UT Neutral citation number: [2010] UKUT 364 (LC)

LT Case Number: LCA/197, 198 & 394/2009

                            TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

COMPENSATION – modification order – preliminary issue – leaseholder claimant – freeholder granting lease to another person on expiry of claimant’s lease – whether compensation could be claimed on basis that in the absence of the modification a new lease would have been granted to the claimant – held that it could not – loss not directly attributable to modification – Town and Country Planning Act 1990 ss 107 & 117, land Compensation Act 1961 s 5

                           IN THE MATTER OF THREE NOTICES OF REFERENCE

BETWEEN                                 (1) WILLIAM HENRY BOND

                                                  (2) HOLME SAND & BALLAST

                                     (3) HANSON QUARRY PRODUCTS LIMITED              Claimants

                                                                           and

                                                   DORSET COUNTY COUNCIL                     Compensating

                                                                                                                                     Authority

                                                    Re: Masters Pit North and Masters Pit South

                                                           OS Fields 73 and 74,

                                                           Puddletown Road,

                                                           Stokeford, East Stoke,

                                                           Near Wareham

                                                           Dorset, BH20 7PL

                                                           Before: The President

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

                                                           on 23 September 2010

Ian Dove QC, instructed by Burges Salmon LLP, for the first and second claimants

Simon Pickles, instructed by Knights Solicitors LLP, for the third claimant

Andrew Tait QC and Alexander Booth, instructed by Dorset County Council Legal Department, for the compensating authority

The following cases are referred in this decision:

Trocette Property Co Ltd v Greater London Council (1974) P & CR 408

Rugby Joint Water Board v Foottit [1973] AC 202

Greenwoods Tyre Services Ltd v Manchester Corpn [1972] RVR 91,

Pearl v London County Council [1961] 1 QB 287

Bishopsgate Space Management Ltd v London Underground Ltd [2004] RVR 89

Pennine Raceway Ltd v Kirklees Metropolitan Borough Council [1983] 1 QB 382

The following further cases were cited in argument:

Minister of Transport v Pettitt (1968) 67 LGR 449

Transport for London v Spirerose Ltd [2009] 1 WLR 1797

Hobbs (Quarries) Ltd v Somerset County Council (1975) 30 P & CR 286

Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111

Waters v Welsh Development Agency [2004] 1 WLR 1304

Hughes v Doncaster Metropolitan Borough Council [1991] AC 382

Horn v Sunderland Corporation [1941] 2 KB 26

Abbey Homesteads (Developments) Ltd v Northamptonshire County Council (1992) 64 P & CR 377

Harvey v Crawley Development Corporation [1957] 1 QB 485

Pattle v Secretary of State for Transport [2009] UKUT 141 (LC)

                                           DECISION ON A PRELIMINARY ISSUE

Introduction

1.           Each of the claimants in this case has given notice of reference in relation to a claim for compensation under section 107 of the Town and Country Planning Act 1990 following the modification of planning permissions for mineral extraction at Masters Pit, East Stoke, Dorset.  The preliminary issue for determination relates to the basis on which part of the claim made the third claimants, Hanson Quarry Group Europe Ltd, is made.  Although the question is expressly related to the Hanson claim, the answer to it will, or may, affect the claims of the first and second claimants. 

2.           The planning permissions, for Masters Pit North and Masters Pit South respectively, were granted on 29 April 1960 for the excavation of sand and gravel.  Together the two pits, the total area of which, as specified in the two modification orders, is about 114 hectares, have always been worked as one.  Since the grant of the permissions large areas of the heathland within and adjoining the site have been designated as Sites of Special Scientific Interest (in 1986 and 1995) and they have been subsequently elevated to European nature conservation status.  In October 1998 the Dorset Heathlands Special Protection Area (SPA) and Ramsar site was classified, and the Dorset Heaths Special Area of Conservation (SAC) was sent forward to the European Commission.  The candidate designation was formally upgraded to SAC status on 1 April 2005.

3.           Applications were made in 1997 under Section 96 and paragraph 9 of Schedule 13 to the Environment Protection Act 1995 (ROMP review) for the determination of new planning conditions for the Permissions.  These applications are yet to be determined.

