UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2014] UKUT 109 (LC)

UTLC Case Number: ACQ/91/2011

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

COMPENSATION – compulsory purchase – land adjoining widened A-road – whether land should be valued in isolation or as part of retained land – principle of equivalence  - whether elements of disturbance caused by the acquisition of land or by works – whether claim extinguished by betterment – compensation awarded at £67,008.26

 

 

 

IN THE MATTER OF A NOTICE OF REFERENCE

 

 

 

 

BETWEEN RAMAC HOLDINGS LIMITED Claimant

 

 

and

 

 

KENT COUNTY COUNCIL Acquiring Authority

 

 

 

 

 

Re: Land to the Eastern side of Ramsgate Road, Sandwich, Kent, CT13 9NQ

 

 

 

Before: Her Honour Judge Alice Robinson and P D McCrea FRICS

 

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

on

13 -17 and 21 January 2014

 

Christopher Boyle QC instructed by Lawrence Graham LLP for the claimant

Richard Honey instructed by Kent County Council for the acquiring authority

The following cases are referred to in this decision:

 

Bishopsgate Parking (No.2) v Welsh Ministers [2012] UKUT 22 (LC)

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

Cooke v SSE (1974) 27 P&CR 234

DHN Food Distributors v Tower Hamlets LBC [1976] 1 WLR 852

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

Emslie & Simpson Ltd v Aberdeen City District Council [1994] 1 EGLR 33

Harris v Welsh Development Agency [2000] RVR 49

Harvey v Crawley DC [1957] 1 QB 485

Horn v Sunderland Corporation [1941] 2 KB 26

Lancaster City Council v Thomas Newall [2013] EWCA Civ 802

Optical Express Southern Ltd v Birmingham City Council [2005] RVR 230

Newall v Lancaster City Council [2013] EWCA Civ 802

Pattle v SSfT [2009] UKUT 141 (LC)

Welford v TfL [2010] UKUT 99 (LC)

Wildtree Hotels Ltd v London Borough of Harrow [2001] 2 AC 1

 

The following cases were referred to in argument:

 

Bolton MBC v Waterworth (1981) 42 P&CR 289

Cotswold Trailer Parks v SSE (1974) 27 P&CR 219

Cowper Essex v Acton Local Board (1889) 14 AppCas 153

Esso v Secretary of State for Transport [2008] RVR 351

Inland Revenue Commissioners v Clay [1914] 3 KB 466

Inland Revenue Commissioners v Gray [1994] RVR 129

Leicester City Council v Leicestershire County Council (1995) 70 P&CR 435

London County Council v Tobin [1959] 1 WLR 354

Mountview Estates v Enfield LBC (1969) 20 P&CR 729

Penny v Penny (1867-68) LR 5 Eq 227

Pentrehobyn Trustees v National Assembly for Wales [2003] RVR 140

Priestman Collieries v Northern District Valuation Board [1950] 2 KB 398

Pyrah (Doddington) v Northants CC [1983] RVR 240

Railtrack v Guinness [2003] RVR 280

Rugby Joint Water Board v Foottit & Shaw-Fox [1973] AC 202

Transport for London v Spirerose [2009] 1 WLR 1304

Trocette Property v GLC [1974] RVR 306

Urban Edge v LUL [2009] UKUT 103 (LC)

Walton v IRC [1996] RVR 55

Waters v Welsh Development Agency [2004] 1 WLR 1304

Wrexham Maelor BC v MacDougall [1993] 2 EGLR 23

 

DECISION

Introduction

1.           This is a reference to determine the compensation payable by Kent County Council, (the acquiring authority), to Ramac Holdings Limited (the claimant) following the compulsory purchase of land to the Eastern side of Ramsgate Road, Sandwich, Kent, CT13 9NQ.  The claimant ‘owned’ (see paragraph 2 below) the freehold interest in a site of approximately 61.5 acres to the east of Ramsgate including the rights land Road (the site).  The site can be conveniently split as being that which was acquired (the reference land), that over which rights were proposed to be acquired (the rights land), and the remainder (the retained land). The reference land and the rights land were subject to the Kent County Council (East Kent Access Phase 1C) Compulsory Purchase Order 2004 (the CPO).  The Order was confirmed by the Secretary of State on 10 March 2005.  Notice to Treat and Notice of Entry were given on 4 August 2005.  The acquiring authority took possession of the reference land on 18 August 2005, which is the valuation date. 

2.           Although the claimant is Ramac Holdings Limited, the freehold of the reference land was owned by Ramac Holdings (Trading) Limited and part of it was let to Ambrosetti (UK) Limited (Ambrosetti). All three companies are under common control and ownership, the precise details of which it is not necessary to explore. The parties entered into a deed dated 9 January 2014 (the deed) pursuant to which they agreed that the claimant could recover compensation as if the reference land had been owned by the claimant and for losses suffered by Ramac Holdings (Trading) Limited and Ambrosetti as if they had been losses suffered by the claimant, clause 1.2.

3.           Mr Christopher Boyle QC of counsel appeared for the claimant and called Mr Michael Hart who gave evidence of fact, and three expert witnesses: Mr Ian Roberts MCIHT (highways), Mr Huw Edwards MSc MRTPI (planning), and Mr James Winbourne BSc MRICS (valuation).

4.           Mr Richard Honey of counsel appeared for the acquiring authority and called Mr Christopher Hatcher who gave evidence of fact, and also three expert witnesses:  Mr Gary Heard MSc BEng (highways), Mr Michael Goddard BA DipTP DMS MRTPI (planning), and Mr Colin Cottage BSc MRICS IRRV (valuation).

Facts

5.           The parties produced a statement of agreed facts and issues in dispute, and three expert witness statements of agreed facts: between Mr Roberts and Mr Heard (the highways experts’ agreement), between Mr Edwards and Mr Goddard (the planning experts’ agreement), and between Mr Winbourne and Mr Cottage (the valuation experts’ agreement).  From these together with the evidence and our accompanied inspection of the reference land, retained land and some of the comparables on 29 January 2014 we find the following facts.

6.           The CPO was made to enable construction of Phase 1C of the East Kent Access Project (the scheme). The environmental statement for Phase 1C summarised the principal objectives and benefits of the scheme, which in so far as relevant to this reference, were:

“i….

ii To provide a safer route on the A256 between Thanet and Sandwich by providing a roundabout at the accesses to the Richborough Port area and the former power station site together with left in, left out access only to other businesses and property along the route.

iii To provide an improved route to existing businesses and vacant sites along the route of the A256 along the Sandwich Corridor, which will attract new businesses to the area.

iv To provide a dedicated route for cyclists and pedestrians either side of the A256 to encourage cycling and walking to work as well as encouraging an increase in such leisure activity.

v Improved visual improvement (sic) to the corridor consistent with the access to a major business like Pfizer, entry to Sandwich and to encourage development of the corridor.”

7.               The site comprised an area of land of 61.5 acres or thereabouts, the majority of which was flat, and surfaced with asphalt, concrete or colliery shale.  The northern end of the site was occupied by a relatively large modern commercial building that provided offices, workshops and storage accommodation.  There was a smaller storage building with ancillary office accommodation situated to the central section. Along the western boundary of the site adjacent to the A256 there was a strip of landscaping comprising trees and shrubs about 10m in width.

8.               The reference land (as amended by agreement) comprised land extending the full length of the western edge of the site, adjoining the A256 Ramsgate to Dover Road. Almost the entirety of the reference land lay outside the fenced area of the site and comprised either access roads to the site or land covered by scrub and trees forming part of the 10m landscaping strip. There remains on the western boundary of the retained land adjacent to the reference land part of the strip of landscaping of varying width.

9.               The parties agreed that the reference land was to be those parts of the site to be acquired under the CPO, together with other land to be acquired, but that some of the original CPO land had not been acquired and had been retained by the claimant. The deed gave effect to this agreement, amending the area of the reference land.  For the purposes of this reference the original plot numbers have been retained. The reference land therefore comprised plots 12a, 12b, 12c, 13 and 16.  The acquiring authority also obtained rights over the rights land – comprising plots 17 and 18.  However the rights were not exercised and the parties agreed that any compensation attributable to those rights was de minimis.

10.            An agreed amended description of the plots making up the reference land was as follows, travelling south to north:

a.                   Plot 12a – 1,942m². Part of scrub, trees and access road on the east side of the A256 extending from 1,000m north of the waste paper depot to the access 225m south of the access to Ambrosetti.  Owner: Ramac Holdings (Trading) Ltd, Lessee: Inchcape Estates Limited (Inchcape).

b.                   Plot 12b - 848m². Part of scrub and trees on the east of the A256 extending from 225m south of the access to Ambrosetti to 50m south of the access to Ambrosetti.  Owner: Ramac Holdings (Trading) Ltd, Lessee: Inchcape.

c.                   Plot 12c - 427 m².  Part of scrub and trees on the east of the A256 extending from 50m south of the access to Ambrosetti to the access to Ambrosetti.  Owner: Ramac Holdings (Trading) Ltd, Lessee: Inchcape.

d.                   Plot 13 – 1,083 m².  Part of scrub, trees and the access to Ambrosetti on the east of the A256.  Owner: Ramac Holdings (Trading) Ltd, Lessee: Inchcape.

e.                   Plot 16 – 3,409 m².  Part of scrub and trees east of the cycleway on the east of the A256 extending 235m north of the Ambrosetti access.  Owner: Ramac Holdings (Trading) Ltd, Lessee (of at least part): Ambrosetti.

11.         The total land taken was therefore 7,709 m² (1.9 acres or thereabouts).

12.         As will be evident from the above, at the valuation date the site was subject to two leases.  Approximately 20 acres of the northern part of the site was let to Ambrosetti, for a term of 7 years from 1 July 2002, expiring on 30 June 2009.  The rent passing at the valuation date was £318,000 per annum.  As indicated above, Ambrosetti were and are a Ramac group company.

13.         Approximately 33.4 acres of the southern part of the site was let to Inchcape, for a term of 35 years from 29 September 1981 expiring on 28 September 2016.  The rent passing at the valuation date was £375,975 per annum.  Inchcape were not in occupation at the valuation date and had sublet part of their demise to Associated British Ports for the purpose of storing trailers and vehicles impounded by HM Customs.  Inchcape had made some overtures to the Ramac group to surrender the lease but these had not been accepted.

14.         The remaining 8.1 acres or thereabouts largely comprised wharf land running along the whole of the eastern boundary of the site adjoining the river Stour, a large depressed ditch and sluice area running diagonally across the northern part of the site, land to the west of the Ambrosetti plot between it and the A256 together with an access road to the wharf which separated the Ambrosetti and Inchcape plots.

15.         To the north of the site lies a petrol filling station. The eastern boundary is marked by the river Stour. To the south of the site was a plot known as the Timberlake land. Shortly before the hearing the parties agreed that the site benefitted from a right of way over the Timberlake land, to the A256, but that right had not formally been exercised at the valuation date. At the valuation date there was no physical access through the Timberlake land from the retained land, nor is there now.

