Kreike said that the open market value was £27,764 per annum while Mr Massie said it was £27,500 per annum (rounded down from £27,600 per annum). 

Issues

11.        The dispute between the parties is about the calculation of the open market value of the reference land.  The main areas of difference are:

(i)     The appropriate yield to capitalise the full rental value of the property; the claimant says this should be 7% and the acquiring authority 10%.  (While acknowledging that leasehold interests are conventionally valued on a dual rate years’ purchase basis, both experts say that a single rate years’ purchase is used in the market).

(ii)    The analysis of the leasehold sale of a comparable property at 46/48 Nelson Street which was sold for £120,000 in March 2008. 

(iii)   The analysis of the freehold sale of a comparable property at 9/13 Berry Street which was sold for £900,000 in September 2007.

(iv)    The cost of repairing and refurbishing the existing building.

(v)     The effect on value of (a) the unknown leasehold terms upon which part of the reference land is held, and (b) the presence in both the 1928 and 1956 leases of a qualified covenant against the sale of intoxicating liquors.

The case for the claimant

12.        Mr Kreike produced two valuations.  His adopted valuation of £205,000 was based upon the sale of the leasehold interest in 46/48 Nelson Street in March 2008 for £120,000.  The rent payable at that date was £22,000 per annum which had been fixed at review in July 2005.  The next rent review was due in 2010.  Mr Kreike made three points about this transaction.  Firstly, according to the solicitor who acted for the purchaser, the purchase price was solely in respect of the leasehold interest and included nothing for the purchase of goodwill or fixtures and fittings.  Secondly, the purchaser, like the claimant in this reference, intended to reconfigure and refurbish the restaurant.  These works involved structural alterations requiring the consent of the landlord.  Thirdly, the leasehold interest expired in April 2027, a similar expiry date to the leasehold interests in the reference land. 

13.        An analysis of this comparable would therefore provide direct evidence of the capital value of a restaurant that was to be refurbished and reconfigured.  Since the reference land was let at a peppercorn Mr Kreike capitalised the rent passing at 46/48 Nelson Street and then added the purchase price of £120,000.  Using a yield of 7% this produced a total capital value of £347,480.  Mr Kreike calculated that this capital value represented £75.54 per sq ft, based upon an area for 46/48 Nelson Street of 4,600 sq ft.  He then applied this rate to the agreed area of the reference land of 2,729 sq ft to give a rounded open market value of £205,000. 

14.        Mr Kreike’s second valuation was, in effect, a residual valuation.  He capitalised the estimated full rental value of £27,764 per annum for 22 years at 7% to give a gross development value of £307,068.  At the hearing Mr Kreike accepted that it was more appropriate to capitalise the full rental value for the shorter period of 20 years (the expiry date of the 1928 lease) and he revised the gross development value to £294,132.  He then deducted building costs from this amount which he took at £50 per sq ft, having been advised by Mr Ly that this was going to be the cost of the re-fit, but allowing £20,000 in respect of works already done by Mr Ly by the valuation date. He made deductions for finance and other costs (but not developers risk and profit) to give a total cost of £125,732.  This gave a residual capital value of £168,400 which Mr Kreike rounded to £170,000. 

15.        At the hearing Mr Kreike produced brief details of auction sales of leisure properties in 2007 in the north west of England.  He relied upon five of these transactions to support his chosen yield of 7%.  Two of the comparables were in Liverpool, one in the suburb of Childwall and the other in Bold Street, a short distance from the reference land.  All of the comparables were freehold investment sales and Mr Kreike believed that an owner-occupier of a leisure property would generally pay more than an investor and he described the market in 2007 as being “extremely strong”.  He said that there would be a “modest difference” between freehold and leasehold yields.  In response to questions from the Tribunal Mr Kreike said that he did not think the purchaser of 9/13 Berry Street, which was Mr Massie’s main yield comparable, would have attached any value to the unlet office accommodation on the upper floors.  In his opinion the purchaser would have based his successful bid at auction of £900,000 upon the passing rent of £62,000 per annum.  This showed a yield of 6.9%. 

16.        Mr Blackburn referred to recent correspondence from the Land Registry which stated that:

 “…following a survey of the property and lengthy and protracted correspondence the extent of the [good leasehold title to the reference land] was concluded with all the parties concerned.”

These parties included Mr Ly’s predecessor in title, Mr Chow.  Mr Blackburn submitted that in the light of this evidence the fact that part of the good leasehold title was of unknown origin would not be a disincentive to a prospective purchaser. 