4.           Dorset County Council as Mineral Planning Authority also carried out reviews of the permissions as required under regulation 50 of the Conservation (Natural Habitats, &c.) Regulations 1994.  On 1 July 2005 the county council’s planning committee considered “appropriate assessments” of the permissions which considered the likely impacts, for each of the affected European and Ramsar sites, of the potential development of the site.  The committee concluded that the permitted winning and working of sand and gravel at both mineral sites would be likely to affect adversely the integrity of the Dorset Heathlands SPA and Ramsar Site and the Dorset Heaths SAC.  It was concluded that in order to prevent adverse effects on the integrity of these designations quarrying would need to be prevented within 47.2 ha of SPA/SAC heathland within the area of the permissions and within a further 6.1 ha of undesignated land, where working would be likely to impact on the hydrological system supporting the designated habitat.

5.           The county council consulted with the landowner (Mr Bond, the first claimant) and the operator (Hanson, the third claimant) to identify alternatives to working or compensation.  No suitable alternatives were identified and the county council’s planning committee concluded at a meeting on 5 May 2006 that it was necessary that the permissions be modified by means of modification orders so as to impose planning conditions to secure the restrictions identified as necessary in the conclusions on the appropriate assessments that had been approved by the committee on 1 July 2005.  Any compensation would be payable in accordance with Section 107 of the Town and Country Planning Act 1990.

6.           Modification orders were subsequently made on 10 November 2006 and were in due course confirmed on 11 April 2007.  The purpose of the modification orders was stated to be to “protect the integrity of the Dorset Heathlands SPA and Ramsar and the Dorset Heaths SAC”.  The effect of the modification orders was to restrict the excavation of minerals within areas of the permissions that were identified.

7.           The first claimant, William Henry Bond (trading as the Holme Estate) is the land and mineral owner of Masters Pit.  On 25 August 1966 W E Masters Limited, a company that is now part of the Hanson group, took a 21 year lease from 1 July 1966 of Masters Pit.  On 1 October 1993, by which time W E Masters Limited had been absorbed by ARC Limited, Mr Bond granted a lease for 21 years from 1 July 1987 of the beds of sand and gravel within the 285.3 acres of what was referred to as “the Quarry land” with the right to work them.  It was under this lease that Hanson occupied the land and worked the minerals pursuant to the two planning permissions.  It was still working the minerals at the date of confirmation of the modification orders.  The lease expired on 30 June 2008.

8.           On 4 May 2006 (the day before the meeting of DCC’s planning committee referred to above) a lease between Mr Bond and J V Masters LLP of the minerals at the site for a term of 30 years from 1 July 2008 was executed.  The Land Registry, however, refused to register this lease, and a replacement lease in substantially the same terms was executed on 1 November 2006 and was registered on 14 November 2006.  J V Masters LLP was incorporated on 27 April 2006, and its name was changed on 15 May 2006 to Holme Sand & Ballast LLP.  This company is the second claimant.

9.           It is Hanson’s case that, had it not been for the European designations, it would have been granted a new lease to enable it to continue mineral extraction after 30 June 2008 and the lease to J V Masters LLP would not have been granted.  Part of the claim is based on the assumption that Hanson would have been granted such a lease.  Its valuer considered the market value of Hanson’s leasehold interest assuming the grant of a new lease.  He then valued the interest in the absence of the new lease and took the difference between the two figures as representing the loss suffered by Hanson in consequence of the modification orders.  The other claimants and the compensating authority deny that a new lease would have been granted to Hanson; and they say that, as a matter of law, compensation under section 107 cannot be assessed on the assumption that it would have been granted. 

10.        With the agreement of the parties, in order to dispose of this question of law, I ordered that the following be determined as a preliminary issue:

“Whether, in respect of any of the claims, compensation may in law be assessed on the basis that in the absence of the European designations and/or the modification orders, a new lease would have been granted to Hanson to allow continued working of leasehold minerals.”

The statutory provisions

11.        Section 107 of the 1990 Act provides for compensation where planning permission is revoked or modified.  Subsection (1) is in these terms:

“(1)   Subject to section 116, where planning permission is revoked or modified by an order under section 97, then if, on a claim made to the local planning authority within the prescribed time and in the prescribed manner, it is shown that a person interested in the land or in minerals in, on or under it –

(a)        has incurred expenditure in carrying out work which is rendered abortive by the revocation or modification; or

(b)        has otherwise sustained loss or damage which is directly attributable to the revocation or modification,

the local planning authority shall pay that person compensation in respect of that expenditure, loss or damage.”

