UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2010] UKUT 121 (LC)

ACQ/534/2007

 

                            TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

                                                                             

COMPENSATION – Compulsory purchase of land forming part of curtilage to rural property for road improvement scheme – disturbance – Land Compensation Act 1961 section 2, rule (6)-  compensation determined at £43,389.90    

                                                                             

                                                                             

IN THE MATTER of a NOTICE OF REFERENCE

                                                                             

                                                                             

BETWEEN                                        MRS LOU BARLOW                                      Claimant

 

                                                                           and

 

                                                          HIGHWAYS AGENCY                                    Acquiring

                                                                                                                                      Authority

 

                                           Re: Huntingfields House, Stortford Road,

                                          Little Canfield, Dunmow, Essex CM6 1TG

 

 

                                                       Before: P R Francis FRICS

 

 

                                 Sitting at: 43-45 Bedford Square, London WC1B 3AS

                                                                            on

22 February 2010

 

 

 

 

 

 

 

Martin Edwards, instructed by TLT LLP, solicitors of Bristol, for the claimant

Stephen Whale, instructed by Litigation and Employment Group, Treasury Solicitors, for the acquiring authority

 

 

The following case is referred to in this decision:

Barlow v Essex County Council (2004) LT Ref: ACQ/59/2003 (Unreported BAILII: [2004] EWLands ACQ_59_2003 )

 

 

 

In addition, the following cases were referred to in argument:

Director of Buildings and Lands v Shun Fung Ironworks [1995] AC 111

Budgen v Secretary of State for Wales [1985] 2 EGLR 203

Alfred Golightly and Sons Ltd v Durham County Council [1981] 2 EGLR 190

 

                                                                    DECISION

Introduction

1.           This is a decision to determine the amount of compensation for disturbance payable by the Highways Agency (HA) to Mrs Lou Barlow (the claimant) following the compulsory acquisition of part of her property, Huntingfields House, Stortford Road, Little Canfield, Dunmow, Essex (the subject property) under the Essex County Council (Puckeridge to Parkeston Quay Classified Road A120) (Stansted to Braintree) Compulsory Purchase Order 1995.    

2.           Mr Martin Edwards of counsel appeared for the claimant, and called Mr Andrew Mark Wright FRICS FAAV, a partner in Kirkby and Diamond, Chartered Surveyors of Milton Keynes who had acted for Mrs Barlow throughout the history of matters relating to the compulsory acquisition, and who provided witness statements.   Mr Stephen Whale of counsel appeared for the acquiring authority and called Mr Brian Robert Ley Snell MRICS, an Associate Director of Lambert Smith Hampton, Chelmsford who gave evidence relating to quantum, and Mrs Deborah Gallantree C Eng MICE, a Principal Engineer with Essex County Council who gave evidence on project management and highways issues.

3.           The question of compensation for the value of the land taken, and for severance and injurious affection in connection with the construction of the A120 Stansted to Braintree bypass was determined by this Tribunal on 18 May 2004 (Barlow v Essex County Council (2004) LT Ref: ACQ/59/2003 (Unreported)) in the sum of £288,750.  As the construction works had not been completed at the time of the hearing, at paragraph 14 of the decision, the Member, Mr N J Rose FRICS said:

“… It is agreed that the Tribunal’s decision on this reference will not prejudice the claimant’s right subsequently to claim compensation for disturbance.”

The works were subsequently completed, and the road opened to traffic on 9 July 2004.

4.           Following that decision, responsibilities for the payment of further compensation were transferred from Essex County Council to the Highways Agency under the provisions of a Trunking Order made on 7 March 2005.  That fact became a long running matter of dispute between the parties, in that the claimant did not accept that Essex could be “let off the hook” in respect of disturbance and any other remaining issues relating to her claims.  However, by a letter of 2 September 2008, Mrs Barlow’s solicitor said:

“I have taken instructions from my client and can confirm that my client accepts that the Highways Agency be substituted for Essex County Council in respect of their (sic) claim for compensation.”     