16.         On the opposite, western, side of the A256 was the site of the former Richborough power station, (the power station site) which at the valuation date was closed and had been identified in the scheme as requiring redevelopment.

17.         Prior to the Phase 1C works the A256 passing the site was a two way single carriageway road with wide verges and a shared footway/cycleway along the eastern side of the road adjoining the site. It was subject to the national speed limit of 60mph. The main access to the site was a priority junction located at the point of the access road which separated the Ambrosetti and Inchcape plots. All turning movements were permitted and there was a right turn lane provided on the A256 for right turns into the site. There was a further similar access to the south serving only the Inchcape plot.

18.         Following completion of the scheme works, the A256 was made dual carriageway between a roundabout to the south adjacent to a large site owned by Pfizer and a new roundabout at the point of the main site access.  This new four-arm roundabout served the site from its eastern arm and the power station site from its western arm.  The former southern access to the site was made “left in, left out” only.  The speed limit on the A256 was reduced to 50 mph.

19.         As part of the scheme works, a new access was created into the Timberlake site, with some input from Ramac, although the nature of that input is disputed.  It is common ground that an access at that location was implementable in any event in the no scheme world, and planning consent for it was in place.

Issues

Compensation for land taken

20.            The first and principal issue between the parties was how the reference land should be valued.  For the claimant Mr Winbourne said that the reference land was part of the site, and should be valued as industrial land at a rate of £250,000 per acre, discounted for the lease to Inchcape.  On this basis he valued the reference land at £383,557.  Mr Cottage contended that the reference land should be considered in isolation and that given its size, shape, permitted use and the presence of leases, it should be valued as scrubland or woodland adjacent to a road at a rate of £20,235 per acre.  He valued the reference land at £38,545. In the alternative, should the Tribunal adopt an industrial method of valuation, he contended that the reference land should be valued at a rate of £150,000 per acre.

 

Injurious affection

21.            Secondly, the claimant claimed injurious affection to the retained land of £146,274.45 being the cost of replacing the element of the tree screen that was taken by the scheme.  The acquiring authority considered that no injurious affection had been suffered as the claimant had not replanted the tree screen and had not therefore incurred the cost of doing so. Further, the loss of the reference land has not resulted in any diminution in the value of the retained land.

Disturbance

22.             Thirdly, the claimant claimed the following disturbance items (as amended during the hearing, and net of VAT as the claimant has confirmed that VAT is not claimed):

(1)  Additional security: £4,690.56

(2)  Signpost: £2,607.00

(3)  Transporter Pads: £11,802.50

(4)  Additional costs of road testing: £23,630.98

(5)  Directors and staff time: £9,527.10

Total: £52,258.14

23.            The acquiring authority contended that these amounts were not payable for various reasons explored below as well as on the grounds of betterment.

Pre-reference costs

24.            Fourthly, the claimant claimed pre-reference professional costs which, following adjustment during the hearing and net of VAT, comprised;

a)     Reece-Jones: £506.20

b)     Winbourne Martin French £3,246.00

c)     Lawrence Graham £9,158.00

 

Total: £12,910.20

25.            The acquiring authority did not dispute these items of compensation but contended they were not payable by virtue of betterment.

Betterment

26.            Fifthly, the acquiring authority contended that in any event the value of the retained land had increased as a result of the scheme to the extent that the claimant’s claims for land taken, injurious affection, disturbance and pre-reference costs were all wholly offset by betterment, resulting that nil compensation should be awarded.

Statutory Provisions

27.            Following the completion of the deed, the parties agreed that the claimant could properly claim all heads of compensation in the reference, subject to establishing entitlement and quantum in fact and law.  It was common ground that these heads of compensation could include valuation of the land taken under rule (2) of s.5 of the Land Compensation Act 1961, and severance and injurious affection under s.7 of the Compulsory Purchase Act 1965.

28.            In respect of compensation payable for land taken, s.5 of the Land Compensation Act 1961 provides that:

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

 ….

(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.

….

(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.”

29.            In respect of severance and injurious affection, s.7 of the Compulsory Purchase Act 1965 provides that:

“In assessing the compensation to be paid by the acquiring authority under this Act regard shall be had not only to the value of the land to be purchased by the acquiring authority, but also to the damage, if any, to be sustained by the owner of the land by reason of the severing of the land purchased from the other land of the owner, or otherwise injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.”

30.            The acquiring authority relied upon s.261 of the Housing Act 1980 in support of their contention of betterment.  This provides, in so far as relevant here,  that:

 “(1)   …..in assessing the compensation payable in respect of the compulsory acquisition of land by a highway authority ….. the Upper Tribunal—

(a)     shall have regard to the extent to which the remaining contiguous lands belonging to the same person may be benefited by the purpose for which the land is authorised to be acquired;

…..

 

(6)    Section 5 of the Land Compensation Act 1961 shall, in its application to compulsory acquisition by a highway authority under a provision to which subsection (1), (3) or (5) above relates, have effect subject to subsection (1), (3) or (5) as the case may be.”

Issue 1 - How the reference land should be valued

Mr Cottage’s “Amenity Land” Approach

31.        Mr Cottage considered that having regard to the size, shape, and the use of the reference land, as well as the leases to which it was subject, any hypothetical purchaser at the valuation date would have considered that it had, in isolation, little or no potential to be used for any practical purpose or potential to produce any form of financial benefit other than speculatively in the long term.

32.        Accordingly, he believed that the evidence of the price that the reference land might have sold for on the open market at the valuation date could best be obtained from transactional evidence involving the sale of similar strips or plots of land adjacent to highways which had limited or no obvious potential to provide income or material benefit on their own in the short or medium term.

33.        Mr Cottage produced a schedule of comparables comprising seven transactions of plots of land in Kent ranging from 0.185 acres to 1.1 acres, and a site of 10.14 acres which did not sell at auction. The seven transactions took place between November 2004 and September 2005 at prices ranging from £11,538 per acre to £48,649 per acre. Having made some adjustments for size, Mr Cottage adopted a rate of £20,235 per acre which, on the adjusted agreed site area of 7,709 m², equated to a value of £38,545.

34.        Mr Winbourne accepted that should the Tribunal consider Mr Cottage’s approach to the valuation to be correct, valuing the reference land as roadside or amenity land, he took no issue with Mr Cottage’s valuation of £38,545. Accordingly, no further analysis of the roadside comparables or Mr Cottage’s amenity valuation was required during the hearing.

Mr Winbourne’s “Industrial Land” approach

35.        Mr Winbourne’s approach to the valuation was based upon the premise that the reference land formed part of a large industrial site, and should be valued accordingly, pro rata. He drew comparable evidence from sales of other industrial sites in Kent and applied a rate of £250,000 per acre to the reference land. In part, Mr Winbourne discounted this capital value to reflect the Inchcape lease on the basis that the purchaser would not obtain possession of that land until the end of the lease some 11 years after the valuation date.

36.        In the event that the Tribunal found that an industrial land valuation was appropriate Mr Cottage took a different approach to the comparables and he adopted a rate of £150,000 per acre. He did not otherwise take issue with Mr Winbourne’s valuation.

37.        The valuers agreed that there was a general paucity of evidence and that sales of bare industrial land were few and far between.  The valuers had inherited a schedule of nine comparables from previous advisors, to which they had added three.  Helpfully, these 12 were reduced by agreement at the hearing to eight transactions.. We found it slightly surprising that the valuers were unable to reduce the list further, given that it was common ground that some of the transactions had little relevance.

38.        At the parties’ invitation we inspected the Stevens and Carlotti site (comparable number 1), Manston Business Park (2 and 3), Shearway Business Park (5) and Westwood Industrial Estate (9) after inspecting the reference and retained land.

39.        In his expert report Mr Winbourne considered that the best comparable was the sale of land at Westwood Industrial Estate, Margate. He said that the site was sold, close to the valuation date, at a price equating to £406,977 per acre. He considered that the comparable should be included in a basket of evidence, accepting that the purchase price did not reflect bare industrial land as there were some buildings on the site when it was sold. 

40.        Mr Cottage was sceptical of the usefulness of Westwood Business Park as a land comparable owing to the presence of a large building on the site – which he said had been split and refurbished in part by the developer purchasers.  He did not consider the sale represented reliable comparable evidence.

41.        In respect of the two sales of land at Columbus Avenue, Manston Business Park, Mr Winbourne said that the two plots were the first to be sold on the industrial estate, to purchasers wishing to be close to the freight airport. He considered the sites to have a light industrial use in a residential neighbourhood, as opposed to the subject site which had an existing use for surfaced car storage. He considered that the evidence related to a different “destination” location close to Manston airport, whereas the subject site was better located off the existing trunk road between the ports.  During cross examination he accepted that Manston was closer than the subject site to Kent International Airport, the M2 and the Dartford crossing, and that in location terms the reference land was only closer to Dover. 

42.        Mr Cottage considered that Manston would provide higher values per acre than the subject site owing to its location adjacent to the airport and close to the A299 dual carriageway. 

43.        At Shearway Business Park, Mr Winbourne said there were transactions supporting £200,000 per acre for small development plots, which were not particularly comparable to the surfaced subject site.  In his evidence he said that they were a poorer comparison to the subject land, but accepted in cross examination that the sites were small and closer to the channel tunnel and the Dartford crossing than the reference land.  Mr Cottage considered that given that the transactions were in respect of serviced plots in a better location, sold during a rising market, they were consistent with his valuation of the subject land. 

44.        Mr Winbourne considered the sale of land at Mountfield Industrial Estate (6) to be of less assistance owing to its remoteness from the subject site, and being in an inferior location.  Mr Cottage did not believe Mountfield to be significantly less accessible, and considered the transaction to be consistent with his valuation.

45.        In respect of plots 3 and 12 Whitecliffs Business Park (7), Mr Winbourne commented that the transactions showed a rate of £228,000 per acre, some five years after the valuation date, in a poorer market.  He gave it limited weight but he considered that it had some merit for inclusion within the basket of evidence.  Mr Cottage also placed little weight on the comparable.

46.        As regards the sale of 0.44 acres at Western Road, Deal (11), at £225,000 per acre, Mr Winbourne considered that this was similar to the subject site, being surfaced open storage land. But, he said, the site had been on the market for some years, the sale was some five years after the valuation date in a more depressed market, and he drew limited assistance from it.  Mr Cottage noted that whilst the transaction took place five years after the valuation date and it was in respect of a small regularly shaped yard, it was not inconsistent with his valuation.

47.        Mr Winbourne accepted that the transaction at Westwood Industrial Estate could be considered to be an outlier in terms of price, and if it was excluded the highest comparable showed a rate of £228,328 per acre.  He also accepted that the majority of the comparables were much smaller than the retained land and reference land combined. 

48.        It was not in dispute that the sale of the Stevens and Carlotti site (1) in August 2008 for £176,471 per acre was a significant comparable owing to its location on the opposite site of the A256 to the reference land.  Mr Winbourne considered the reference land to be better than Stevens and Carlotti, with planning permission and not of irregular shape.

49.        Mr Cottage considered the sale of the Stevens and Carlotti site to be the most relevant comparable because of its proximity to the site.  The valuers considered how the transaction should be adjusted for time, three years after the valuation date, if at all.