It is to be noted that subsection (4) provides for certain planning assumptions to be made in calculating for the purposes of this section the amount of any loss or damage consisting in the depreciation of the value of an interest in land; so that it is clear that the loss or damage for which compensation may be claimed includes such depreciation.

12.        Section 117 supplements section 107, providing as follows:

“(1)   For the purpose of assessing any compensation to which this section applies, the rules set out in section 5 of the Land Compensation Act 1961 shall, so far as applicable and subject to any necessary modifications, have effect as they have effect for the purpose of assessing compensation for the compulsory acquisition of an interest in land.

(2)     Subject to regulations by virtue of section 116, this section applies to any compensation which under the provisions of this Part is payable in respect of depreciation of the value of an interest in land.”

Regulations have been made under section 116, and they relate specifically to mineral working, but they are not relevant to the present claims.

13.        Reference is made in section 117(1) to section 5 of the Land Compensation Act 1961.  This provides:

“5.     Rules for assessing compensation. 

Compensation in respect of any compulsory acquisition shall be assessed in accordance with the following rules:

(1)     No allowance shall be made on account of the acquisition being compulsory:

(2)     The value of land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise:

(3)     The special suitability or adaptability of the land for any purpose shall not be taken into account if that purpose is a purpose to which it would be applied only in pursuance of statutory powers, or for which there is no market apart from the requirements of any authority possessing compulsory purchase powers:

(4)     Where the value of land is increased by reason of the use thereof or of any premises thereon in a manner which could be restrained by any court, or is contrary to law, or is detrimental to the health of the occupants of the premises or to the public health, the amount of that increase shall not be taken into account:

(5)     Where land is, and but for the compulsory acquisition would continue to be, devoted to a purpose of such a nature that there is no general demand or market for land for that purpose, the compensation may, if the Lands Tribunal is satisfied that reinstatement in some other place is bona fide intended, be assessed on the basis of the reasonable cost of equivalent reinstatement:

(6)     The provisions of rule (2) shall not affect the assessment of compensation for disturbance or any other matter not directly based on the value of land:

and the following provisions of this Part of this Act shall have effect with respect to the assessment.”

14.        Reference was also made in argument to section 9 of the 1961 Act, and I set this out also:

“9.     No account shall be taken of any depreciation of the value of the relevant interest which is attributable to the fact that (whether by way of allocation or other particulars contained in the current development plan, or by any other means) an indication has been given that the relevant land is, or is likely, to be acquired by an authority possessing compulsory purchaser powers.”

Submissions for Hanson

15.        For Hanson Mr Simon Pickles drew attention to the long association with the quarry of the company and the entities that it had absorbed, W E Masters Ltd and ARC Ltd.  The planning permissions of 29 April 1960 were granted to W E Masters Ltd, and the companies under the terms of the 1966 and 1993 leases had worked the sand and gravel up to and beyond 11 April 2007.  Mr Pickles also drew attention to DCC’s resolution of 1 July 2005, which recognised that quarrying would need to be prevented within the SPA/SAC area, and the resolution of 5 May 2006 to make the modification order.

16.        The requirement in section 107(1) that the loss or damage should be “directly attributable” to the modification order, said Mr Pickles, imposed a limitation that was to the same effect as the conditions of causation, remoteness and reasonableness that limit compensation for compulsory purchase.  There was nothing in the 1990 Act that should preclude the assessment of compensation based on the grant to Hanson of a new lease.  As for compulsory purchase a claimant was entitled to be compensated fairly and fully for his loss.  The basis of compensation was the value to the owner, and the Pointe Gourde principle applied to explain and amplify the expression “value”.

17.        Hanson’s claim, Mr Pickles said, sought compensation for the inability to work Masters Pit pursuant to a new lease under rule (2) or alternatively rule (6) of section 5 of the 1961 Act.  Trocette Property Co Ltd v Greater London Council (1974) P & CR 408 showed that the potential for renewal could properly be reflected in the value of a lease that was compulsorily acquired.  Mr Pickles also relied on statements to that effect by the Law Commission in Towards a Compulsory Purchase Code: (1) Compensation (Law Com No 286) Cm 6071, December 2003.  The assessment of compensation on this basis would reflect the commercial reality of the situation.  If Hanson had assigned the residue of its lease to another minerals operator on 11 April 2007, the date of confirmation of the order, the open market valuation of its interest would have taken account of the expectation of its being renewed.  That Mr Bond became unwilling, as a result of the impending modification order, to enter into a new lease with Hanson, instead placing himself in the position of operator, was to be ignored under section 9, Mr Pickles said.  Section 9 was to be read, pursuant to section 117(1), as having effect for the purpose of compensation under section 107 “subject to any necessary modification”.

