Decision Nº ACQ 130 2011. Upper Tribunal (Lands Chamber), 19-07-2013
| Jurisdiction | UK Non-devolved |
| Judge | Sir Keith Lindblom, President |
| Date | 19 July 2013 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | ACQ 130 2011 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2013] UKUT 0214 (LC)
UTLC Case Number: ACQ/130/2011
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – electricity – grant of necessary wayleave under Schedule 4 of Electricity Act 1989 – overhead line – injurious affection – whether section 44 of the Land Compensation Act 1973 applies – application of the principle of equivalence
IN THE MATTER OF A NOTICE OF REFERENCE
BETWEEN NEVILLE JAMES STYNES ClaimantsAND BARBARA STYNES
and
WESTERN POWER (EAST MIDLANDS) PLC Compensating
Authority
Re: 8 Turlands Close,
Walsgrave,
Coventry
CV2 2PT
Before: Sir Keith Lindblom, President and Mr A.J. Trott F.R.I.C.S.
Sitting at: 43-45 Bedford Square, London WC1B 3DN
on 18 and 19 April 2013
Mr Stephen Tromans Q.C. and Mr Richard Wald, instructed by Hugh James Solicitors, appeared for the claimants
Mr David Elvin Q.C., instructed by Squire Sanders (UK) LLP, appeared for the compensating authority
The following cases are referred to in this decision:
Liaqat v Majid [2005] EWHC 1305 (QB)
United States v Causby (1946) 66 S. Ct. 1062
Turris Investments Ltd. v The Central Electricity Generating Board [1981] 1 E.G.L.R. 186
Macleod v National Grid Co. [1998] 2 E.G.L.R. 217
Welford v EDF Energy Networks (LPN) Plc [2006] 3 E.G.L.R. 165
Welford v EDF Energy Networks (LPN) Plc [2007] 2 P. & C.R. 15
Arnold White Estates Limited v National Grid Electricity Transmission Plc [2013] UKUT 005 (LC)
R. v Secretary of State for Trade and Industry, ex parte Wolf [2000] 79 P. & C.R. 299
Edwards v Ministry of Transport [1964] 2 Q.B. 134
Moto Hospitality v Secretary of State for Transport [2007] EWCA Civ 764
Director of Buildings and Lands v Shun Fung Ironworks Ltd. [1995] 2 A.C. 111
Anchor Brewhouse Developments Ltd. v Berkeley House (Docklands Developments) Ltd. [1987] 2 E.G.L.R. 173
Sovmots Investments Ltd. v The Secretary of State for the Environment [1979] A.C. 144
Belfast Corporation v O. D. Cars Ltd. [1960] A.C. 490
Bocardo SA v Star Energy UK Onshore Ltd. [2011] 1 A.C. 380
Newcastle-under-Lyme Corporation v Woolstanton Ltd. [1947] Ch. 427
Naylor v Southern Electricity Board [1996] 1 E.G.L.R. 195
Horn v Sunderland Corporation [1941] 2 K.B. 26
Metropolitan District Railway v Sharpe (1880) 5 App. Cas. 425
Pennsylvania Coal Co. v Mahon [1922] 260 U.S. 393
Baron Bernstein of Leigh v Skyviews & General Ltd. [1978] Q.B. 479
Kelsen v Imperial Tobacco Co. (of Great Britain and Ireland) Ltd. [1957] 2 Q.B. 334
Graham v K.D. Morris & Sons Pty. Ltd. [1974] Qd.R.1
Waters v Welsh Development Agency [2004]1 W.L.R. 1304
The following further cases were referred to in argument:
Blundell v R. [1905] 1 K.B. 516
The Master and Fellows of University College, Oxford v Secretary of State for Air [1938] 1 All E.R. 69
Delaforce v Evans [1970] 215 E.G. 315
Lithgow v United Kingdom 8 E.H.R.R. 329
British Waterways Board v London Power Networks Plc [2002] EWHC 2417 (Ch)
Road Chef Motorways Ltd. v Secretary of State for Transport [2007] R.V.R. 5
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This reference concerns the compensation payable to Mr and Mrs Neville Stynes (“the claimants”), the freehold owners of 8 Turlands Close, Walsgrave, Coventry (“the reference property”), for the grant of a necessary wayleave by the Secretary of State for Energy and Climate Change (“the Secretary of State”) to Western Power Distribution East Plc (formerly Central Networks East Plc) (“the compensating authority”). The wayleave was granted on 13 September 2010, under the provisions of Schedule 4 to the Electricity Act 1989 (“the 1989 Act”). It allowed the compensating authority to retain an electricity line above the reference property. The dispute between the parties is about the claimants’ entitlement to compensation for injurious affection.