50.        Mr Winbourne said that there was no uplift in industrial values in Kent over the period from 2005 to 2008. He said that recessionary factors were at the forefront of everybody’s mind although in his expert report he accepted that at the valuation date values in 2008 would not be known and the market would have been more bullish looking forward.

51.        Mr Winbourne submitted extracts dealing with industrial and distribution performance from the published Kent Property Market reports from 2005 to 2008.  These reports appear to have been compiled with information and data provided by a large variety of public and private sector organisations.

52.        The 2005 report (dealing with 2004/2005) indicated that the industrial market remained buoyant with rents increasing to December 2004 and average industrial yields Kent at just over 7%. The 2006 report showed rental growth plateauing and that industrial yields continued to fall in the south-east to around 6.5%, but it did say that the industrial market had remained buoyant.  The 2007 report said that the industrial sector had cooled but had not adversely affected continued investment in the county. Industrial rental growth was against static at just over 1% and yields continuing to fall to around 6%.

53.        The 2008 report showed marginal increase in industrial rental growth, but that average industrial yields and started to rise between December 2006 and December 2007.  The 2009 report was the first to show the real impact of the recession, with capital growth down by 26.1% in 12 months, a reduced demand for industrial space, no rental growth and restricted prospects. Yields had increased dramatically, standing at around 10% by December 2008.

54.        Mr Winbourne also submitted data from the Valuation Office Agency (VOA) which suggested that typical industrial land values were £825,000 per hectare (£333,877 per acre) for Canterbury as at 1 January 2006 – he accepted in cross examination that Canterbury provided data that was the closest to the subject land from that available.

55.        Mr Cottage also relied upon VOA data – using the same table as Mr Winbourne but at two dates: July 2005 and July 2008.  In comparison with Mr Winbourne’s £825,000 per hectare for Canterbury for January 2006, the VOA gave £800,000 for July 2005 and £950,000 for July 2008 – a rise of approximately 18% in that period.

56.        Both valuers, correctly, identified that these sources can only give a broad brush guide to trends in value, and that the VOA evidence could be based on a limited amount of transactions.  Neither valuer suggested that, on an industrial basis, the reference land had a value at the level described in the VOA data, but Mr Cottage used the data to provide evidence of a trend in value.

57.        Mr Winbourne accepted that all of the comparables were vacant at the time of sale, in contrast to the retained land where leases were in place.  However he said that Inchcape were not in occupation at the valuation date, and that in respect of the Ambrosetti land there was a relationship between the landlord and tenant which would enable the Ambrosetti plot to be sold with vacant possession.  He accepted that the majority of notional purchasers of the retained land would be buying as an investment.

Issue 1 - Discussion and conclusions

58.        The key issue between the parties is the basis on which the reference land should be valued.

59.        Mr Honey submitted that rule (2) required the reference land to be valued on the basis of what it would fetch in the open market if sold by a willing seller to a willing buyer in its condition on the valuation date. The reference land was a strip of scrub and trees adjacent to a highway that had little or no potential for any active use or development and would have been purchased as such. He relied upon Mr Winbourne’s evidence in cross examination that the land acquired could fairly be described as a strip of land adjacent to a highway, that you could not construct a building on it, put it to any active use to generate income or use or develop it on its own.

60.        Mr Boyle submitted that, irrespective of the way that the claim was made, the Tribunal has as an overarching goal to seek to put the claimant in a position that is no worse and no better than if the scheme had not occurred.  He referred to Horn v Sunderland Corporation [1941] 2 KB 26, Harvey v Crawley DC [1957] 1 QB 485, and Director of Buildings and Landv Shun Fung [1995] 2 AC 111. Throughout the process one is seeking to establish equivalence and any hypothetical circumstances adopted had to be as close to the real world as possible consistent with the statutory constraints on the approach to valuation.

61.        Mr Boyle submitted that the market price for industrial land is approached on the basis of a price per acre. The reference land had been planted with trees pursuant to a requirement of planning permission for the site in 1980 that a 10m wide landscaping strip be provided. It was just as much a part of the industrial site as the rest of it which provided a variety of activities e.g. access roads, buildings, hardstanding. This was the approach adopted by the acquiring authority when paying compensation for plots 2 and 15 of the CPO as well as in this case until its Reply to the claimant’s Re-Amended Statement of Case dated 2 November 2012. The hypothetical buyer would have valued the reference land having regard to the market value of industrial land, discounted in respect of the land leased to Inchcape to reflect the fact that vacant possession of that would not be obtained until 2016. This was the most straightforward way of achieving equivalence. The alternative was to treat the retained land as having diminished in value by the industrial value of the reference land on a claim for injurious affection.

62.        In our judgment the effect of rule (2) is clear. The reference land must be valued as if it alone was being sold on the open market by a willing seller. This is a hypothetical basis because the seller – the claimant – may be anything but willing, particularly if the reference land forms an important part of other land retained by it. Insofar as the claimant suffers a loss because of a diminution in the value of retained land then this will form a claim for compensation for severance and/or injurious affection. It does not justify adopting an artificial approach to valuing the reference land as if is still formed part of a larger whole.

63.        It was common ground on the evidence that if valued in this way then the reference land should be valued on the basis of roadside or amenity land and not on the basis of industrial land.

64.        On a roadside or amenity land basis, Mr Winbourne took no issue with Mr Cottage’s comparables or valuation and on this basis we find that the value of the reference land at the valuation date is £38,545 as contended for by Mr Cottage.

65.        However, in the event that we are wrong as to the correct approach to rule (2) we deal with the value of the reference land if it were valued on an industrial land basis. It is common ground that there was a general dearth of comparable evidence upon which to draw. Both valuers have adopted a fairly broad brush approach, and neither approach is immune from criticism.

66.        Of the eight comparables identified at the hearing, we were asked to inspect five. We considered this to be a sensible approach as we drew very limited assistance from the land at Mountfield Industrial Estate, New Romney, Whitecliffs Business Park Dover or Western Road, Deal. Mountfield Industrial Estate was, as Mr Winbourne pointed out, a fairly remote location not comparable to the subject site. The transactions at White Cliffs Business Park and Western Road were over five years after the valuation date, again providing very limited assistance.

67.        Of the remaining five, we place little weight on the sale of the land and buildings at Westwood Industrial Estate. Mr Winbourne accepted that this transaction was an outlier, and to our mind the presence of around 130,000 ft.² of buildings within the sale (many of which appeared from our inspection to be still standing and occupied) distorts the transaction to the extent that it cannot be used as a comparable with any degree of confidence. 

68.        We also placed little weight on the transactions at Shearway Business Park.  There was scant information available as regards the individual transactions, but in any event it was clear, as Mr Winbourne accepted, that Shearway Business Park was a better location than the subject site, close to the M20, and likely to generate higher values per acre.  We found that it had little comparability with the subject location.

69.        We place some weight on the two transactions at Manston Business Park, one of which, the sale to Air Atlanta at a price equating to £172,707 per acre, was only a few months prior to the valuation date. We consider Manston Business Park to be a higher value location than the subject site for the reasons given by Mr Cottage, and note that the purchaser was likely to want to be located next to the airport. 

70.        It was not in dispute that in terms of location the former Stevens and Carlotti site was the best comparable.  Mr Winbourne considered that it had a more restricted planning consent, for light industrial, than the reference land’s car storage use.  However there was no evidence before us to show that this had a material effect on value, nor that the Stevens and Carlotti site would not gain a similar consent to the retained land. He also considered that the Stevens and Carlotti site was of sufficient irregular shape to hinder development.  From our site inspection we did not consider that to be the case.

71.        The sale was three years after the valuation date and both valuers went to some lengths to explore whether values had moved between those dates and if so to what extent. We now consider how the Stevens and Carlotti transaction should be adjusted for time.

72.        The Kent Market Report data is of some limited assistance. However the reports dealt mainly with rents and yields, rather than the sale of industrial sites.  They show that by 2008 yields were hardening and rents static, which on an investment basis would ordinarily lead to a fall in capital values. We noted, however, that they did not reflect the general impact of the recession until the 2009 Report. We accept Mr Winbourne’s observation that there may be a lagging effect, but the Kent Market Report for 2005 described the industrial market as “buoyant”; the report for 2006 said that rental and capital growth, whilst staying positive, had slowed; and the report for 2007 said that although the industrial sector has cooled “this has not adversely affected continued investment in the county.” This does not support his case that capital values were not rising.

73.        The VOA data is also of limited assistance.  The valuers accepted that the data for Canterbury was the most relevant, and the increase in values from July 2005 to July 2008 was 18%.  We accept that industrial land values rose between the two dates, but do not consider the evidence to be sufficiently robust to allow us to simply discount the Stevens and Carlotti sale price by 18% to arrive at an equivalent value at the valuation date, as this must be considered in addition to the other evidence submitted. 

74.        An 18% reduction, on loose VOA data evidence, would result in a rate of £150,000 per acre or thereabouts as contended for by Mr Cottage.  However we have also borne in mind the sale at Manston, at £172,707 per acre a matter of months before the valuation date.  In our view, Manston is a slightly better location than the subject site, but we do not consider the land at Manston to be £22,707 per acre (or 15%) better than the subject location. We consider that Manston was approximately £10,000 per acre more valuable than the subject location at the valuation date.

75.        Having regard to all of the comparable evidence, we consider that the value of the reference land, on an industrial basis, lies at £160,000 per acre, or £39.54 per sqm. 

76.        Having arrived at the industrial rate per acre, this must be discounted to allow for the Inchcape lease. Mr Cottage did not suggest that there should be any discount for the Ambrosetti lease and this is consistent with the agreement between the parties in the deed. Otherwise the claimant would not recover the full value of the reference land and it would be necessary to do two compensation calculations, one for the claimant as freehold owner discounted to reflect the Ambrosetti lease and another to reflect the loss to Ambrosetti as lessee. Further, Mr Cottage did not take issue with Mr Winbourne’s method of deferring on a present value basis using a deferment rate of 6% and a discount period of exactly 11 years, and we adopt it as below:

Plots 12a – 12c: 3,217 sqm @ £39.54 per sqm: £127,200

PV £1 for 11 years @ 6% 0.5267

£66,996

 

Plots 13 &16: 4,492 sqm @ £39.54 per sqm: £177,614

£244,610

(say) £245,000

77.        The parties agreed that Plot 13 was affected de minimis by the Inchcape lease, and that no value was to be attributed to Plots 17 and 18.

78.        We therefore determine that, should the reference land be valued on an industrial basis, the open market value for compensation purposes would be £245,000.

Issue 2 – Injurious affection

79.        Mr Honey submitted the only claim made for injurious affection was the cost of replanting on the retained land the trees lost on the reference land. The amount claimed has not been incurred, the landscape strip has not been replanted to date and the claimant has not suffered a loss. Further, as a matter of law, the owner of retained land could not claim for the costs of overcoming the loss of the land acquired, only the diminution in the value of the retained land, see e.g. Cooke v SSE (1974) 27 P&CR 234. He submitted that the loss of the reference land had not resulted in any diminution in the value of the retained land.