18.        As far as HSB was concerned, Mr Pickles contended that it was not a person “interested in” the land for the purposes of section 107.  It would not have a legal estate in the land until the commencement of the term of its lease.  It was not in possession of the land, was not operating its business from it and had not incurred expenditure on the land in furtherance of its business.  It was not therefore, entitled to compensation.  The law did not contemplate double recovery, said Mr Pickles, and there would be no double recovery because HSB did not have a compensatable interest.

19.        Mr Pickles submitted that even if Hanson’s claim for losses based on a new lease were to be treated as excluded from the scope of rule (2) by reason of Rugby Joint Water Board v Foottit [1973] AC 202 the claim could still be legitimately met under rule (6).  Decisions that treated disturbance compensation as limited to the unexpired period of a claimant’s lease (Greenwoods Tyre Services Ltd v Manchester Corpn [1972] RVR 91, Pearl v London County Council [1961] 1 QB 287 and Bishopsgate Space Management Ltd v London Underground Ltd [2004] RVR 89) could be distinguished on the basis that they concerned minor interests to which specific statutory provisions applied.

Submissions for the first and second claimants and the compensating authority

20.        For the first and second claimants Mr Ian Dove QC submitted that sections 107 and 117 of the 1990 Act made clear that compensation was to be assessed in relation to interests that actually existed and not interests that might have existed or hypothetically could have been created.  The date of valuation was agreed to be the date of confirmation of the order.  At that date HSB had a lease of the land from 1 July 2008; Hanson’s lease had not been renewed; and Hanson’s lease could not be renewed because of the lease that had been granted to HSB.  Rugby Water Board established that consideration of what would have happened in the no-scheme world was of no relevance to the ascertainment of the interests to be valued.  To hold that Hanson was entitled to compensation on the basis of the hypothetical renewal of its lease would expose the county council to the prospect of paying compensation twice over, since HSB had a claim which was irresistible as it arose from an actual interest in the land.

21.        For the compensating authority Mr Andrew Tait QC said that their position was that the claims must proceed on a consistent basis, and there was no disagreement between the parties that the claims of HSB and Hanson were on the facts incompatible.  Both the claimants were interested in the land, and there was no reason to reject the claim of HSB on the ground that it was incompatible with Hanson’s claim.  Under section 107(1) the compensation to which a claimant was entitled was limited by reference to the extent to which the claimant was interested in the land.  It was not payable on the basis of some other, conjectural, interest.  Moreover the loss or damage sustained by the claimant must be “directly attributable” to the modification, but Hanson’s failure to secure a new lease was the result of the freeholder’s decision to grant a lease to HSB instead and was thus not directly attributable to the modification.

22.        Under Rugby Water Board, Mr Tait said, it was not permissible when applying the rules in section 5 to expand the interest for which compensation was payable, and section 9 (and thus Trocette) could not be relied on for this purpose because section 117 of the 1990 Act applied only the rules in section 5 and not other provisions of the 1961 Act.  There was no reason for treating disturbance and loss of profits differently from rule (2).  And in any event, even if Rugby Water Board did not apply, it was not open to Hanson to contend as a matter of causation that it had lost profits owing to the modification order, since it was the existence of the HSB lease and not the order that caused the loss.

Conclusions

23.        I start by considering section 117 of the 1990 Act.  This applies (see subsection (2)) to any compensation payable under section 107 “in respect of depreciation in the value of an interest in land”.  Under section 107 compensation is payable to a person interested in land or minerals who has incurred expenditure in carrying out work rendered abortive by the revocation or modification or “(b) has otherwise sustained loss or damage which is directly attributable to the revocation or modification”.  I have noted above that (b) includes loss or damage consisting in the depreciation of the value of an interest in land.  It is only this category of loss, therefore, to which section 117 has application.