17.        Both the 1928 and the 1956 leases contained a covenant that the lessee:

 “…will not without the consent in writing of the [City of Liverpool] use… any part of the demised premises… for the sale of intoxicating liquors to be drunk or consumed on or off the premises.” 

Mr Blackburn noted that this was a qualified rather than an absolute restriction and that it did not apply to the area of freehold land owned by the claimant.  He referred to correspondence in 2000 and 2001 in which Mr Chow sought confirmation from the City Council that the council had, as landlord, given its consent to release these restrictions when he purchased the property in May 1981.  On 30 November 2000 Sandra White of the council wrote that:

“Our records show that terms were agreed for the user clause to be relaxed in return for a fine of £500.  This would normally have been formalised by a deed of variation but as previously mentioned I cannot find a copy of this.”

Nor did the council’s successor in title have any record of such a waiver of the alcohol restriction having taken place.

18.        Mr Blackburn submitted that the correspondence produced in evidence supported the view that Mr Chow had paid £500 to release the covenants and that, in any event, it was sufficient to estop the landlord, under the principle of proprietary estoppel, from enforcing the prohibition against the sale of alcohol.  It would be unconscionable after such a long period of time for the landlord to try and enforce the covenants against Mr Ly.  He submitted that the restriction did not affect the value of the reference land. 

The case for the acquiring authority

19.        Mr Massie adopted a full rental value of £27,500 per annum for the refurbished and reconfigured property which he capitalised at 10% over 20 years to give a gross development value of £235,000 (rounded).  From this he deducted refurbishment costs of £202,500 to leave a residual value of £32,500 which he rounded up to £35,000. 

20.        Mr Massie did not undertake a second valuation based, as Mr Kreike’s was, upon a direct comparison with the capital sale of the leasehold interest in 46/48 Nelson Street in March 2008.  His firm had researched the background to that transaction by contacting the purchaser, Mr Hui, who had confirmed by email that the purchase price of £120,000 included the purchase of the goodwill of the existing business and its fixtures and fittings.  There was, however, no breakdown of the purchase price between these elements.  Mr Massie considered that the premium paid did not represent good evidence of the value of the leasehold interest. 

21.        The acquiring authority’s evidence of yields was derived from a single transaction; the freehold sale at auction in September 2007 of 9/13 Berry Street, a property located a short distance to the north of the reference land.  The property was let on a 25 year occupational lease of the ground and first floors to a Chinese restaurant operator known as Mei Mei Liverpool Limited.  The initial rent was £62,000 per annum with a review in 2007.  This rent review was agreed after the date of sale at £75,000 per annum.  The second and third floor accommodation was vacant at the time of the sale.  Mr Massie attributed a “modest” rental value of £4 per sq ft to this accommodation to give a rounded total of £15,000 per annum.  His estimated full rental value was therefore £90,000 per annum.  He said that this showed a yield, allowing for costs, of 9.5%.  Mr Massie then adjusted this yield in comparison with the reference land for location   (+ 0.5%), size (- 2%), leasehold compared to freehold (+ 2%), giving an adjusted yield of 10%.

22.        The costs of repair and refurbishment used by Mr Massie were derived from a building survey condition report that was prepared by his colleague Mr Paul Jeffries FRICS following an inspection of the reference land on 23 February 2010.  That report identified the budget cost of the works required to bring the subject property into an acceptable state of repair to comply with the repairing covenants of the 1928 and 1956 leases, namely “to keep in a good state of repair”.  In addition it identified a schedule of budget costs for refurbishing and reconfiguring the reference property as a restaurant in accordance with Mr Ly’s proposals.  All costs were expressed as August 2007 estimates based upon RICS Building Costs Information Service data and excluded VAT and professional fees.  Mr Jeffries did not inspect the property at the valuation date and his estimates were based upon a comparison of the condition of the property in 2010 with its condition as shown in photographs taken in 2005.

23.        The total cost of refurbishment and reconfiguration as at the valuation date was £282,500, including the costs of repairs to comply with the lease terms.  Mr Massie deducted £80,000 from this figure, being the cost of fitting out the kitchen.  The tenant would be expected to bear such costs and would expect a rent-free period to allow for the time he could not enjoy beneficial occupation of the property while the fit-out works were being undertaken.  However Mr Massie did not make any such adjustment in order “to take the most generous position possible” for the claimant.  In the same vein he did not make any deduction for finance costs or for risk and profit. 