80.        Mr Boyle submitted that should the Tribunal adopt the approach of valuing the reference land as a strip in isolation, then it would be necessary to also value the retained land on a before and after basis to ensure that the principle of equivalence was achieved. We agree that, since we have adopted Mr Cottage’s valuation principle in respect of the reference land, the claimant’s claim for injurious affection must be considered in the light of the way in which compensation under rule (2) for the land taken has been calculated. Therefore we have not confined ourselves to the issue of the tree screen when considering injurious affection.

81.        Mr Boyle did not dispute that the correct approach was to consider whether there had been any diminution in value of the retained land. He relied upon Mr Winbourne’s evidence that the difference between a before and after valuation of the site with and without the reference land would reflect the industrial land value of the reference land and a purchaser of the retained land would also deduct the cost of the landscaping required as a result of loss of the reference land.

82.        The questions therefore are (1) if the reference land is valued as a strip of amenity land and the claimant compensated on that basis, what is the diminution in value of the retained land, if any; and (2) should the claimant be compensated for the cost of tree planting, even though this cost has not been incurred, and if so at what amount? As the answer to the first question is to some extent bound up with the answer to the second question we consider them together.

83.        The tree screen which existed prior to the CPO was planted pursuant to condition (vii) of a planning permission dated 28 February 1980 for the storage and distribution of motor vehicles on the site which required “a substantial belt of tree and shrub planting 75 feet in depth” in order to ““break up” the impact of the use.” There is no obligation in the condition to reinstate the landscaping if for any reason it is lost.

84.        At the valuation date the relevant development plan was the Dover District Local Plan, policy AS14 of which provided that, in an area which included the site, the local planning authority will permit B1/B2/B8 uses provided certain conditions are satisfied. The first condition is that:

“all development provides for the visual upgrading of the A256/Ramsgate Road, including structural landscaping at the main site boundaries and a 10 metre wide landscape buffer zone fronting the A256/Ramsgate Road”

Policy AS14 also went on to indicate that renewable energy and noisy sports development would also be permitted on the site subject to there being no conflict with nature conservation objectives. 

85.        There was considerable debate between the expert planning witnesses as to what other development might be permitted on the site in accordance with other policies of the Local Plan and the extent to which the local planning authority would insist on a 10m wide landscape buffer zone being provided. We do not consider it necessary to resolve those issues. For present purposes it is sufficient to note that AS14 provided strong policy support for the need for a 10m wide landscape buffer zone for the type of development most likely to take place on the site.

86.        However, there was no dispute that no such requirement could be imposed unless and until the site (or part of it) came forward for development. Further, as was stated in an email relied upon by Mr Edwards dated 15 November 2011 written by Tim Flisher, who was the head of development control at the local planning authority both then and at the valuation date:

“It might be that, given the landscaping which remains, the view would be taken when any future planning application was being considered, that this landscaping was adequate, that further landscaping within Ramac’s land was not necessary”

87.        Mr Goddard’s evidence was that the existing landscape buffer is generally no less than 10 metres wide. He did not support that assertion by reference to any survey of the landscaping but rather appeared to rely on some aerial photographs and on the ground visual assessment. We saw on the site visit that the landscape buffer is not as wide as Mr Goddard suggested. The depth of landscaping left on the western boundary of the retained land varied but, apart from around the accesses, at its narrowest points it was no more than several metres wide, even allowing for the fact that the site visit was undertaken in winter when the landscaping was not in leaf. The acquiring authority did not submit primary evidence as regards the cost of replanting. Mr Winbourne made passing reference to a figure previously suggested by the acquiring authority of £26,582.54 in his expert report (page 687 of the bundle) but there was no evidence before us in support of that. 

88.        By contrast Mr Winbourne produced a report commissioned from The Landscape Partnership (the landscape report) based on a detailed survey. The landscape report indicated that in order to re-provide a 10m planting screen, having regard to the planting that remained after the reference land had been lost, 1,930 sqm of the retained land would be required and would need to be planted up to re-provide a 10m wide landscape buffer. The Landscape Partnership’s estimated cost of replanting, which we assume to be at the date of the report (March 2012), was £146,274.45.  This included £6,695.45 of preliminaries, £23,160.00 to excavate the hardstanding, £17,370.00 of planting costs, and £45,600.00 to supply and install 570m of 2.0m high plastic coated fencing.

89.        We prefer this detailed calculation as to the amount and cost of landscaping which would be required to create a 10m wide landscape buffer in preference to the acquiring authority’s rough and unsupported assessment.

90.        However, as already noted, no further planting could be required until any development took place and it is not certain to what extent the local planning authority would insist on further planting in accordance with AS14.

91.        Mr Cottage’s evidence was that a purchaser of the retained land would principally be an investor or a property company with a long term development objective and that he would look to retain the income from the two leases. Mr Winbourne agreed that a purchaser would want to retain the income stream from the leases for as long as possible and look to development in the longer term. That is consistent with the claimant’s refusal to accept a surrender of the Inchcape lease. Further, Mr Hart said that Ambrosetti was trading successfully and at the valuation date could be expected to have continued to occupy the land after expiry of its lease in 2009. On this basis, any development of the retained land would be unlikely to take place before expiry of the Inchcape lease in 2016.

92.        There was a dispute between the parties as to whether, as a matter of law, when valuing the retained land for these purposes, you assume a hypothetical seller with no company connection to Ambrosetti. Mr Honey submitted that this was the correct approach and any valuation of the retained land had to assume the existence of the Ambrosetti lease. On the other hand, Mr Boyle submitted that there was no reason to ignore the actual characteristics of the owner. Because the claimant company controlled Ambrosetti, it could be assumed that the seller could give vacant possession by relocating Ambrosetti.

93.        However, if the site’s value in 2005 lay in its rental income then, even if the seller could give vacant possession, he would not necessarily wish to do so. Whilst Mr Hart said that this was an option open to them, the claimant did not call any evidence as to whether the relocation of Ambrosetti was practical or how much it would cost. As a matter of fact and consistent with the evidence of Mr Hart, Ambrosetti remains in occupation apparently trading successfully nearly 5 years after expiry of the lease and there is no evidence of any interest in development of any of the retained land since the valuation date. Therefore we do not consider it necessary to resolve the legal dispute because, on the evidence, whichever approach is adopted, the site would be sold with the benefit of both leases.

94.        In these circumstances the issue is therefore to what extent a purchaser of the retained land on the valuation date would pay less for it without the reference land having regard to first, the loss of the reference land itself and second, the potential future need to spend around £146,000 (calculated at 2012 prices) in order to replace landscaping lost on the reference land as and when any development took place. Having regard to the totality of the evidence, we consider that the claimant has failed to show that the loss of the reference land has resulted in any diminution in the value of the retained land.

95.        Mr Winbourne’s expert reports do not consider whether, if Mr Cottage’s approach to valuation of the reference land is adopted, the retained land has suffered any diminution in value. In cross examination he accepted that, apart from the future cost of replanting trees and disturbance costs, the retained land had not suffered any other adverse effect. His assertion that a purchaser would deduct the cost of the landscaping and the industrial land value of the reference land from the price he would pay for the retained land without it was given orally at the very end of his evidence in response to questions from the Tribunal. It was unsupported by any other evidence and in our judgment was more in the nature of an afterthought when he realised the implications of the acquiring authority’s case.

96.        Whether one values the retained land per acre as industrial land with vacant possession or as an investment property by capitalising rental income in accordance with Mr Cottage’s valuation, it was worth at least £7.85 million (Mr Cottage’s investment valuation).  It is not necessary for us to analyse the value on a vacant possession or investment value further than that. On either basis we do not consider that a purchaser would deduct the equivalent of the 2005 value of £146,000 to reflect the need for future planting having regard to the fact that (1) such costs would not be incurred for a number of years until development took place, potentially many years, (2) there was the possibility (we put it no higher than that given the significant weight to be attached to development plan policy AS14) that no further landscaping would be required or not all the landscaping reflected in that cost and (3) a developer would anticipate the need to spend money on landscaping in any event.

97.        As to point (3), following the evidence from the highways and planning experts, it was common ground that, post scheme and owing to highways constraints, the retained land could accommodate no more than about 100,000 square metres of B1/B2 space. Mr Cottage’s evidence, which was not challenged and which we accept, is that on the basis of development costs of about £50 per square foot for 1,100,000 square feet (i.e.100,000 square metres) of B1/B2 development, development costs would be around £55 million. In that context the potential future cost of £146,000 for some landscaping (about 0.25% of development costs), which itself includes preliminaries, excavation of hardstanding and provision of fencing, would make no difference whatsoever to the amount a purchaser would pay for the retained land.

98.        Further, we do not consider that, separately from the loss of landscaping, the loss of the reference land has made any difference to the value of the retained land. There is no evidence that compulsory acquisition of the reference land has made any difference to the existing uses on the retained land nor has it resulted in any reduction of rent. Nor is there any evidence that loss of the reference land will result in a loss of developable area. Of course, the developable area has reduced by the loss of the reference land (7,709 square metres) and if the 10m wide strip of landscaping were re-provided the developable area would reduce by a further 1,930 square metres, 9,639 square metres in total. However, the retained land is a very large site, 24.12 hectares or thereabouts, and Mr Goddard’s undisputed evidence was that it could physically accommodate 150,000 square metres of single storey development. Having regard to the fact that highways constraints mean that only a maximum of 100,000 square metres of B1/B2 floorspace could be provided, it follows that the loss of 9,639 square metres of land will not make any difference to the amount of development which the retained land can accommodate.

99.        We accept that, in order to value land compulsorily acquired under rule (2), it is usual to analyse comparable transactions to identify a value per square foot for the land which is then applied to the area of land acquired. However, in our judgment it is not necessarily appropriate to carry out the same exercise on a before and after basis in order to demonstrate a diminution in the value of retained land by reason of part of it having been compulsorily acquired. Whether that is the correct approach will depend on the evidence. But, the issue at the end of the day under s.7 of the 1965 Act is whether the claimant can demonstrate that the retained land is in fact worth less as a result of the loss of the land acquired.

100.    For all the reasons given we do not consider that the claimant has established that loss of the reference land and the landscaping on it has resulted in any diminution in value of the retained land.

Issue 3 - Disturbance

101.    The claim for compensation for disturbance falls under the following heads:

(1)  Additional security

(2)  Signpost

(3)  Transporter pads

(4)  Road testing

(5)  Director’s time

Additional security

102.         Mr Hart said that security was very important to the claimant as vehicles worth up to £25 million were stored on the Ambrosetti land. As well as security fencing the land is protected by security cameras and 24 hour security personnel. When the acquiring authority started to remove some of the tree screen on the reference land the retained land became more exposed to the passing vehicles and pedestrians and by agreement a crash barrier was erected at the claimant’s expense (£1,267 plus VAT) for which it had not been reimbursed. However, during the hearing the claimant was provided with evidence that the cost had been paid and after conducting further enquiries the claimant agreed that it had in fact been paid for this work.