24.        Section 117 applies for this purpose “the rules set out in section 5” of the 1961.  Contrary to Mr Pickles’s contention, therefore, section 5 is not applied in its entirety.  It is only the rules in section 5 that are applied.  Thus the closing words of the section, giving effect to “the following provisions of this Part of the Act”, have no application; and, therefore, section 9, relied on by Mr Pickles, is of no relevance.

25.        Moreover the rules in section 5 are applied “so far as applicable and subject to any necessary modifications”.  Rule (1) (no allowance for the acquisition being compulsory) is clearly not applicable.  Nor, in my judgment, contrary to Mr Pickles’s contention, is rule (6) applicable.  Rule (6) provides that rule (2) shall not affect the assessment of compensation for disturbance or any other matter not directly based on the value of land.  Since section 117 applies the rules in section 5 only for the purpose of assessing compensation for the depreciation in the value of an interest in land, rule (6), relating to matters other than this, has no application.  In any event, expressed as it is, rule (6) confers no entitlement to compensation for disturbance or other loss.  As enacted as part of section 2 of the Acquisition of Land (Assessment of Compensation) Act 1919 it was simply a recognition that the rules did not affect the entitlement to compensation for disturbance and other loss that had been held to exist under the Lands Clauses Consolidation Act 1845.  That entitlement continues under the present legislation as being inherent in the concept that compensation for compulsory purchase of land should represent the value of the land to the owner.  Thus rule (6) is simply a recognition of entitlement to compensation for disturbance and other loss, and the entitlement is that which arises where land is compulsorily acquired.  In the case of a modification order it is section 107 that contains the entitlement, and the person who claims compensation must bring himself within the terms of subparagraphs (a) and (b).

26.        As far as the other rules in section 5 are concerned there is no question here of any special value to an authority with compulsory purchase powers (rule (3)) or of equivalent reinstatement (rule (5)).  Rule (4) (unlawful uses) is capable of applying, but it is essentially rule (2) with which we are concerned.  To the extent that a claimant’s loss consists in the depreciation in the value of his interest in the land that value is the amount which the land if sold in the open market by a willing seller might be expected to realise.  Under section 107(1)(b) the depreciation must be “directly attributable to” the modification.  Any other loss or damage for which compensation is claimed (for instance and in particular for the loss of prospective profits) must equally under that provision be directly attributable to the modification.

27.        A claim for compensation under section 107 may only be made by “a person interested in the land or in minerals in, on or under it”.  There is no question that Hanson’s lease, which at the date of confirmation of the order still had rather over 15 months to run, made it a person interested in the land for the purpose of this provision.  The dispute that arises on Hanson’s claim is as to whether, as the compensating authority and the other claimants contend, it cannot base its claim on an expectation that, in the absence of the modification order it would have been granted a new lease to take effect on the expiration of the existing one.  The case that is put against Hanson is that the expectation of a new lease is excluded as a matter of law under Rugby Water Board and as a matter of fact by the grant of the lease to HSB; and that to allow a claim by Hanson on the basis of such expectation would expose the compensating authority to the payment of compensation twice over, to both HSB and to Hanson.  I will consider each of these three contentions in turn.  Before doing so, however, I need to dispose of Mr Pickles’s submission that HSB’s lease did not make HSB a person interested in the land or minerals for the purpose of section 107.

28.        The lease to HSB was a reversionary lease to take effect in possession on the expiry of Hanson’s lease.  It was unquestionably an interest in land that existed at the date of confirmation of the order.  I can see no possible basis for saying that, although HSB had this interest in the land, it was not “interested in the land” within the meaning of section 107.  The words “a person interested in the land” include a person with an interest in the land: see Pennine Raceway Ltd v Kirklees Metropolitan Borough Council [1983] 1 QB 382, per Kerr LJ at 394.  Section 107 is not expressed to be limited to interests in possession nor is there anything that would imply that it is so limited.  There is no discernible reason for depriving of compensation the owner of a reversionary interest that has been depreciated in value as a direct result of the modification.  HSB is a person interested in the land, in my judgment, as is Mr Bond with his reversionary freehold.