5.           One of the matters raised in this reference is whether this Tribunal has the jurisdiction to determine an issue relating to the alternative access that had been provided to the property.  It appears that it was initially promised by the acquiring authority that the freehold of the land required for that access (in third party ownership) would be transferred to the claimant on completion of the works.  However, the HA now says that that is not possible and has instead undertaken to grant full and uninterrupted rights of access to the land in perpetuity.   The claimant therefore is of the view that the HA has reneged on a previously agreed deal.   At the commencement of the hearing, counsel for the parties agreed that if I was of the view that I did not have the requisite jurisdiction, a simple one-line note to that effect in the decision would suffice. 

6.           Mr Edwards said that it was accepted that that any decision the Tribunal may make with regard to compensation for disturbance under section 2, rule (6) of the Land Compensation Act 1961 is limited to monetary compensation, and that it cannot order the acquiring authority to fulfil its alleged undertaking.  Mr Whale said that this was, in terms of this reference, a non-issue.  The Treasury Solicitor had written to the claimant on 20 March 2009 re-iterating that the access issue did not form part of the claimant’s case for disturbance losses that had been set out in her claim.  This was never challenged.  The claimant had also been informed that if she wished to broaden the basis of her claim, rule 39 of the Lands Tribunal Rules should be invoked.  No such action has ever been taken.   Mr Whale said that this hearing was purely to deal with disturbance issues left over from the earlier reference, and the question relating to transfer of the access was not disturbance.   No evidence had been produced, and if I formed the view that it was a matter for the Lands Tribunal, this hearing would have to be adjourned to allow the parties time to prepare. 

7.           There are, in effect, two issues to be considered.   Firstly, whether the Tribunal has the power to force the acquiring authority to transfer ownership of the new accessway to the claimant.   Clearly it does not, and it would be for the claimant to take action through the courts if she wishes to pursue this issue.   Secondly, the question of whether the fact she only has rights of access rather than her expected freehold ownership over it, has caused any loss in the value of her property. That would obviously be within the Tribunal’s jurisdiction, and compensation would be addressed under rule (2).   No evidence was adduced to suggest that any such loss had occurred, and in any event, as Mr Whale pointed out, no attempt had been made by the claimant to broaden the basis of her claim for disturbance under rule (6) to cover this issue.           

The Claim

8.           On 28 March 2006, Mrs Barlow, through Mr Wright, submitted a claim for disturbance losses to the Highways Agency said to total £216,759.01 (although it did, in fact, amount to £216,804.91).  In summary, it was set out thus:

 

 

i)         The claimant’s time

            a)   Claimant’s time in respect of

                                 meetings with council representatives,

                                 professional advisors and contractors

                                 since acquiring property in 1987                    385 hrs @ £20 per hr         £  7,700.00

 

            b)   Preparing for meetings, letters, telephone

                                 calls and appearance at Public Inquiry and

                                 Lands Tribunal                                                  453 hrs @ £20 per hr         £   9,060.00

 

            c)   Loss of use of automatic entrance gates

                                 meaning personal attendance to let all

                                 visitors in to property                                      486 hrs @ £20 per hr         £   9,720.00

 

            d)   Time spent retrieving post from temporary

                                 letter box                                                           143 hrs @ £20 per hr         £   2,860.00

 

  ii)      The claimant’s expenses

                                 Phone calls, postage, copying, archive fees

                                 Transcript for LT hearing, photography,

                                  Fuel, rail and taxi fares                                    “Itemise where possible”   £     880.00

 

iii)       General interference

            (see Budgen v Secretary of State for Wales 1985)

            Inconvenience and general disturbance, stress

            and anxiety, loss of privacy, compromised security

                  (gaps in temporary fencing), emotional

            distress and disturbance to lifestyle                     Ex gratia                              £ 10,000.00

 

iv)       Noise and Dust

            Construction work over three summers, loss

            of use of swimming pool, loss of enjoyment

            and general amenity                                                Ex gratia                              £   5,000.00

 

v)         Interruption of Services

 

            Occasional disconnection of water, gas and

            electricity supplies                                                 Ex gratia                              £      750.00

 

vi)       Additional cleaning costs

 

            Cars, windows, carpets and curtains                      525 hrs @ £20 per hr         £  10,500.00

            Materials                                                                                                              £       714.00

 

vii)      Reinstatement works (based on quotes)

 

            a)   Electricity and water supply to barn                              £11,456.25