103.         Later, when the acquiring authority relocated the southern boundary Mr Hart said it was necessary to temporarily remove a security pole carrying electricity and security cameras. During this period the claimant incurred the expense of hiring additional security personnel at a total cost of £2,410.56 net of VAT evidenced by 4 invoices. For some reason this claim was calculated before the hearing on the basis of only one of the invoices for additional security personnel. When the omission was realised the claimant sought to add the 3 further invoices. All 4 of the invoices had been produced in evidence and no objection was taken by the acquiring authority to this recalculation.

104.         In addition a crash barrier was erected for which two costs were claimed: £850 for a crash barrier and £1,430 to fabricate support posts for the crash barrier. These figures are exclusive of VAT.  Photos of the crash barrier and posts in situ were produced. There was an invoice for the support posts but none relating to the £850 claimed for the crash barrier. Mr Hart clarified that the crash barrier was one the claimant had acquired when the power station opposite shut down in the 1990’s. When it was put to him that the claimant had not suffered a loss as a result of using materials it already owned Mr Hart said it had incurred a cost when the barrier was purchased and incurred an accounting loss when it was used. However, he produced no figures or documentary evidence to support his case.

105.    Mr Hatcher’s witness statement acknowledges that during the works safety fencing was removed from part of the southern boundary of the Ambrosetti land and taken off site by mistake. Subsequently the acquiring authority’s contractors constructed close boarded screen fencing there. In cross examination he did not dispute the truthfulness of Mr Hart’s evidence.

106.    Mr Honey submitted that there was no evidence that the relevant invoices had been paid. Further, it was said that these costs were too remote.

107.    We are quite satisfied on the evidence that part of the southern boundary of the Ambrosetti land was left unprotected for a period of time as a result of the acquisition of the claimant’s land there. The costs claimed of dealing with the resultant security risk are a direct and foreseeable result of that disturbance, indeed they are precisely the sort of costs that could be anticipated. The invoices are contemporaneous, all relating to a short period in November 2006, and many have an Ambrosetti stamp with annotations including a signature against a box marked ‘authorised.’ We accept the evidence that these costs have been incurred.

108.    However, we are not satisfied on the evidence that the provision of the crash barrier itself resulted in any loss to the claimant. It may have done, but the evidence simply does not substantiate the loss or the amount claimed: there is no evidence as to where the figure of £850 came from, as to the cost incurred when the crash barrier was acquired in the form of an invoice or accounts ledger nor as to the accounting loss said to have been sustained when the crash barrier was used. While the claimant may have reasonably mitigated its loss by using its own materials it is still incumbent upon it to prove the loss suffered and it has not done so. Accordingly the claim allowed is £2,410.56 for additional security and £1,430 to fabricate support posts for the crash barrier totalling £3,840.56.

Signpost

109.    Mr Hart said that a sign was located on the reference land which was removed and the claimant claims the cost of reinstatement in the sum of £2,607.00 net of VAT. This was based on a quotation dated 28 January 2008 for a sign (£1109), the installation cost (£298) plus concrete (£350), electrics (£350) and planning costs (£500). Mr Hart said the sign had not been replaced to date but that it was the claimant’s intention to do so. The sign originally advertised Ambrosetti but had been altered to advertise a housing development in Sandwich being constructed by Quayside Homes Limited, one of the claimant’s group of companies and a wholly owned subsidiary of the claimant. Photographs of the original sign were produced. The sign had not been replaced yet because it could only be put on land leased to Inchcape which was currently sub-let and used, a situation which he acknowledged would continue until at least expiry of the lease in 2016. Further, as a result of the market downturn, the housing site had been mothballed and it had only recently been opened up again. The cost was based on quotes the claimant had obtained in 2008 from the manufacturer of the original sign. The new sign would be erected by the claimant on behalf of Quayside Homes Limited.

110.    Mr Hatcher’s witness statement confirmed that the sign had been removed from the reference land and referred to discussions about where and by whom it would be replaced. In the end it was left that the claimant would replace it themselves. He agreed in cross examination that the acquiring authority had at the time agreed it would pay for the sign to be replaced.

111.    Mr Honey submitted that no cost had in fact been incurred and was unlikely to be incurred. Further, the loss was too remote. Finally, it was submitted that any loss would be a loss to Quayside Homes Limited not the claimant. Although the acquiring authority had agreed that the claimant could claim for losses suffered by Ambrosetti and Ramac Holdings (Trading) Limited and had entered the deed which gave that effect, this did not include claiming for losses suffered by other companies in the group. This is not a case where the corporate veil may be pierced as Quayside Homes Limited did not occupy any of the reference land, see Bishopsgate Parking (No.2) Limited v Welsh Minsters [2012] UKUT 22 (LC) paragraph 124.

112.    Mr Boyle submitted that the sign belonged to the claimant and was located on the claimant’s land (or Ambrosetti’s), whatever the sign was advertising. It was a matter for claimant what use it wished to make of the sign. Mr Hart’s evidence is that claimant wished to replace the sign and would do so when it could.

113.    In principle, if an advertising board is located on land compulsorily acquired and as a result of acquisition the sign is re-erected elsewhere on the claimant’s retained land, the cost of that is plainly recoverable as compensation for disturbance, being a direct result of the acquisition and entirely foreseeable. In some circumstances prospective losses may be recovered. The whole basis of the claim for compensation in Shun Fung was that the claimant intended to relocate its business to new premises but at the date of the case had not yet done so. In order to make a claim on this basis the claimant “must have reached a firm decision… and he must be reasonably assured that he will be able to do so”; further the decision to do so must be reasonable, Shun Fung at page 128C-D. Mr Hart’s evidence is that the claimant intends to replace the sign and it will be able to do so when the Inchcape lease comes to an end. Further, in our judgment it would entirely reasonable to do so, the ability to advertise the claimant’s business being a valuable asset.

114.    As to the argument that the sign was advertising another company’s business, we accept Mr Boyle’s submission that the sign belonged to the claimant and the use which was being made of it was a matter for the owner. It was located on the claimant’s land. The fact that the claimant chose to use it to advertise one aspect of its business in preference to another is entirely a matter for the claimant. This is not a case where the loss as such would be suffered by a separate company so that the issues relating to whether or not to pierce the corporate veil do not arise.

115.    The claimaint confirmed subsequent to the hearing that VAT is not claimed.  Accordingly we award the sum of £2,607.00 claimed under this head of disturbance.

Transporter pads

116.    Mr Hart said that transporters which delivered and took away vehicles had to park on the retained land on an area which had a special surface that was stronger and more durable than the rest of the Ambrosetti land. As a result of the scheme it was necessary for more transporters to deliver vehicles so further areas had to be resurfaced to accommodate them at a cost of £11,802.50 plus VAT (i.e. 250 square metres at £47.21 per square metre). That figure was based on a quotation addressed to RM Brooks Limited, a company in the Ramac group controlled by the claimant. Various reasons were given as to exactly why more transporters were required but in every case the root cause was the delays caused by the roadworks to construct the scheme.

117.    The reason why the quotation was addressed to RM Brooks Ltd was because as a matter of company policy all intercompany building and construction work is carried out by them. They can negotiate more competitive prices than other companies in the group and have employees qualified to carry out the necessary works. In addition they are tax registered for this purpose unlike the claimant.

118.    In his witness statement Mr Hatcher accepted that the area of land available for loading and unloading in the access road reduced. However, he was not aware at the time of any concerns in this respect or need for resurfacing work. Nevertheless, as we have already said, in cross examination he did not dispute the truthfulness of Mr Hart’s evidence.

119.    Mr Honey submitted that the resurfacing cost was not recoverable for a number of reasons: the loss was caused by the roadworks not the compulsory acquisition, the loss was that of RM Brooks Limited not the claimant, the loss was too remote and the claimant had obtained value for money for resurfacing work.

120.    As to the first point, he submitted that compensation for disturbance is payable for losses attributable to compulsory acquisition not the general blighting effect of the Scheme. In support of that he cited a number of authorities: Pattle v Secretary of State for Transport [2009] UKUT 141 (LC) at paragraph 53, Welford v Transport for London [2010] UKUT 99 (LC) paragraph 61 and Emslie & Simpson Ltd v Aberdeen City District Council [1994] 1 EGLR 33 at pp.37B-38F. Insofar as the Tribunal had allowed claims based on the blighting effects of the scheme in Optical Express (Southern) Ltd v Birmingham City Council [2005] RVR 230 and Budgen v Secretary of State for Wales [1985] 2 EGLR 203, he submitted that they were wrongly decided.

121.    As to the second point, Mr Honey submitted again that this was not a case where the corporate veil could be pierced as RM Brooks Ltd were not in occupation of any land, relying on Bishopsgate Parking. The quotation was addressed to that company not the claimant and it was accepted that the work had been arranged for by and carried out on behalf of RM Brooks Ltd. He did not elaborate on the remoteness point. As for the argument that the claimant had received value for money, he submitted that there is a presumption the claimant has received value for money, see Harris v Welsh Development Agency [2000] RVR 49 (LT) paragraph 86. He relied on paragraph 101 of Harris which states that “the test of value for money involves the question whether the claimant received in return for his expenditure a tangible and more than transient benefit which is of worth or utility to him.” In this case the claimant ended up with a better quality surface afterwards as a result of the works.

122.    As to the first point, Mr Boyle submitted that the fact that compulsory acquisition triggers the entitlement to compensation does not mean that the amount of compensation to which the claimant is entitled under rule (6) excludes losses suffered in the real world as a result of the scheme. In Optical Express there was a claim for pre-acquisition losses in the form of decreased turnover caused by the start of construction work on the scheme, nearby shops becoming empty and short lettings to inferior traders, see paragraph 65. The Lands Tribunal referred to the guidance in Shun Fung and then considered to what extent the fall in turnover was caused by the scheme. The Tribunal awarded compensation for the last 3 months of decline in turnover on the grounds that it had been caused by the scheme, paragraph 74. Mr Boyle submitted that the Tribunal did not think that was in any way incompatible with Shun Fung. He drew attention to the fact that experienced counsel were involved in the case. Budgen was another application of the same principles where part of an agricultural holding was acquired and the claimant was awarded compensation for the effects of noise and dust caused by construction of the road scheme.

123.    Mr Boyle recognised that his submission was contrary to the decisions in Pattle, Welford and the Scottish Court of Session’s decision in Emslie but submitted that those cases were wrongly decided and he relied upon the dissenting judgment of Lord McClusky in Emslie as correctly stating the law. To restrict compensation to losses arising out of dispossession and not the scheme underlying the dispossession would be to contravene the principle of equivalence and leave the claimant out of pocket. In the real world, a seller would only agree to sell if he was paid for all his resulting losses and a person forced to sell by virtue of compulsory acquisition should not be in a worse position.

124.    Turning to the second point, Mr Boyle submitted that RM Brooks Ltd did the work on instructions from and on behalf of Ambrosetti for whose business it was necessary. The fact that a particular legal vehicle is used to carry out the works does not prevent the person on whose behalf they were done claiming for them. He drew attention to the fact that the cost of the security fencing which the acquiring authority had paid for was supported by an invoice addressed to RM Brooks Ltd not the claimant because only RM Brooks Ltd had Construction Industry Scheme accreditation.