24.        Mr Massie said that the existence of an area of land within the good leasehold title which did not fall within either the 1928 or 1956 leases was a factor that would adversely affect the ability of a purchaser to obtain funding and would act as a disincentive that should be reflected in the assessment of compensation. 

25.        Mr Collings submitted that the dilapidated condition of the reference land and the terms of the tenant’s repairing obligations under the leases should be taken into account when assessing the compensation; see Richard Parsons v Bristol City Council [2007] RVR 341.  He also argued that the correspondence produced in evidence by the claimant that gave the historical background to discussions about the possible release of the covenant against the sale and consumption of alcohol actually gave weight to the acquiring authority’s contention that the restriction had not been lifted.  Nothing had been concluded between the parties and there was no evidence that the landlord had waived the covenant.  Nor was there any evidence that the doctrine of proprietary estoppel would apply.  Mr Massie said that the existence of the covenant against the sale and consumption of alcohol would be a “very substantial disincentive” to a purchaser because a funder would not make any loan that was only secured against the property.  A purchaser would therefore discount his offer “very substantially”.  However he had not made any direct adjustment to his valuation because of the very low level of value (£35,000) that he had determined.  In these circumstances a deduction was not merited. 

Conclusions

26.        I deal firstly with Mr Kreike’s adopted valuation that was based upon a direct capital value comparison between the reference land and the sale of 46/48 Nelson Street in March 2008.  That property has advantages as a comparable; it is close to, and in the same street as, the reference land.  The sale was a leasehold interest of approximately the same duration as those under which the claimant held the reference land.  The property was used as a Chinese restaurant and was purchased with a view to refurbishment and alteration.  But there are two difficulties with the transaction.  Firstly, unlike the reference land, 46/48 Nelson Street was let at a full rental value, subject to review, and not at a peppercorn.  Secondly, there is uncertainty about the analysis of the purchase price of £120,000.  The claimant says that this was paid just for the leasehold interest while the acquiring authority says that it also included (unspecified) amounts for goodwill and fixtures and fittings.  Both parties have produced email correspondence to support their view; the claimant from the solicitor acting for the purchaser and the acquiring authority from the purchaser himself.  In favour of the claimant is the fact that the Proprietorship Register records that the price stated to have been paid for title absolute was £120,000. 

27.        I do not think that this evidence is conclusive.  46/48 Nelson Street was let on a lease with a five yearly review pattern, the next review being due in July 2010.  While there may have been a small profit rent at the date the property was sold (although Mr Kreike made no such assumption in his analysis of the transaction), this would not have justified a purchase price of £120,000.  Mr Kreike said that the price reflected key money, namely a payment made by the purchaser in order to trade from this location.  Mr Massie was very surprised by this proposition and said that he had never known key money to be paid for any lease in this area.  Key money payments might be paid in respect of shops in prime locations and might amount to one or even two times rental value.  Mr Kreike’s suggestion that there had been a key money payment for a restaurant in Nelson Street amounting to some five times its full rental value was inconceivable.  I agree.  There was no evidence of key money payments having been made for properties in the locality and no reason why there should be, given the number of restaurants and vacant properties in the area.  In the absence of key money and a profit rental of sufficient size or duration to justify the price of £120,000 I conclude that this figure probably did include payment of an unknown amount in respect of goodwill and fixtures and fittings.  In the absence of evidence about the breakdown of the purchase price I place no weight on this sale as a comparable.

28.        It is therefore necessary to value the reference land by capitalising the full rental value of the property when repaired, refurbished and reconfigured and then deducting the cost of the works.  The experts are very close in their estimate of the full rental value and I have adopted Mr Massie’s figure, before rounding, of £27,600 per annum.  But there is a significant difference between the experts about the yield that should be adopted.  Mr Kreike argues for 7% and Mr Massie for 10%.  Until the day of the hearing Mr Kreike had produced no evidence to support his figure.  On that day he submitted an EGi printout of all auction sales of leisure properties in the north west of England during 2007.  That produced 23 results of which Mr Kreike relied on five.  These were all freehold investment sales.  Only two of the properties were located in Liverpool, the remainder being in Carlisle, Blackpool and Knutsford.  I find those three comparables to be of no assistance.  Of the two comparables in Liverpool, one was located in the suburb of Childwall.  There were no details of the size of this property but it comprised a ground floor restaurant with offices on the first floor.  It was let on a 25 year FRI lease with five yearly rent reviews from November 2002.  The next review was in November 2007 and at the time of the sale in March 2007 the auction particulars said that there was “an expected increase in the passing rent”.  The property sold at an initial yield of 4.5% but this reflected the reversionary nature of the investment.  The location of this property is different to that of the reference land and, given the lack of any detailed analysis of the transaction, I find it to be of no assistance.