                                                                

            b)   Lights, trees, borders and driveway fencing  £22,696.87

            c)   Boundary fence                                                £13,639.10

            d)   ‘Silavent’ ventilation                                        £  4,588.37

            e)   (Inc in (c) above)

            f)    Making good after tree felling                        £     375.00

            g)   Upgrading driveway                                          £  8,670.00

            h)   Raising two sides of tennis court                   £  5,023.12

            i)    Housing for house name and letterbox          £  6,950.48

            j)    Swimming pool wall                                        £12,875.65

            k)   Gate piers                                                          £  2,335.00

            l)    Turfing                                                               £  7,602.00

                                                                                                                                                         £  96,211.84

 

viii)     Increased running costs

            Costs of maintaining tractor                                  Estimated                            £    7,000.00

 

ix)       Professional fees

            Additional fees for claimant’s professional

            advice, per invoiced costs

            Keith Berryman (Highways)

            Edwards Son & Noice (Solicitors)

           Gates Parrish & Co (Chartered Surveyors)

            Costs not falling within scope of

                  Conveyancing, compensation &

            Lands Tribunal Reference                                                                                   £   7,311.58

 

x)        Financial Costs and Penalties 

 

            (See Alfred Golightly & Sons v Durham County Council) 1981

 

            a)   Increased liability to income tax

                                 payable on interest received                                                                         £   6,863.81

           

            b)   Interest payable to Barclays Bank PLC

                                 in accordance with Consent Order of 27 July 2001                                  £ 32,252.98

                  

 xi)      Cost of Repairs

            Reinstatement cost for buildings on severed

            land rendered temporarily inaccessible from 2001

            and therefore suffering lack of maintenance                                                    £   9,590.00

 

xii       Irrecoverable VAT on Kirkby & Diamond fees                                                £      339.80

 

xiii)     Lands Tribunal fee                                                                                               £        50.00

 

TOTAL                                                                                                                              £216,759.01

9.           The parties produced a brief statement of agreed facts and issues.   The HA said that it agreed the principle of claim items (i) to (vi) but disputed the quantum.  The whole of item (vii) had subsequently been agreed in the sum of £30,000, no compensation is payable on item (viii) and items (xii) and (xiii) were together agreed at the claimed £389.80.

Issues

10.        The remaining issues to be determined are, therefore:

1.      The quantum of items (i) to (vi)

2.      Whether compensation is payable under item (ix), (x - the Golightly costs) and (xi) and, if so, how much.     

11.        I should record here that, at the commencement of the hearing, Mr Wright produced, and spoke to, a short witness statement.   In essence, he said that he had read the witness statements of Mr Snell and Mrs Gallantree, and that he understood his duty to assist the Tribunal.   He said he had made it known to all the parties involved that he considered it particularly unhelpful for the opposing sides to adopt entrenched views, and that he had gone to considerable lengths to broker a compromise settlement.  That said, and whilst it “may not be particularly helpful to my client”, he said that he had a degree of sympathy with the acquiring authority’s position.   He continued:

“…I can see where they are coming from and why it might appear that the claimant may be regarded as behaving unreasonably.  I can also understand how this impression may be supported by what might be considered to be an exaggerated and unsupported claim for disturbance losses.”

Mr Wright then went on to set out the background to the situation that Mrs Barlow had found herself in and why she was of the view that the acquiring authority had acted unreasonably. The claimant, he said, had undoubtedly suffered real hardship and disturbance, and had incurred quantifiable losses that were unique to this case, and her particular circumstances.   He said he was satisfied that a direct causal link was established (per Director of Buildings and Lands v Shun Fung Ironworks [1995] AC 111) in respect of the disturbance items claimed; they were not too remote and, in the circumstances, Mrs Barlow had not been unreasonable to the extent that the HA was suggesting.  

Claimant’s case

12.        Mr Wright explained that, following submission of the detailed disturbance claim, the acquiring authority’s appointed agent responded in detail on 10 July 2006.   Negotiations and discussions then took place throughout the rest of 2006 and during 2007, but no agreement could be reached, and a reference to this Tribunal was thus made by the claimant on 11 December 2007.  Negotiations nevertheless continued, and arrangements were made for a meeting with the authority’s representatives for 18 March 2008, but did not take place due to the claimant not being prepared to meet a pre-condition set out in HA’s letter of January 2008 whereby Mrs Barlow was required to accept HA as the acquiring authority (in place of Essex CC), and to provide an agenda/discussion points in advance.