125.    As to the issue of remoteness, Mr Boyle submitted that Ambrosetti’s business was the refurbishment and testing of vehicles. The fact that the roadworks caused delay in the delivery and collection of vehicles resulting in a need for more transporters was entirely foreseeable. As to value for money, the only reason the resurfacing was required was because of the additional loading caused by the transporters. There is no evidence the claimant had any other need for the work or received any other benefit from it.

126.    The key issue which arises is Mr Honey’s first point: can the claimant claim pursuant to rule (6) for losses caused by the scheme – the construction of the road – or only those caused by acquisition of and dispossession from the reference land (or the threat of it)? Although this issue has been considered in a number of previous authorities it has only been directly decided in one: Emslie.

127.    In Optical Express and Budgen, the facts of which are summarised above, the claims based on the general blighting effect of the scheme were allowed on the assumption that they were recoverable in principle without any consideration as to whether that was correct. We reject Mr Honey’s submission that because the claim allowed in Optical Express was for the 3 months trading prior to acquisition, it was so close to acquisition as to be indivisible from it. The claim based on the construction of the scheme, together with the vacancy and inferior lettings of other shops was not caused by the threat of acquisition of the claimant’s shop, rather by the imminent construction of the scheme. These two decisions therefore awarded compensation for losses caused by the scheme rather than the compulsory acquisition of the claimant’s land.

128.    The two cases initially relied on by Mr Honey to the opposite effect did not decide the issue either. In Welford a strip of land was acquired from the forecourt of a showroom for road improvements. The showroom and forecourt were let and prior to acquisition the claimant (freeholder) agreed a rent concession with the tenant. That formed part of the rule (6) claim (paragraphs 9 & 12). The issue was whether the rent concession had been given because of the impending acquisition or because of the imminent disruption from roadworks to construct the scheme. The Tribunal decided on the facts that it was the latter and the claim was not allowed, paragraph 61. However, it was no part of the claimant’s case that, if caused by the imminent construction of the scheme as opposed to the threat of acquisition, the rent concession was a recoverable loss, see paragraph 58. Hence that issue never arose for decision. However, it is right to note that the Tribunal certainly took the view that if the loss was caused by the prospect of the roadworks it was not recoverable.

129.    In Pattle a triangle of land was acquired from business premises which the claimants had planning permission to redevelop. The Tribunal determined as a preliminary issue whether losses caused by delay in redevelopment of the retained land were in principle recoverable under rule (6). The determination proceeded on the assumption of fact that the claimants would be able to show that deferment of the redevelopment was reasonably attributable at least in part to the prospective acquisition of the triangle of land and not just to general blight caused by the scheme, the Channel Tunnel Rail Link, paragraphs 11 & 12. The Tribunal held that such losses were recoverable in principle, subject to issues of causation and remoteness. The Tribunal went on to say, obiter,

“In a case where the loss to the letting business is caused by the general blighting effect of the scheme and the consequent depression of rental levels, rather than by the prospective acquisition of the land (or part of the land) on which the letting business is conducted, then we consider that such losses cannot be recovered. We did not understand [counsel for the claimants] to argue to the contrary…” (paragraph 53)

130.    Accordingly the issue did not arise directly for determination. However, the Tribunal went on to give reasons in support of its view:

“We reach this conclusion for the simple reason that such losses cannot be brought within the basic test set forth by Lord Nicholls in Shun Fung, namely that the losses are “fairly attributable to the taking of his land.” Instead such losses are fairly attributable to the general blighting effect of the scheme. Also such losses (i.e. which are reasonably attributable to the general blighting effect of the scheme) would plainly be irrecoverable if none of the landowner’s land was ever within the CPO or if none of his land was ultimately taken. Such a loss being irrecoverable as a matter of principle, we do not consider that such a loss (deriving merely from general blight) becomes recoverable as some form of parasitic claim if the landowner’s land (or some part thereof) is subsequently taken, see for instance the analysis of Lord Hoffman in Wildtree Hotels v London Borough of Harrow [2000] UKHL 70 in Part 5 of his speech dealing with the second issue.”

131.    Turning to Emslie, the claim for compensation by the tenant of a shop to be acquired for a redevelopment sought to recover his loss of profits prior to entry caused by “public knowledge of the development proposals and that customers were discouraged by the closure or relocation of other traders, the commencement of works on area A and the diversion of bus routes” (p.36K-L). It was accordingly a very similar claim to that put forward in Optical Express. The majority of the Court of Session held that the loss must be shown to be caused by dispossession, which it was not, rather than by the overall effects of the scheme. The President, Lord Hope, reviewed a number of authorities and concluded that none of them lent support to the view that loss which cannot be shown to have been directly caused by the taking of the lands is recoverable and that loss due to the effects of blight on trading generally cannot be said to have been caused by the dispossession (p.38C-E).

132.    Lord McClusky, dissenting, considered that although the immediate cause of the loss of profit was the overall blighting effect of the scheme, that was a result of the compulsory purchase which involved the eventual dispossession (p.40F-H). The loss was therefore caused by the compulsory acquisition. He also took the view that the test was one of equity which would not be met if a person suffers loss because his property is to be acquired between publication of a CPO and the taking of his land which cannot be recovered (p.40K-L).

133.    The development of the law of compensation for disturbance is summarised by Lord Nicholls in Shun Fung at p.124F:

“The Lands Clauses Consolidation Act 1845 (8&9 Vict. c.18) provided that regard should be had to the value of the land taken and to the damage sustained by severance: section 63. The Act contained no express provision for disturbance losses, either regarding businesses or generally. However, by judicial interpretation the value of the land was taken to mean the value of the land to the claimant and, hence, to embrace such personal losses: see the classic exposition of Scott LJ in Horn v Sunderland Corporation [1941] 2 KB 26, 43-49. The Acquisition of Land (Assessment of Compensation) Act 1919 set out the rules for the assessment of compensation. In section 2, rule (2) provided, in short, that the value of the land should be its market value, but rule (6) stated that this should “not affect the assessment of compensation for disturbance or any other matter not directly based on the value of the land.” These provisions are now reproduced in the Land Compensation Act 1961, section 5(2)(6), and the Land Compensation Act 1965, section 7.”

134.    The passage in Horn v Sunderland to which Lord Nicholls referred includes the following at page 49:

“(5) In the case of a sale by private treaty or auction the seller cannot put in his pocket more than the net market value. He can recover no loss to which he is put by his decision to part with his land, but on a compulsory sale the principle of compensation will include in the price of the land, not only its market value, but also personal loss imposed on the owner by the forced sale, whether it be the cost of preparing the land for the best market then available, or incidental loss in connection with the business he has been carrying on, or the cost of reinstatement, because otherwise he will not be fully compensated. (6) But here we come to the other side of the picture. The statutory compensation cannot, and must not, exceed the owner’s total loss, for, if it does, it will put an unfair burden on the public authority or other promoters who on public grounds have been given the power of compulsory acquisition, and it will transgress the principle of equivalence which is at the root of statutory compensation, the principle that the owner shall be paid neither less not more than his loss.”

135.    Both of these passages make clear that the object of disturbance compensation is to cover personal losses suffered by the owner as a result of having to sell his land against his will, to reflect the value of the land to him. The losses which may be claimed are those suffered in consequence of the compulsory acquisition of the land (or threat of it). Losses caused by the construction of the scheme (or imminent threat of construction) underlying the acquisition of the land are not losses caused to the owner by the forced sale of his land but rather are caused to the owner, and usually many others, by the inconvenience of construction of the public authority’s scheme as a whole.

136.    This approach is consistent with the decision of the Court of Session in Emslie. While we accept that this Scottish authority is not binding on us, it is one which demands a high degree of respect, not least for the judgment having been given by the President, Lord Hope. We do not consider that the reasoning in the dissenting judgment of Lord McCluskey is consistent with the passages from Shun Fung and Horn v Sunderland set out above. The fact that an owner whose land is compulsorily acquired suffers loss as a result of construction of the scheme which is not compensatable is no more unfair than the fact that the owner opposite, none of whose land is acquired for the scheme, suffers similar losses which are not compensatable either.

137.    Parliament has intervened to provide a statutory right to compensation in certain circumstances where no land is acquired, e.g. s.10 of the Compulsory Purchase Act 1965. However, even here the right to compensation is restricted to damage to an interest in land caused by the execution of works which, but for the statutory powers, would be actionable. As the Tribunal pointed out in paragraph 53 of Pattle, losses caused by the general blighting effect of the scheme would not be recoverable under s.10 any more than they are under rule (6), see Lord Hoffman in Wildtree Hotels Ltd v London Borough of Harrow [2001] 2 AC 1 at p.13. We also note that our approach is consistent not only with Pattle but also with the other Tribunal cases where this issue has been specifically considered.

138.    Accordingly, the fact that construction of the Phase 1C roadworks caused congestion and delays resulting in the need to construct transporter pads to enable more transporters to deliver to the site does not give rise to a claim for compensation for disturbance, being a loss caused by construction of the scheme and not a loss caused by acquisition of the reference land.

139.    We therefore make no award for the transporter pads.

140.    However, in the event that this case goes further we set out our conclusions on the other grounds on which Mr Honey submitted this claim should not be allowed.

141.    Turning to the argument that the loss was incurred by RM Brooks Ltd and not Ambrosetti or the claimant, in Bishopsgate Parking the Tribunal considered the basis on which one company could claim compensation for compulsory purchase in respect of losses suffered by another company. It held that the leading case, DHN Food Distributers Ltd v Tower Hamlets LBC [1976] 1 WLR 852, is authority for the proposition that where one company in a group owns the land acquired and another company is in lawful occupation of the land for the purpose of the business of the group, the corporate veil may be pierced so as to give the second company an entitlement to compensation for disturbance, see paragraph 124. Self evidently that does not apply here. RM Brooks Ltd was not in occupation of any land and the company in occupation that is entitled to claim for disturbance losses is Ambrosetti. The acquiring authority has recognised the application of the DHN case by agreeing in the deed to the claimant making a claim for disturbance losses suffered by Ambrosetti, a wholly owned subsidiary of the claimant.

142.    This is not a case where the claimant relies upon any of the other established bases upon which the corporate veil may be pierced, for example it was not suggested that the company structure was a mere façade concealing the true facts. That does not mean that the claimant could never claim for losses suffered by one company in the group who was not in occupation of the retained land. However, it would be necessary to show, by reference to the detailed accounting arrangements between the companies, that the company in ownership or occupation had in fact suffered a loss. This the claimant has not done. It is not enough to say that the claimant was in control of both RM Brooks Ltd and Ambrosetti or that the work was carried out on behalf of Ambrosetti. In our judgment, the claimant has failed to show on the evidence that the cost of constructing the transporter pads was a loss suffered by Ambrosetti or the claimant.

