Decision Nº ACQ 138 1999. Upper Tribunal (Lands Chamber), 07-06-2000
| Jurisdiction | UK Non-devolved |
| Judge | Mr Peter H Clarke FRICS |
| Date | 07 June 2000 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | ACQ 138 1999 |
COMPENSATION - purchase notice - amenity land adjoining main road - restriction to garden or recreational use - refusals of planning permission - offer - comparables - compensation £2,000
IN THE MATTER of a NOTICE OF REFERENCE
BETWEEN ALAN RACHETER Claimant
and
BASINGSTOKE AND DEANE Acquiring
BOROUGH COUNCIL Authority
Re: Land known as rear of
41-45 Hillary Road or
53A Kingsclere Road
Basingstoke
Hampshire
Tribunal Member: P H Clarke FRICS
Determination without an oral hearing under
rule 27 of the Lands Tribunal Rules 1996
The following case is referred to in this decision:
W & S (Long Eaton) Ltd v Derbyshire County Council (1975) 31 P&CR 99
DECISION OF THE LANDS TRIBUNAL
-
This is a reference to determine the compensation payable for the acquisition by the local authority of a small plot of open land adjoining Kingsclere Road, Basingstoke following service of a purchase notice.
-
The parties have agreed that the reference shall be determined without an oral hearing under rule 27 of the Lands Tribunal Rules 1996. I have received copies of documents and written representations from the claimant. I have received copies of documents and written statements from Robert J Jackson MPhil BA MRTPI, a principal planning officer, and Brian Barrett Dip Prop Econ BSc ARICS, an assistant principal estates surveyor, both employed by Basingstoke and Deane Borough Council, the acquiring authority. I have inspected the reference land and some of the comparables referred to by Mr Barrett.
FACTS
-
The claimant, Alan Racheter, is the freehold owner of 42 Hillary Road, a terraced house built in 1965 at the end of a cul-de-sac in a residential area to the west of the town centre of Basingstoke, Hampshire. At the rear of the house is Kingsclere Road. Between the rear garden of Mr Racheter’s house and the pavement of Kingsclere Road there is first a private path leading from Hillary Road to the back gardens of nos.41-44, then the land which is the subject of this reference (“the reference land”) and then a narrow strip of grass with frontage to the pavement of Kingsclere Road.
-
Mr Racheter bought the freehold of the reference land in April 1995 subject to a restrictive covenant “not to use the property for any purpose other than for garden or recreational use.”
-
The reference land is known as land at the rear of 41-45 Hillary Road or 53A Kingsclere Road. It is open grassland, triangular in shape with an area of 241 square metres. It is bounded on the north by an open area of grass owned by Basingstoke and Deane Borough Council and leased to Basingstoke Training Association. The eastern boundary is the rear gardens of 44 and 45 Hillary Road and the private footpath from the road giving access to the gardens of nos.41-44. The apex of the triangle is to the south and the western boundary is the small strip of grass between the land and the pavement of Kingsclere Road. The reference land is fenced. Kingsclere Road is part of the A339, a busy main road. On the western side of the road is Houndsmill Industrial Estate.
-
Following his purchase of the reference land Mr Racheter made unsuccessful attempts to obtain planning permission for use or development. On 15 September 1995 planning permission was refused for “change of use of former highway land to land within the domestic curtilage.” This decision was upheld on appeal by an inspector appointed by the Secretary of State for the Environment on 4 June 1996. On 25 July 1996 planning permission was refused for “change of use to private garden.” This decision was upheld on appeal on 10 March 1997. On 26 May 1998 planning permission was refused for the “erection of a single dwelling.”
-
On 29 May 1998 Mr Racheter served a purchase notice on the Basingstoke and Deane Borough Council (“the Council”) under section 137 of the Town and Country Planning Act 1990. This was accepted by a response notice dated 25 August 1998. On 19 October 1999 the Council referred the determination of compensation to this Tribunal. Initially both parties agreed to the use of the simplified procedure under rule 28 of the Lands Tribunal Rules 1996. On 13 March 2000 the claimant requested that the matter be dealt with on written representations and the Council agreed. An order vacating the hearing and providing for further representations was made on 22 March 2000.