29.        Rugby Water Board concerned the valuation of the landlords’ freehold interests in agricultural land that had been compulsorily acquired for the construction of a reservoir.  In each case there were tenancies which, in the absence of the scheme, would have been protected under section 24(1) of the Agricultural Holdings Act 1948 and could have been expected to continue.  The House of Lords (Lord Simon of Glaisdale dissenting) rejected the contention that the Pointe Gourde rule applied to the ascertainment of the nature and extent of the interests to be valued.  They held that the interests were to be valued on the basis that, at the date of notice to treat, the protection provided by the Act to the tenants did not apply because notice to quit could have been given on the ground that the land was required for use other than agriculture, that is to say, the construction of a reservoir.  The landlords were thus entitled to turn out the tenants on giving the requisite length of notices prescribed in the respective leases, and in each case the interest to be valued was the reversion as it existed at the date of the notices to treat, when it was a reversion to an unprotected tenancy. 

30.        It does not seem to me that the principle established in Rugby Water Board has any application in the present case.  It is concerned with interests that have been compulsorily acquired and the rule that notice to treat fixes the interests that are to be acquired.  I can see no justification for importing the principle into the construction of section 107, which makes specific provision for compensation for a different kind of loss.  I have noted above how limited is the application of the provisions of the 1961 Act to the assessment of such compensation.

31.        Mr Pickles placed reliance on the decision of the Court of Appeal in Trocette Property Co Ltd v Greater London Council (1974) 28 P & CR 408.  That case concerned a disused cinema let by the GLC to the claimant under a lease that at the valuation date had 11 years left to run.  An application to demolish the cinema and to erect shops on the site was refused on the basis that the site might be needed for a road improvement, and the claimants served a purchase notice, which was accepted.  There was thus a deemed compulsory purchase and the provisions of the 1961 Act applied to the assessment of compensation.  As things stood, the lease was of no value in view of the road proposal.  The case for the claimants was that in the absence of the road proposal the lease would have sold for a price that reflected the market’s expectation that landlord and tenant would reach an agreement that would enable to the site to be developed and marriage value to be realised.  The Court of Appeal accepted that this was the proper approach to the valuation of the claimant’s interest.  The majority of the court (Megaw and Lawton LJJ) based their conclusion on section 9, which required there to be left out of account any depreciation in the value of the lease that was attributable to the fact that an indication had been given that the land was likely to be acquired by an authority with compulsory purchase powers.  In terms of what it decides, therefore, that case is of no assistance to Hanson’s case because, as I have said, section 9 is not applied for the purpose of assessing compensation under section 107 of the 1990 Act.

32.        Under section 107 it is necessary that the loss for which compensation is sought must be “directly attributable” to the modification.  In this respect the provision contrasts with section 9 of the 1961 Act, which provides in relation to land that has been compulsorily acquired that no account shall be taken of any depreciation in the value of the relevant interest that is “attributable” to an indication of a proposal to acquire.  The question, therefore, is whether, assuming that, were it not for the modification, there was the prospect that Hanson would have been granted a new lease, the depreciation in value of its lease due to the loss of that prospect was a loss that was directly attributable to the modification.  In my view it was not.  It was only indirectly attributable to the modification.  It was the proposed modification (it is to be assumed) that led Mr Bond to enter into the lease with HSB.  But it was not an inevitable consequence of the proposed modification that he would do so or – the consideration of true relevance – that he would not grant a new lease to Hanson.  The loss of value due to the loss of the prospect of renewal was thus not the direct result of the modification.  It may have been attributable to it, but it was not directly attributable to it.  That, in my judgment, is the short answer to Hanson’s claim.

33.        It is accordingly unnecessary for me to consider the third point – whether to allow a claim by Hanson on the basis of its expectation of a new lease would expose the compensating authority to the payment of compensation twice over, both to HSB and to Hanson.  I would only say that I can see nothing in this point.  Compensation to Hanson based on the loss of the prospect of a new lease would only be awarded if the facts showed that HSB would not have been granted a lease.  Thus while HSB would be a person interested in the land for the purposes of section 107 it would have suffered no loss that was directly attributable to the order.  There would be no question of paying compensation twice over.

34.        The preliminary issue must be decided against Hanson.  In respect of none of the claims may compensation be assessed on the basis that, in the absence of the European designations and/or the modification orders, a new lease would have been granted to Hanson to allow continued working of the leasehold interest.

35.        The parties are now invited to make submissions on costs, and a letter dealing with this accompanies this decision, which will become final when the question of costs has been determined.

                                                                                    Dated 11 October 2010

                                                                                    George Bartlett QC, President