13.        Although he had said in his statement of case that the claim had been “fully documented”, Mr Wright accepted in cross-examination that it was not, and despite the HA seeking information to enable it to prepare its evidence for the Tribunal on numerous occasions since June 2008, it was only on 31 October 2008 that the claimant provided a letter and some supporting documents in response.  That letter set out her claim for time spent, an estimate for turfing and landscaping costs [relating to the reinstatement works that have now been agreed], and a schedule summarising dates of correspondence to and from relevant parties.  It concluded: “I have supporting evidence and quotes for the other parts of the claim which I shall be sending to you.”    They were not sent, despite Mrs Barlow having “four or five” boxes of correspondence relating to the claim.   Neither he, nor to his knowledge, the claimant had been through them and, in response to a question from me, Mr Wright said they were not expecting to have to provide them.  He accepted that “in hindsight” the document issue should have been addressed.

14.        He also accepted that, despite having asked the claimant to “itemise where possible” her claim for telephone, postage etc, that did not appear to have been done.   As to the number of hours the claimant said she had spent on various tasks such as collecting post from the letterbox at the end of the drive, Mr Wright said that the hourly rate of £20 had been agreed with the HA and, as the matter had been going on for such a long period, those hours “do build up.”  He accepted that no evidence had been adduced in respect of claimed cleaning costs, or other elements of the claim that were not backed up by invoices or detailed records.   As to items (iii) to (vi), Mr Wright said that the principal of such claims was accepted in Budgen v Secretary of State for Wales [1985] 2 EGLR 203, where compensation was paid for the affects of noise, dust and general interference suffered by the claimant during the construction of the scheme.    Regarding item (ix), he acknowledged that no copy invoices had been included within the bundle, and there was no evidence that they had been paid.  

15.        In his witness statement, Mr Wright said that the principles for payment of the claims under  item (x) were established in Alfred Golightly and Sons Ltd v Durham County Council [1981] 2 EGLR 190.   Item  (x(a)) was claimed because Mrs Barlow had incurred a higher rate of tax due to the interest on the original compensation being paid in one lump sum rather than spread over a number of years, although in cross-examination he accepted that this was incorrect and, again, no documentary evidence had been produced despite it having been requested.   He also said that the interest that was paid had initially had tax deducted at the basic rate, rather than being paid gross as the claimant had asked.   As to item (x(b)), this was interest that had to be paid by the claimant to Barclays Bank due, he said, to the delay from the initial claim under s.52 for an advance payment in 2001 to the date it was finally paid in 2004.  However, he accepted in cross-examination that the claimant had refused it when it was offered, for reasons associated with her dispute with the council, and that was the reason that it was not paid until the whole amount was settled following the Tribunal’s substantive determination.  Once again, no documentary evidence, by way of bank statements, had been provided.

16.        In respect of item (xi), repairs, Mr Wright said that a building on an area of land severed by the scheme, and inaccessible during the works, had not received any maintenance and had fallen into disrepair.  The sum claimed was an estimate of the cost of putting it back into repair.  In cross-examination, he acknowledged the acquiring authority’s argument that this was not a disturbance claim and said it was for the Tribunal to use its discretion.   He accepted that there was no evidence that the claimant had requested access to the buildings to carry out maintenance work, and that, at the relevant time, the land was, in any event, let out to a third party.  

Acquiring Authority’s case

17.        Mr Snell is a chartered surveyor with over 25 years experience of valuation and compulsory purchase matters.  He said he had been involved with the road scheme since December 2000, and had been instructed by the HA to provide expert evidence in respect of the disputed disturbance issues.   However, he had not appeared at the substantive hearing in 2004 (the expert there having been Richard Crayston FRICS of Fenn Wright, Colchester), and acknowledged that he had not been directly involved with the scheme during the relevant period.  He admitted that he first visited the subject property in January 2009, which was over a year after this reference was lodged, and had not been personally involved with the case until then.  He said he had “speed read” the 6 boxes of files that were in his firm’s possession, together with the decision in ACQ/59/2003 in order to establish the background, but had not specifically checked whether the letters referred to in Mrs Barlow’s schedule had, in fact, been sent or received.