29.        The second comparable in Liverpool, and one to which I have had regard, was the sale of a property at 69/69A Bold Street comprising a ground floor restaurant with two floors of self contained offices above.  The restaurant, which is smaller than that at the reference land (1,860 sq ft compared to 2,729 sq ft), was let on a 12 year FRI lease from November 2003 at a current rent of £28,000 per annum, increasing by £500 increments in 2008, 2009 and 2010.  The offices were let on a 10 year FRI lease from December 2000 at a current rent of £15,000 per annum (£8.20 per sq ft).  The initial freehold yield, based upon the current rents, was 6.5%.  Allowing for the fixed increases in rent, and assuming no reversionary value in the office rent receivable, gives a revised yield of 6.75%.  Bold Street is close to Nelson Street but is a more established retail/leisure area and different in character.  I consider that an upward adjustment of 0.5% in the yield is appropriate to reflect this difference in location.  I accept Mr Massie’s adjustment of 2% to reflect the difference between freehold and (single rate) leasehold yields.  I therefore increase the yield at Bold Street by 2.5% to 9.25% for use as a comparable when valuing the reference land. 

30.        Mr Massie relies upon the freehold investment sale of 9/13 Berry Street by auction in September 2007 for £900,000.  In terms of the rent payable at the time of auction this represents an initial yield of 6.9%.  The auction particulars state that “the landlord is due to serve notice for the June 2007 rent review at £75,000 per annum” and Mr Massie says in his report that “the revised rent was agreed after the date of sale and increased to £75,000 per annum”.  The yield allowing for the increased rent is 8.3%.  Mr Massie attributes £4 per sq ft to the vacant office space which he says is a modest figure.  At the hearing he said that an alternative approach would have been to take a higher rent but to allow a void period for letting the accommodation.  While I consider that Mr Kreike has been too cautious in not placing any value on the office accommodation I am not persuaded that an investor would attribute one sixth of the property’s value to the vacant offices.  In my opinion a purchaser would have allowed a maximum rental value for the whole property of £82,500 per annum at the time of the auction giving a yield of 9.2%.  I have accepted Mr Massie’s 2% yield adjustment to reflect the difference between freehold and 20-year leasehold investments and I adopt his unchallenged adjustment of -2% for the difference in size between the two restaurants, the Berry Street restaurant being 2.5 times as large as that at the subject property.    But I do not consider that 9/13 Berry Street is a significantly better location than the reference land and I would only allow a yield difference of 0.25%, rather than the 0.5% taken by Mr Massie, for this factor.  The net effect of these adjustments is to increase the yield to 9.45% which I round to 9.5%. 

31.        Given these two comparables I adopt the higher yield of 9.5% to reflect the uncertainties about the leasehold title and the covenants against the sale and consumption of alcohol.  I am not persuaded on the evidence that a purchaser would be materially deterred by these issues when deciding whether to buy the reference property and, in my opinion, a marginal increase in yield would be sufficient to allow for any associated risk. 

32.        I therefore adopt a yield of 9.5% to value the leasehold interest in the reference property.  This gives a capitalised value, for the repaired and refurbished restaurant, taken over 20 years, of, say, £245,000 (see Appendix 1).

33.        There is a significant difference between the parties regarding the costs of refurbishment.  Mr Kreike relies upon the information given to him by Mr Ly that the total of cost of the re-fit was going to be:

“…about £135,000 (approximately £50 per sq ft over the ground floor and basement only), of which £20,000 had already been spent.”

There was no evidence to support these figures; no estimates, quotations, bills or receipts.  Nor was there any breakdown of the amount allowed.  At the hearing I pointed out to Mr Kreike that in his witness statement to the inquiry into the compulsory purchase order held in June 2005 Mr Ly had said:

“To date, I have spent at least £60,000 on the refurbishment.  This has included stripping out, the installation of new lighting and electrics, internal redecoration, installation of new toilets and the purchase of new equipment and furniture.”