ISSUE
-
The sole issue in this reference is the amount of compensation payable for the purchase of the reference land by the Council. Mr Racheter claims £9,000; the Council offer £2,000.
CLAIMANT’S CASE
-
Mr Racheter referred to the development of 41-45 Hillary Road in 1965 and to the fact that the reference land then formed part of the A340 Aldermaston Road. If the road had been removed prior to the building of these houses their rear boundaries would have been taken up to the pavement of Kingsclere Road. Thus, a potential use of the reference land is as garden land to extend the back gardens of nos.41-45. Mr Racheter acknowledged, however, that planning permission for this use has been refused.
-
Mr Racheter has lived at 42 Hillary Road since 1988. In 1989 he noticed that the reference land was becoming a nuisance. Acquisition of the land gave him a buffer strip which improved the amenity of his house but as it is the Council’s intention to use it as public open space then the old problems will return. The land cannot now be put to reasonable use due to the refusals of planning permission, which Mr Racheter saw as a denial of his proprietary property rights.
-
It is difficult to put a value on the reference land. In May 1999 Mr Racheter advertised the land for sale. He received an offer of £9,000. He has spent £300 on two planning applications; maintenance has been £50 per annum. On an open market sale compensation should be £9,000 plus legal costs. On the basis of potential use Mr Racheter suggested £6,015 (£25 per square metre) plus £3,000 for nuisance to his house. No deduction should be made for future maintenance. The principle of equivalence should be applied, keeping in mind the present and future advantages, including compensation for disturbance, severance and injurious affection. The best comparable in the evidence of Mr Barrett is the sale of land adjoining 65 Buckland Avenue, Basingstoke.
COUNCIL’S CASE
-
Mr Jackson’s evidence dealt with the planning history of the reference land and the development plans. He referred to policy ORT 1 in the Basingstoke and Deane Borough Local Plan which restricts the development or change of use of existing or proposed public and private open space and areas of visual amenity.
-
Mr Barrett stated that compensation is to be assessed in accordance with rule (2) of section 5 of the Land Compensation Act 1961 (open market value). This value will be based on existing use limited by the restrictive covenant to garden or recreational use. Planning permission has been refused for change of use or development. The use of the reference land is limited to amenity open space. It has not been used for any other purpose since the realignment of Kingsclere Road in the 1960s and 1970s.
-
Mr Barrett looked at comparables relating to recreational and garden land. For the former he considered the purchase by the Council of 13.6 acres in Overton, 8 miles west of Basingstoke. For garden land he looked at seven sales of small plots in or near Basingstoke. These comparables establish a garden land value of £30 per square metre to which Mr Barrett applied a 50% deduction to arrive at a lower value for open space amenity land. He then applied a further deduction of 15% to allow for the location of the reference land on a busy main road opposite an industrial estate. Finally, Mr Barrett made a deduction for the future cost of maintenance of £1,195.70. These adjustments produced a figure of £1,876.30 for the reference land which he rounded up to £2,000. If the same approach is applied to the recreation/amenity land comparable the result is a negative value.
DECISION
-
The Lands Tribunal is a judicial tribunal, that is to say I am required to make my determination of compensation solely on the evidence put before me by the parties. I can evaluate that evidence but cannot go outside it nor introduce my own evidence. I cannot prepare a valuation independently of the evidence. I cannot take into account matters such as the conduct of the parties and any offers they may have made. In short, the scope of my determination is limited by Mr Racheter’s figure of £9,000, supported by an offer, and Mr Barrett’s figure of £2,000, supported by sales of small plots of land, adjusted to reflect the limitations on the use and development of the reference land. It is against this background that I make my decision.
-
...
To continue reading
Request your trial