18.        Regarding the claims for the claimant’s time, item (i), he said that, in his professional opinion, £20 per hour was not unreasonable but with no detailed breakdown it was not possible for matters to be verified.   Indeed, as to item (i(a)), time was being claimed for periods before Huntingfields House was even built and on item i(b) some of this time could easily have been related to her attendance at, and in association with, the public inquiry into the scheme.   In his view, whilst it was to be expected that an affected owner would have to expend some personal time on scheme related matters, it was important that that response should be reasonable and proportionate.  For example, he said that the time calculated for collecting mail assumed a special journey each time, and did not seem to take account of times when she would be passing the post box anyway.  In his view, Mrs Barlow’s involvement had been “extraordinary”, and a claim for approaching 2,000 hours worth of time was wholly disproportionate.

19.        Mr Snell said that in order to form an objective view of what was reasonable, he had checked the payments made to the owners of other properties affected by the scheme.  They ranged from nil (Warish Hall), through £683 (Tiggers) to a maximum of £12,350 (Greenfields), the latter being a working farm that had been much more seriously affected with several access points having to be moved, alteration to field boundaries, drainage issues and the like.   The owner had had to be personally involved to a considerable degree, and was also representing others with land to the west.    He said that taking these into account, and in the light of his general experience in such matters, a payment of £5,000 would be appropriate under this head.

 

20.        As to the claimant’s expenses, item (ii), Mr Snell said that with no records or receipts available, an arbitrary figure of £100 would be appropriate.   Item (iii), general interference, was, he admitted, a matter which was difficult to document.  His view was that £5,000 would suffice.   That should include items (iv), (v) and (vi).   Regarding the claim for professional fees (item (ix)), he said no invoices had been produced, he thought that some of the fees claimed related to professional advice in respect of the public inquiry, and those of Gates Parrish & Co were in respect of “the provision of another view” from chartered surveyors.   It was not reasonable, he said, for the acquiring authority to have to pay for more than one firm of professional advisers in any particular discipline.  

21.        The claim for financial costs and penalties (item (x)), was again unsupported by any documentation.   Mr Snell said in his view the personal tax circumstances of the claimant were too remote from the acquisition to be a reasonable consideration for the acquiring authority.   Furthermore Mrs Barlow had not accepted the advance payment, which would have served to spread the liability had she done so, and would also have reduced the overall amount of interest received.   Similarly, the refusal of the advance payment offered (despite it not covering the whole of her liabilities to Barclays) would have been a contributory factor in the charges that she incurred.  In any event, it was Mr Snell’s opinion that this aspect of the claim was again too remote.  

22.        The claim for the cost of repairs to the farm building temporarily severed from the property was based on the fact that the claimant alleged she was denied access in order to maintain it.  The acquiring authority, he said, had no record of ever having been asked to make access available.     It was their case that access either was available, or would have been provided if it was sought.  This claim was, in his view, again too remote and in any event there must be some question as to whether it was a valid disturbance issue.    

23.        Mrs Gallantree is a chartered engineer with Essex County Council and worked on the A120 scheme as a project manager.   She said that the claimant’s property was one of, but not the worst affected properties on the scheme.   Greenfields, Tiggers and Stebbing Farm were more adversely affected than Huntingfields House.  The claimant had contacted her about various issues, particularly access and security, but there were times, she said, when Mrs Barlow would seemingly disengage with the process of communication, and this had created difficulties with Arup (the authority’s agent) and costly delays.  As to the amounts claimed in respect of items (i) and (ii), Mrs Gallantree said this was for the claimant to prove and it was not her position to comment.  

24.        The claims under (iii), (iv), (v) and (vi), were, in her view, excessive.   It should be borne in mind that prior to the commencement of the scheme works, the A120 was already a very busy road, and there would have historically been noise, dust and fumes.   She had no record of complaints by Mrs Barlow to the contractor, and she herself had not received any phone calls from the claimant, despite Mrs Barlow having her number.  There was also a dedicated 24 hour public liaison line where all calls were logged, but again she was not aware of any contact having been made, and she was certainly not aware of any suggestions that the claimant had been unable to use her swimming pool.    There was little if any round-the-clock working on the project, and in any event the claimant’s hose was set well back from the site boundary, and in Mrs Gallantree’s view, disturbance would have been generally minimal.    Although she was satisfied that the security concerns over the fencing issues were genuine, and accepted that the new road opened before they were resolved, she said that there had been no reports of any incursions on to the property.          