From my site visit I noted that the above works had been carried out and I accept that Mr Ly had spent money on refurbishing the premises, although the sum of £60,000 appears high.  Mr Kreike was unable to assist in explaining the difference between the two figures of cost already incurred, both of which were provided by Mr Ly.  In response to questions from the Tribunal Mr Kreike accepted that the estimate of £135,000 excluded works of repair to the exterior of the property.  I conclude that I am unable to rely upon the claimant’s cost estimates because they are unsubstantiated, inconsistent and incomplete. 

34.        Mr Massie relies upon a building condition survey report that was prepared by his colleague Mr Paul Jeffries in March 2010 following a visual site inspection the previous month.  Mr Jeffries had not inspected the reference land at the valuation date and so had no direct knowledge of the condition of the property at that time.  The report states:

“Compared to the condition record photographs taken in 2005 [for the CPO inquiry], it is fair to say there has been little further deterioration to the interior of the building since that date to the date of the Condition Survey.”

That comment does not apply, in my opinion, to the exterior of the building.  There is some photographic evidence to support the fact that the building has continued to deteriorate externally.  For instance, the photographs taken in 2010 show buddleia plants growing out of the parapet brickwork whereas there is no sign of these in the 2005 photographs.  In his report Mr Jeffries says:

“To the rear of the dummy façade there is evidence of corrosion to the steel frame and timber decay to the plywood and timber supports to this structure.  Due to the overall lack of weatherproofing to this façade, it is likely to deteriorate even further to the point at which it will soon require taking down and re-building …” (my emphasis)

This suggests that the deterioration of the exterior of the building is a continuing process and one which is likely to have got worse between the valuation date and the date of Mr Jeffries’ inspection.  I am satisfied that the external condition of the building has deteriorated since the valuation date and this should be reflected in the cost estimates. 

35.        There are also some specific items in Mr Jeffries’ report that I consider should be excluded.  Both experts agree that no value is attributable to the first floor accommodation and therefore I do not think it is reasonable to allow for the costs of a comprehensive refurbishment of this area.  For instance, there would be no need to provide air conditioning on this floor.

36.        I accept Mr Jeffries’ adjustment of costs to the rates applicable as at August 2007.  However, to allow for the continued deterioration of the property since the valuation date I have reduced the external repair costs by 10% (£7,000) and have further reduced the costs of the fit-out by £5,000 to reflect the fact that the first floor will not be put to valuable use and need not be fitted out to such a high standard as the remainder of the building.  I have also adopted Mr Massie’s approach to fit-out costs and have excluded the cost of a new kitchen (£80,000).  The total cost of repair and refurbishment is therefore £190,500 which I round down to £190,000.  (As a rough check I have taken Mr Ly’s estimate of £135,000, deducted his (latest) estimate of money spent to date of £20,000 and added the estimated cost of external repairs (£63,000) to give a total of £178,000.)

37.        I adopt Mr Massie’s approach to the residual valuation, in which he favours the claimant by not allowing any of the following: a rent free period for the tenant’s fit-out, finance costs, professional fees, risk or profit or a period of deferment to reflect the time taken to undertake the refurbishment works.  The open market value of the reference land is therefore the difference between the capital value of the leasehold interest in the refurbished building, £245,000, less the total costs of repair and refurbishment, £190,000, which equals £55,000. 

Determination

38.        I determine the compensation for the open market value of the leasehold interest in the reference land in the sum of £55,000.

39.        At the commencement of the hearing I reminded the parties that the reference was being heard under the simplified procedure which is, in general, a no costs regime.  The Tribunal has no record of the acquiring authority having made an unconditional offer in writing under section 4 of the 1961 Act nor of any offer of settlement having been made by the claimant.  In my opinion there are no exceptional circumstances in this reference which would justify the award of costs and neither party submitted that there were.  I therefore make no award as to costs.

Dated 29 April 2010

 

 

A J Trott FRICS

APPENDIX 1

 

 

LANDS TRIBUNAL VALUATION

8/8a NELSON STREET, LIVERPOOL L1 5DW

 

 

 

Full rental value                                   £27,600 pa

Y.P. 20 yrs @ 9.5%                                  8.812

 

 

Capital value of leasehold interest

when repaired and refurbished                                     £243,211

                                             Say                                  £245,000

Less costs of repair and refurbishment                         £190,000

Capital value of leasehold interest                                                  £55,000