143.    As to remoteness, in our judgment it was entirely foreseeable that the construction of the scheme would cause disruption to Ambrosetti’s business. That business involved regular deliveries and collection of vehicles by large transporters which would inevitably suffer delays as a result of congestion caused by traffic management measures in place during the works. Indeed, the fact that such delays were suffered was not disputed. The claimant sought to mitigate its loss and deal with that disruption by increasing the number if transporters visiting the retained land rather than sustain trading losses. We consider that decision was entirely reasonable and that the resurfacing cost which was needed to accommodate the additional transporters, whether done in advance or by way of repairs, was relatively modest in comparison with potential trading losses.

144.    Further, there is no evidence that the claimant obtained any benefit over and above that required to mitigate the effects of the scheme. There is no evidence that afterwards it had any need for a larger parking area for transporters or that the existence of such an area was of benefit to the business. We saw on the site inspection that the resurfaced areas are now being used for the storage of vehicles or as access roads in exactly the same way as the rest of the site rather than for the parking or unloading of transporters. Having regard to the test in Harris paragraph 101, there is no evidence the resurfacing has produced a tangible benefit of worth or utility to the claimant over and above that required to mitigate the effects of the scheme.

145.    Accordingly we reject the arguments that this loss was too remote and that it is not recoverable on the grounds that the claimant obtained value for money. 

Road testing

146.     Mr Hart said that as part of the refurbishment of vehicles carried out by Ambrosetti the vehicles had to be road tested to check whether there were any mechanical or other faults. This included driving for a minimum distance and at speeds of up to 50mph. As a result of the scheme it was not possible to road test sufficient numbers of vehicles every day – 40 vehicles had to be tested each day – so that extra costs were incurred testing them outside normal working hours. The claim fell into two parts.

147.    The first related to the period 2005-2008 when Mr Hart said it was only possible to test 30 vehicles a day so that 10 vehicles as day had to be tested outside the working day by drivers who had already worked a day shift. The cost of their overtime (time and a third) was £26.67 per hour. It took an hour to test 4 vehicles so two and a half hours overtime each day to test the 10 vehicles. Mr Hart said that this had continued 6 days a week for 50 weeks giving rise to a claim for £20,002.50.

148.    The second part of the claim related to the period 22 February to 1 April 2010 when the works on plot 16 of the CPO were undertaken. For 34 days the shift of 2 drivers was changed completely from a day shift to a night shift (8 hours) so they could test the vehicles. In this case because the drivers would have been paid anyway for a day shift the claim related only to the overtime payment of £6.67 per hour giving rise to a total of £3,628.48.

149.    In cross examination Mr Hart agreed that the problems with vehicle testing were caused by a reduction in free flowing traffic during the road works owing to temporary traffic lights and speed restrictions. This increased the time it took to test vehicles and vehicles had to travel longer distances in order to complete the necessary testing. Further, as to the second part of this claim, congestion at the access 1 roundabout meant that vehicles could not be taken out in sufficient volumes.

150.    When Mr Roberts gave evidence he said he had prepared the sheet of calculations which Mr Hart had produced based on information supplied to him by Ambrosetti’s site manager, the only information he had been given by Mr Hart was the hourly rate and overtime rate for the drivers. However, Mr Roberts had himself had no input other than to do the arithmetic.

151.    In his witness statement Mr Hatcher described the traffic management measures put in place during construction of the Scheme between October 2005 and its completion in September 2007. No formal complaints of disruption to Ambrosetti’s business were made at the time. As to the disruption in 2010, Mr Hatcher said that the purpose of the acquisition of plot 16 was to construct a balancing pond. However, the acquiring authority then decided to construct underground storage tanks instead as a result of which only part of plot 16 was required and not all the trees were removed. The acquiring authority would have returned the balance of the land to the claimant but decided to use it instead to construct the carriageway of the road to be widened as part of Phase 2 works which were indeed carried out in 2010.

152.    Mr Honey again submitted that the loss, if any, had been caused by the roadworks i.e. construction of the scheme and not as a result of acquisition and could not be recovered. He also submitted that there was no evidence any additional payments had been made, no records had been produced and the claim was based on assumptions as well as being too remote. Further, Mr Hatcher’s evidence showed that any disruption to traffic was not substantial.

153.    For the reasons already referred to Mr Boyle submitted that these losses caused by the roadworks could be recovered. Mr Hart had given evidence as to the additional costs which was the best evidence the Tribunal has. The Phase 2 works were in contemplation at the time of the acquisition of plot 16 and involved work on land not otherwise needed for Phase 1C so the disruption caused then was recoverable.

154.    Two main issues fall to be considered: whether the claimant has proved that these costs have been incurred and, if so, whether they are recoverable in principle as disturbance costs. For the reasons already given we consider that the road testing costs are not recoverable as a matter of principle. Mr Hart accepted that they were caused by the congestion and delays occasioned by the roadworks. We find they were not caused directly by acquisition of any part of the reference land but instead were caused by construction of the scheme.

155.    However, as with the claim relating to transporter pads, we go on to consider whether the claimant has proved the costs have been incurred. The claim as now formulated is quite different from the claim originally made. The original claim put forward for the first part of the road testing costs was for £6,000. It related to a specific period - 18 August 2005 to 4 June 2007 - within which it was said that for 50 weeks it took an extra six minutes per vehicle to test ten vehicles (one hour) at a driver cost of £20 for six days a week (£120). Thus the claim was for £120 multiplied by 50 weeks (£6,000). Page 3 of the Schedule to the Re-Amended Statement of Case contains a note stating “following the acquiring authority agreeing this head of claim with Mr Oliver [the claimant’s former valuer] in 2009, the records have been disposed of.” In the light of that we reject Mr Honey’s complaint that no records had been produced. In cross examination Mr Hart was unable to explain why the claim had changed, nor was he able to explain to which period or dates the 50 weeks claimed for in the first part of this claim related or why the claim continued into 2008 after construction of the scheme had finished.

156.    Mr Heard’s report questioned the extra six minutes per vehicle relied upon (although not the other components of this part of the claim). He calculated that the speed of vehicles being tested was unreasonably slow having regard to the distances involved. However, his calculations were based on average speeds and took no account of congestion caused by traffic signals or temporary speed restrictions. Further, as he recognised, he would require additional information as to the criteria for the road test and times of the day when they were carried out in order to be able to give more detailed consideration to the matter.

157.    The original claim for the second part of the road testing costs was for £14,400. It related to the same period 22 February to 1 April 2010 but for six weeks not 34 days and claimed for the cost of a night shift for 2 drivers. The cost was said to be £120 per week per driver but the figure claimed is 10 times that (£120 per week x two drivers x six weeks = £1,440). There is no explanation whatsoever for the tenfold increase. However, if the cost claimed was for the number of hours spent on the night shift (we assume ten hours although the claim refers to the night shift being from 17:00 to 05:00 being 12 hours) at £20 per hour multiplied by two drivers for six days a week and for six weeks the total claim would be £14,400. Again there was no explanation as to why the basis of the claim had changed or as to the discrepancies just identified.

158.    There is no dispute that Ambrosetti was required to test 40 vehicles a day or that delays were caused by the road works. Mr Hatcher’s evidence shows that were would have been delays throughout the time of the construction of Phase 1C. Although the acquiring authority does not accept that any costs were incurred it is likely that there was disruption to the road testing of vehicles and we accept that the evidence that some extra costs were incurred as a result. However, the Tribunal is not satisfied that the claim now put forward represents the loss to the claimant caused by additional road test costs.

159.    As to the amount, two completely different calculations have been put forward. Although Mr Hart spoke confidently to the basis on which the claim was calculated it appears that the only part of which he has any personal knowledge is the drivers’ hourly and overtime rates. The other details were provided by the site manager and Mr Hart was unable to answer any questions as to how the 50 week figure in the first part of the claim was arrived at given the period of disruption apparently extended over several years. Indeed, paragraph 7.8 of his proof of evidence referred to the claim as being based on an assumption. Further, the figure claimed for the first period of disruption has risen significantly without any explanation for the change. We consider that the claim as originally formulated is far more likely to be a reliable assessment of the extra costs given it is more detailed and apparently based on records that are no longer available. The information provided by the site manager to Mr Roberts was presumably based on his recollection many years after the event and is also likely to be less reliable than the claim originally formulated based on documents. For the reasons already given we are not persuaded by Mr Heard’s evidence that the claim is unreasonable or unrealistic.

160.    Accordingly, if the losses had been recoverable in principle we would have awarded £6,000 in respect of the first part of the claim as originally submitted.

161.    As to the second part of the claim, although some of the details have changed slightly, it is a consistent claim based on two drivers having to do night shifts between 22 February and 1 April 2010 in order to get the vehicle testing done. The claim put forward by Mr Hart reduces the number of hours in the night shift to eight, reduces the number of days spent to 34 and claims only the additional overtime payment of £6.67 not the £20 per hour which would have been paid in any event for the drivers to do a day shift. In our judgment this is a properly considered claim for £3,628.48 which reflects actual costs incurred and is reasonable.

162.    However, if the losses had been recoverable in principle we would not have awarded this sum in respect of the second part of the claim because the losses were not caused by the scheme. There is no dispute that the scheme for the purposes of this claim for compensation is Phase 1C the construction of which was completed in September 2007. These losses admittedly occurred during the construction of Phase 2 in 2010. Although part of plot 16 was used to construct Phase 2, Mr Hatcher’s evidence is that plot 16 was acquired for the purpose of creating a pond for Phase 1C and entry effected in 2005. It was only later that the underground tanks were substituted and a decision made to retain part of plot 16 to build Phase 2. Thus, although Phase 2 may have been in contemplation at the time of the acquisition of plot 16, there is no evidence that acquisition of plot 16 in 2005 was for any of the purposes of Phase 2. In those circumstances none of the losses suffered in 2010 could be said to be attributable to the acquisition of any of the claimant’s land or the construction of the works for which the land was acquired.

Director’s fees

163.    Mr Hart said that he had to spend a considerable amount of time at meetings, on the phone and on correspondence dealing with the acquisition and its effect on the claimant which interrupted his daily routine of work for the claimant and its group of companies. He claimed for 54 hours 18 minutes at a £100 per hour totalling £5,430. The hours themselves were particularised in a schedule with the precise dates and duration of meetings etc from 2002 to 2008. In his witness statement he said the figure of £100 per hour included salary, expenses, motor vehicle, medical cover and a proportion of some overheads (but excluding telephone, electricity, gas, water, legal). The alternative to him spending time dealing with these matters was for the claimant to instruct an external professional advisor which would have cost more. Although Mr Hart agreed in cross examination that these hours averaged out at about 10 minutes a week he said that was not relevant. On a day when he had to spend 4 hours at a meeting (e.g. 6 December 2005), that amounted to a significant interference with his work when he should have been doing something else. As a result he had to carry out his other work by putting in additional time. His evidence was that as a matter of fact he was paid overtime at the rate he gave for the time he spent on the CPO.