25.        In respect of the advance payment, Mrs Gallantree said that she had tried to explain to the claimant, when she refused the sum offered, that acceptance would make no difference to, or prejudice the final compensation sum that was determined or agreed.

26.        She confirmed that to her knowledge there was no problem about gaining access to the severed land for the purposes of building maintenance, and that the contractor would have been obliged to make it available if they had been asked.  

27.        In his skeleton argument and closing submissions, Mr Whale said that the key element relating to this claim was the lack of supporting evidence.   It was necessary for the Tribunal to find, as matters of fact, that the claimant had actually incurred the costs she was claiming, and that the three principles established in Shun Fung (causation, remoteness and reasonable attempts to mitigate losses) were satisfied.   He submitted that Mrs Barlow’s failure to produce evidence to support her claims meant that her case was unproven.  She had not even produced a witness statement.  No records had been kept of the time that she had allegedly spent, and at approaching 2,000 hours (which amounted to more than a year if it were to be assumed that 5 hours per day was taken up on compensatable matters), the claim was out of proportion to settlements made on other properties affected by the scheme, and was clearly excessive.  The Tribunal should, he said, be careful not to “guesstimate” an appropriate amount for claim items (i) and (ii), and Mr Snell’s figure of £5,100 should be accepted.

28.        As to general interference, noise, dust extra cleaning and interruption to services (claim items (iii) to (vi)), whilst it was common ground that the decision in Budgen should apply, there was nothing before me to support a claim to match even the amount awarded in that case (£5,000), let alone the considerable sums claimed in this reference.  Whilst Mr Snell had intimated that such a sum was appropriate, it was not proven and I should be reluctant to accede to it.

29.        The claim for financial costs and penalties (item x) was on the face of it supported in principle by Golightly but, Mr Whale submitted, there were three subsequent Lands Tribunal cases where such claims had been rejected.  In Simpson v Stoke on Trent CC [1982] RVR 290 a claim for bank interest incurred by the claimant was rejected on the grounds that there was no evidence produced to the effect that the claimant would otherwise have avoided borrowing from the bank.   In Harris v WDA [2000] RVR 49, the circumstances of the financial costs claim were held not to meet the Shun Fung principles, and in Weymede Litho Printers Ltd v Runnymede BC [2002] RVR 61 the President found that nothing in the material that had been before him showed that any loss had been suffered by the claimants through having to discharge a bank overdraft that was attributable to the compulsory acquisition.   These cases, Mr Whale said, support the argument that no compensation should be paid in respect of claim item (x), but in any event, absolutely no documentary evidence had been produced to support the assertions that the claimant was making.  Not only was there no evidence of a causal connection, and the claims were clearly too remote, but also it was a fact that the claimant could have mitigated at least some of here alleged losses by accepting the advance payment when it had been offered.                          

Conclusions

30.        In his closing submissions, Mr Edwards said that the acquiring authority had sought to undermine the claimant’s case on the basis that no, or insufficient, documentary evidence had been provided.   He said that at no time had disclosure been sought, and no attempt had been made to clarify any of the points made in the claim.   It was unfair, therefore, to now rely upon non-disclosure as a ground for refusing payment of the sums claimed.   This was patently not the case, and the acquiring authority referred to its many attempts to extract the required supporting documents or records, and included evidence within the trial bundle.  

31.        Mr Wright’s statement at the beginning of the hearing was telling, and made it clear that he did not disagree with the HA’s stance.  The claimant, in my view, has greatly exaggerated the claims that have been made under the various heads, and despite the authority’s numerous attempts to extricate the relevant documentation, has not produced the supporting evidence that is necessary to back them up.  Mr Wright was right to admit that the “document issue” should have been addressed long before the Tribunal hearing, and in my view he should have known that his client would have little chance of success on the basis of the scant supporting material he did have to hand.    