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The claimants have owned and lived in the reference property since 1981. Close to the reference property at its rear there is a pylon owned by the compensating authority. The pylon is known as “tower HK34”. It supports a section of the 132kV line constructed between Coventry and Whitley in 1951. The line impinges on the airspace above the back garden of the reference property.
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In a witness statement dated 17 September 2012 Mrs Stynes explains the basis of the claim. She says that birds sitting on the compensating authority’s line make a mess in the garden with their droppings. This prevents the claimants from using and enjoying the garden as they would wish. According to Mrs Stynes, “[the] pylons [sic] are a continuing source of stress”, the “noise that the pylon and the cables make causes considerable disturbance”, and the “terrible crackling noise” in damp weather is “loud and clearly audible” both in the garden and in the house. Mrs Stynes also says that the claimants are concerned about the “damaging effect” the pylon may be having on their health. For some time they have been “aware of the possible health effects of the electromagnetic fields associated with the pylons and overhead lines”, and this has caused them, says Mrs Stynes, “a great deal of stress”. The compensating authority does not accept all of the evidence put forward in support of the claim. However, such dispute as there is about the factual basis of the claim does not affect the questions we have to consider.
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At the hearing of the reference Mr Stephen Tromans Q.C. and Mr Richard Wald appeared for the claimants. Mr David Elvin Q.C. appeared for the compensating authority.
The main issue
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The main issue in the reference is whether, under paragraph 7 of Schedule 4 to the 1989 Act, the claimants are entitled to compensation for injurious affection not only for the effects of the part of the line that passes over the reference property but also, by the operation of section 44 of the Land Compensation Act 1973 or in accordance with the principle of equivalence, for the effects of the compensating authority’s apparatus, including the pylon, on adjacent land.
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The parties have agreed the level of compensation for injurious affection on alternative bases. If the Tribunal decides that section 44 of the 1973 Act does apply in this case, either directly or indirectly through the principle of equivalence, the compensation due to the claimants for injurious affection will be £14,000. If the Tribunal decides that section 44 does not apply the compensation for injurious affection is agreed as £4,000. The valuation date is agreed as 13 September 2010.
The facts
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The parties have submitted a statement of agreed facts and issues and two supplementary statements of agreed matters, in the light of which, and the documents before us, we take the following facts as the basis for our decision.
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Tower HK34 is a double-circuit lattice pylon. It stands 16 metres away from the house on the reference property. It is clearly visible from both the house and the garden. It supports seven electrical cables (six phase conductors and an earth conductor). The line impinges on the airspace above the back garden of the reference property.
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When the air is still the middle phase conductor overhangs the garden by six centimetres. In windy conditions, when the maximum operating temperature is reached, the line swings in an arc of up to 2.85 metres, and there is a further safety clearance of 3.6 metres within which no building may be constructed.
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The parties agree that “in consequence of the locations of the Line and Pylon [the reference property] is injuriously affected” (paragraph 1.6 of the statement of agreed facts and issues). This agreement is reflected in the alternative figures for compensation to which we have referred in paragraph 6 above.
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On 30 July 2009 the claimants served a notice on the compensating authority requiring it to remove all of its high voltage electricity apparatus across the reference property.
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In a letter dated 12 August 2009 the compensating authority made an application to the Secretary of State under paragraph 6 of Schedule 4 to the 1989 Act for a necessary wayleave to keep the line in place.
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The application was considered by the Secretary of State’s Inspector, Mr Alan Walker, C. Eng., F.I.E.T., C.Dip. A.F., on written representations submitted by...
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