164.    Subsequently it appeared that there was a further claim for Mr Hart’s time which had been put in with the claim for pre-reference costs. This comprised the time he had spent dealing with the CPO at meetings, dealing with correspondence and on phone calls since the end of the previous schedule up to 2011 and a few items which had been omitted from the previous schedule. The claim was for 45.38 hours plus £21.60 in expenses. Of those hours 34.5 were claimed at a lower rate of £75 per hour. We were informed that figure was adopted after a certain date because overhead costs which formed part of the cost had reduced when he had relocated. The claim was for £3,697.10 (£1088 + £1462.50 + £150 + £975 + £21.60).

165.    In addition Mr Hart said that two surveyors from RM Brooks Ltd had been employed for eight hours at £50 an hour each (£400) to survey the tree screen along the western boundary of the site. Again, using in house personnel was cheaper than instructing independent surveyors. Their charge rate was determined by salaries, travel expenses and overheads/profit costings. He did not say whether either RM Brooks Ltd or the claimant paid the surveyors for this work over and above their normal salaries. In cross examination he agreed that the work had not been charged by RM Brooks Ltd to the claimant or Ambrosetti.

166.    Mr Honey submitted that the amount of time Mr Hart spent would not have had any effect on the operation of the business and there was no evidence the claimant had suffered any loss as a result. The fact the sums charged included overheads indicated that they do not represent additional payments made to Mr Hart (or the surveyors). He relied on the decision of the Court of Appeal in Lancaster City Council v Thomas Newall Ltd [2013] EWCA Civ 802 in which a claim for director’s time was disallowed on the grounds there was no evidence to support it.

167.    Mr Boyle submitted that the claimant had mitigated its loss by using Mr Hart rather than an external consultant which was cheaper even allowing for an element of overheads. Mr Hart had been compensated for the time he spent on the CPO through overtime. What was done and how long it took were beyond challenge.

168.    Although the fact that overheads were included in the hourly rate suggested that only a notional cost had been identified, Mr Hart was explicit that he had been paid overtime for all the time spent on the CPO at the hourly rate claimed. In contrast to his evidence about other disturbance losses, this was a matter within his direct knowledge and it has not been suggested that he was anything other than an honest witness. In those circumstances the claimant has demonstrated that it has suffered a loss. The situation is quite different from that in the Newall case, where the only evidence was a schedule showing the dates and times of work done by directors. There was no evidence that any payments had been made to the directors or that the claimant had suffered any loss as a result of directors’ time being diverted from revenue generating business, see paragraphs 12 & 13. In paragraph 31 Rimer LJ said this:

“It is not enough merely to prove that a director of a company has devoted time to dealing with such matters. It is necessary also to prove how his devotion of such time impacted upon the company and caused it loss… if in order to avoid disruption to the company’s business a director is required to work additional hours in order to simply deal with the problems of the acquisition, and the company pays him for such additional hours, it may be reasonable to regard such payment as a proxy for the loss suffered by the company…”

That is precisely the position here.

169.    There are two matters which we do not allow. There is no explanation at all for the £21.60 claim for ‘expenses.’ Further, there is no evidence that the time spent by surveyors caused a loss, whether to RM Brooks Ltd or the claimant. In contrast to Mr Hart, there is no evidence they were paid any overtime or that the time they spent surveying the trees caused RM Brooks Ltd (or the claimant) any loss.

170.    Accordingly the amount awarded for director’s time is £5,430 + £3,675.50 (£3,697.10 less £21.60) = £9,105.50.

 

Conclusions on disturbance

171.    In accordance with our findings above the compensation for disturbance, subject to any question of betterment is as follows:

(1)  Additional security: £3,840.56

(2)  Signpost: £2,607.00

(3)  Transporter pads: nil

(4)  Road testing: nil

(5)  Director’s time: £9,105.50

The total compensation payable for disturbance is therefore £15,553.06 subject to the issue of betterment.

Issue 4 - Pre-reference costs

172.    As already indicated during the hearing these were agreed, subject to the issue of betterment, the total being £12,910.20 net of VAT.

Issue 5 - Betterment

173.    The acquiring authority sought to reduce the claim to nil on the grounds that the value of the retained land had increased as a result of a number of benefits of the scheme.  Mr Boyle noted that this was a relatively late change of stance by the acquiring authority, and had not been deployed as an argument in respect of other settlements in the scheme.

174.    Mr Goddard had identified six benefits of the scheme to the retained land which he agreed were capable of being split into two groups: “site specific benefits”, relating solely to the retained land in the post scheme world and “corridor benefits” i.e. those also relating to other potential development sites along the A256. 

175.    The “site specific benefits”, as originally stated, were increased development capacity of the retained land and an increase in development flexibility as a result of the third access into the site i.e. the Timberlake access.

176.    In his expert report Mr Heard had sought to show that the improved accesses to the retained land significantly increased the amount of development that the land could accommodate over and above that which could be developed in the no scheme world. He estimated that each of the three new accesses could accommodate 100,000 square metres of new development assuming a 50/50 B1/B2 split as compared with 50,000 square metres at each of the two existing accesses in the no scheme world. In turn Mr Goddard’s report concluded that the retained land could physically accommodate 250,000 of this 300,000 square metres of B1/B2 development. Mr Cottage’s report went on to value the enhancement of all the benefits of the scheme, the increased development capacity having “greater relevance” than the other benefits, as “at least 5% and possibly more” of the total value of the retained land.

177.    By the time Mr Heard had finished giving evidence, however, the picture had changed dramatically. He agreed in cross examination that the capacity of any development on the retained land was constrained in highway terms by the capacity of the new roundabout replacing the site’s main access. Significantly, he accepted that because of this the total capacity of the site was limited to around 100,000 square metres of development and less if the power station site and other sites in the area were developed. This compared with the experts’ agreement that the site was capable of supporting up to 77,000 square metres of equivalent development in the no scheme world and more (up to 120,000 square metres subject to highways constraints) if those accesses were improved.

178.    In the end, Mr Honey conceded in his closing submissions that the scheme did not increase the development capacity of the retained land and relied upon Mr Cottage’s summary of the position that “the development capacity of the retained land was certainly no worse than before.”

179.    Nevertheless, the acquiring authority maintained that the site specific benefits included the new accesses which provided a level of certainty that a purchaser would not have if he wished to increase the pre-existing development capacity of the retained land above 77,000 square metres. That would require improvements to the existing accesses involving cost and risk. Further, Mr Goddard said that the addition of the Timberlake access over which the claimant had a right of way enhanced the ability to develop the site in parcels and different forms taking advantage of the possibility of linking the accesses internally.

180.    In our judgment, while there were undoubtedly site specific benefits in the form of improved accesses to the site, these were not as important as suggested by the acquiring authority. First, Mr Roberts’s evidence was that the existing accesses could be improved so as to accommodate additional development and Mr Heard did not dispute that in highway terms such improvements would be possible. Mr Goddard agreed that planning policy supported development of sites in the A256 corridor in this location (and therefore access improvements to facilitate development) and that to describe uncertainty over improving the pre-existing accesses as ‘considerable’’ was an exaggeration. As to the Timberlake access, it was common ground that an access at this point was capable of being constructed and had planning permission. There was no evidence as to any proper basis on which the highways authority could refuse consent to its construction. Although this would have required the agreement of Mr Timberlake, there is no evidence that this would have been a difficulty, on the contrary, he and the claimant co-operated fully over the new access constructed as part of the scheme. Further, having regard to the overall cost of redevelopment given by Mr Cottage to which we have already referred, the £120,000 to £200,000 cost of improving each access, or the cost of constructing a new access (as to which no figure was given), would not be regarded as significant by a prospective purchaser.

181.    Turning to the corridor benefits, these were variously described during the hearing but could be summarised as: highway benefits (including appearance), a potentially wider range of uses (or regenerative benefits), safety benefits, and sustainable transportation.  Mr Cottage accepted that, for valuation purposes, these applied equally to other potential development sites as to the retained land.  However, he also said that the corridor benefits would have an effect on the market perception of the retained land. The retained land occupied a significant proportion of Phase 1C, it was the deepest site and thus had more land to benefit.

182.    In addition to the erstwhile capacity benefit, Mr Cottage considered that the scheme delivered the likelihood of higher value development, and that any development was likely to be brought forward as a result of the scheme, leading to earlier development profit.

183.    We accept that there were some benefits to the retained land from the scheme but we consider that some of those benefits have been overstated and overall the benefits were relatively limited. This is supported by the fact the acquiring authority did not seek to raise any betterment argument in relation to compensation for the acquisition of other plots of land in the CPO.

184.    We have seen photographs of the site before and after the scheme was constructed and the improvements in the appearance of the road corridor could best be described as modest. Further, there was already a combined footway and cycleway adjacent to the western boundary of the site, though we accept this has been improved.

185.    As to the safety benefits of the scheme, if a prospective purchaser had gone into the detail of the accident statistics, which we doubt, these were agreed to show a rate of 3.2 accidents per annum pre scheme and 3 per annum post scheme along the stretch of road that included the approaches to the roundabouts at either end of Phase 1C, an approach which Mr Heard agreed was not unreasonable. In our judgment this benefit would be regarded as negligible by a potential purchaser.

186.    Further, given that any development potential of the retained land is agreed to be long term, scheme benefits which went to future development of the retained land would be given correspondingly less weight by a purchaser. It is also worth noting that, despite the fact that there are a number of sites in the immediate vicinity of the retained land which are available for development, none have been developed since completion of the scheme.

187.    Mr Cottage was unable to submit transactional evidence that supported betterment by way of a comparison of land values pre-scheme and post scheme.  His judgement related to the fact that, on his valuation of the reference land, the uplift in value to the retained land would only have to be small in order to completely offset any compensation payable. He originally assessed the uplift in value as “at least 5% and possibly more” and after the benefit of increased development capacity was dropped he revised this to “up to 5%”.

188.    It is clear to us that the acquiring authority’s case for betterment was founded chiefly on a significant increase in development capacity. Mr Cottage struggled, unsuccessfully in our view, to recover the position by reference to his expert report. We are quite satisfied that on a fair reading of it he regarded by far the most significant benefit of the scheme as the increase in development capacity. Mr Boyle correctly summarised the position as being that Mr Goddard’s evidence relied upon Mr Heard’s evidence, and Mr Cottage’s evidence relied on both that of Mr Heard and Mr Goddard.  When Mr Heard accepted the claimant’s position in respect of capacity, the case for betterment, in our view, effectively collapsed.

189.    As we have already said, whilst we accept that there were some benefits to the retained land from the scheme, there has been insufficient evidence to show how these would translate into an increased bid from a purchaser.  We therefore find that the scheme did not produce any tangible betterment in valuation terms, and that the claim should not be offset by any betterment value.

Summary

190.    In respect of compensation for the land taken, we award £38,545.

191.    In respect of severance/injurious affection, we award nothing.

192.    In respect of disturbance, we award £15,553.06

193.    In respect of pre-reference costs, we award £12,910.20

194.    We make no deduction from the above for betterment under s.261 of the Highways Act 1980.

 

195.    The total award is therefore £67,008.26

 

196.    The claimant is also entitled to statutory interest.  A letter concerning costs accompanies this decision, which will become final when the question of costs has been determined.

 

Dated: 3 April 2014

Her Honour Judge Alice Robinson

 

 

 

P D McCrea FRICS