32.        Turning to the individual heads of claim, the time alleged to have been spent by Mrs Barlow in respect of meetings, preparing and considering correspondence, telephone calls etc (item (i)), does not appear to have been recorded in any meaningful manner and, when including the time expended on meeting visitors at the gate and collection of post, amounts to almost 1,500 hours.   I accept Mr Snell’s comments that there, surely, did not need to be such frequent visits to the mailbox as the hours said to have been expended suggest, especially as, in my view, post could often be collected when meeting visitors at the gate.   Any little weight that I might be able to give to the claimant’s evidence (and I note that she did not produce a witness statement) is further eroded by the fact that the claims go back to a time before the subject property was even acquired.    

33.        In the light of what I have said, and taking into account also the level of settlements paid to other owners affected by the scheme, I consider the council’s offer of £5,000 to be adequate.  As to item (ii), again the claimant has not provided any receipts despite surely knowing that their retention for future verification would have been required.   Nevertheless, the HA has acknowledged that some payment must be due and has offered £100.   I do consider this to be parsimonious, and am of the view that £500 would be more appropriate.

34.        Items (iii) to (vi) amount to a shade under £27,000.   My determination on general interference, effects of noise and dust and the like, must be a purely arbitrary figure and I note Mr Edwards’s suggestion in closing that Budgen was over 20 years ago, and any monetary amounts should be considered in that light.  Mr Snell said £5,000 was appropriate, but Mr Whale submitted that nothing should be paid.   I do not agree.  The claimant has undoubtedly suffered under these heads, and whilst I note that no complaints about noise, dust, fumes or any other inconvenience appear to have been made at the time, that does not mean she should receive nothing.  In my judgment, the claim for over £11,000 for 525 hours of cleaning time and materials appears ridiculously high, and the other figures seem to have been plucked out of the air.  It seems to me that, in the circumstances of this case, a payment in the sum of £7,500 would more than adequately compensate the claimant under these heads.            

35.        Regarding item (ix), professional fees, I suggested at the hearing that I thought there might be an opportunity for the parties to reach agreement between themselves if the relevant invoices were produced, with proof that they had been paid, prior to this decision being issued.  If that were to have been the case, then the agreed sum could be incorporated within my determination of the overall disturbance compensation due.  However, despite my understanding being that the relevant invoices were forwarded to the acquiring authority after the hearing, I have received no confirmation that an agreement has been reached.   On the grounds that no such documentation was before me at the hearing (and there was a suggestion by the acquiring authority that they may not all have related to the matter in hand) I find that part of the claim unproved, and make no determination on it.

36.        As to Item (x), I find that whether or not any claim in respect of financial costs and penalties might, in principle be payable, the fact remains that no evidence whatsoever was adduced to support the two claims.  Furthermore, I accept the HA’s argument that if the advance payment had been accepted when it was offered, then the claimant’s predicament might have been at least to some extent, reduced.   In the circumstances, the claimant’s case under this head is not proved, and compensation is therefore nil.

37.        On item (xi), I similarly find that the case is not proved.  There was no evidence to suggest that the claimant had sought access to the land in question for the purposes of maintaining the building on it (or for any other reason), and accepted Mrs Gallantree’s evidence that, had access been sought, the contractor was under an obligation to provide it.

38.        The above deals with the issues in dispute and, along with the items that were agreed, I determine that the compensation payable for disturbance under the various heads shall be as summarised below:

i                         Claimant’s time                                                                       £  5,000.00           

         ii             Claimant’s expenses                                                                £     500.00

iii - vi    General interference                                                                £  7,500.00

vii                      Reinstatement works                                                        £30,000.00

viii                     Cost of maintaining tractor                                                      Withdrawn

ix                        Professional fees                                                                     Nil

x                         Financial costs and penalties                                                  Nil

xi                       Cost of repairs                                                                        Nil

xii                      Irrecoverable VAT                                                                  £    339.80

xiii                     Lands Tribunal fee                                                                  £      50.00

Total compensation payable                                                                            £43,389.80

39.        This decision determines the substantive issues in this reference and will take effect when, and not before, the question of costs has been decided.   The parties are now invited to make costs submissions in writing.

                                    DATE  29 April 2010

 

 

                                    P R Francis FRICS