Decision Nº ACQ 153 2012. Upper Tribunal (Lands Chamber), 08-07-2014
| Jurisdiction | UK Non-devolved |
| Judge | Mr Andrew J Trott FRICS |
| Date | 08 July 2014 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | ACQ 153 2012 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2014] UKUT 0264 (LC)
UTLC Case Number: ACQ/153/2012
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – preliminary issue – pressure relief shaft constructed under licence – purpose of compulsory acquisition – whether land specially suitable for use as PRS – meaning of “special Act” under s7 of Compulsory Purchase Act 1965 – whether valuation can take account of cost saving to acquiring authority of not having to remove shaft
IN THE MATTER OF A NOTICE OF REFERENCE
BETWEEN CHRISTOPHER MILLER Claimant
and
NETWORK RAIL INFRASTRUCTURE LIMITED Acquiring Authority
Re: Land at Oaktree Hill Barn,
Church Stowe
Northampton
NN7 4SG
Before: A J Trott FRICS
Sitting at: 43-45 Bedford Square, London WC1B 3AS
On: 19-20 February 2014
The Claimant appeared in person
Richard Honey, instructed by Schofield Sweeney LLP, for the Acquiring Authority
The following cases are referred to in this decision:
Inland Revenue Commissioners v Clay and Buchanan [1914] 3 KB 466
Lambe v Secretary of State for War [1955] 2 QB 612
Waters and others v Welsh Development Agency [2004] 1 WLR 1304 (CA) and [2001] 1EGLR 185 (LT)
Port of London Authority v Transport for London [2008] RVR 93
Batchelor v Kent County Council (1990) 59 P&CR 357
Laing Homes Limited v Eastleigh Borough Council (1979) 250 EG 350, 459
Montague v Long (1972) 24 P&CR 240
Moto Hospitality v Secretary of State for Transport [2008] 1 WLR 2822
Transport for London v Spirerose [2009] 1 WLR 1797
Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] AC 302 (the "Indian" case)
Rush & Tompkins Limited v Greater London Council [1989] AC1280
Ofulue v Bossert [2009] 1 AC 990
Unilever v Procter and Gamble [2000] 1 WLR 2436
Schering Corporation v Cipla Limited and Another [2004] EWHC 2587 (Ch)
The following decisions were referred to in argument:
Birmingham District Council v Morris and Jacombs Ltd (1977) 33 P&CR 27
Fletcher Estates v Secretary of State for the Environment [2000] 2 AC 307
Graham v Newcastle upon Tyne City Council [2009] UKUT 281 (LC)
Hertfordshire County Council v Ozanne [1991] 1 WLR 105
Inland Revenue Commissioners v Clay [1914] 3 KB 466
Potter v London Borough of Hillingdon [2010] UKUT 212 (LC)
RMC (UK) Ltd v Greenwich London Borough Council [2005] RVR 140
Myers v Milton Keynes Development Corporation [1974] 1 WLR 696
Munton v Newham London Borough Council (1976) 32 P&CR 269
Bwllfa & Merthyr Dare v Pontypridd Waterworks Company [1903] AC 426
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This is a reference made by the claimant, Mr Christopher Miller, for the determination of compensation in respect of the compulsory purchase of land (“plot 11a”) by the acquiring authority, Network Rail Infrastructure Limited (“NRIL”) under the Network Rail (West Coast Main Line) (Stowe Hill) Order 2006 (“the 2006 order”).
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The 2006 order granted NRIL powers to acquire plot 11a for the purposes of using, maintaining or gaining access to a pressure relief shaft which it had previously built under licence from the claimant. The 2006 order also granted NRIL powers to compulsorily acquire a right of way on foot only over plot 11b for the purpose of gaining access to plot 11a. Plot 11b is not included in the reference. The 2006 order did not authorise the construction of works, and this is stated in terms in the Explanatory Note to the order. The pressure relief shaft is one of four such shafts serving the West Coast Main Line (“WCML”) as it runs through Stowe Hill tunnel.
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The freehold interest in plot 11a was owned by the claimant and formed part of the property known as Oaktree Hill Barn, Church Stowe, Northampton NN7 4SG.
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The pressure relief shaft which NRIL had constructed on plot 11a is circular in section with an external diameter at surface level of 3.5m. It stands approximately 2.7m above ground level. It descends vertically to the side of the WCML tracks and then forms a right-angle to join the tunnel. The shaft therefore has an “L-shape” in vertical section. As its name suggests the purpose of the shaft is to relieve the air pressure created by the piston effect of a train as it travels through the tunnel. This prevents aural discomfort to passengers. There is no mechanical ventilation and the shaft contains no plant or machinery.
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On 31 July 2013 the Tribunal ordered that the following matters should be determined as preliminary issues:
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Whether, in terms of section 5(3) of the Land Compensation Act 1961, the purpose for which plot 11a was acquired was using, maintaining or gaining access to the pressure relief shaft, as defined in article 3 of the Network Rail (West Coast Main Line) (Stowe Hill) Order 2006.
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Whether, given section 5(3) and the Pointe Gourde principle, an enhanced value can be given to plot 11a over and above the amount the land would have fetched if sold in the open market because of NRIL’s special interest in purchasing the land.
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Whether, in relation to the compulsory acquisition of plot 11a, for the purposes of section 7 of the Compulsory Purchase Act 1965, the “special Act” comprises the Network Rail (West Coat Main Line) (Stowe Hill) Order 2006 (together with sections 1 and 5 of the Transports and Works Act 1992).
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Whether there is any basis in law for the claimant to claim compensation for part of the financial gain or cost saving alleged to have been made by NRIL as result of the making of the Network Rail (West Coast Main Line) (Stowe Hill) Order 2006.
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The claimant appeared in person. Mr Richard Honey of counsel appeared for the acquiring authority and called Mr Stephen Mellor MRICS, Property Services Manager (South East) of NRIL, as a witness of fact.
Chronology
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I determine the following chronology from the evidence and the statement of agreed facts produced by the parties.
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The history of the acquisition goes back to 25 February 2000 when Railtrack plc (the predecessor of NRIL) gave notice to the claimant that it was applying for an order under the Transport and Works Act 1992 authorising, inter alia, the compulsory purchase of 6,130m2 of “pasture land adjacent to A5 and tunnel (Stowe Hill Tunnel) carrying railway (West Coast Main Line).”
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The claimant objected to the proposed order on 13 March 2000 and the parties subsequently entered negotiations for the purchase of the land.
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On 22 December 2000 Railtrack submitted a planning application for development described as a “pressure relief shaft and pedestrian access gate.”
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On 19 January 2001 Railtrack offered the claimant the sum of £1,000 for the freehold interest in an area of 100m2 with the pressure relief shaft head in the centre. In addition Railtrack and their contractors would have the right to occupy up to one acre for the period 1 April to 31 December 2001. There were also to be various accommodation works.
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Although Railtrack considered that they had reached agreement with the claimant, there was no agreement for the freehold acquisition of the land in writing signed by the parties.
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On 7 February 2001 planning permission was granted for the construction of the pressure relief shaft.
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Heads of terms for the freehold purchase were sent to the claimant on 22 February 2001.
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On 27 March 2001 the claimant and Railtrack completed a licence agreement under which Railtrack were granted access to the site and a working area of 2,450m2 to construct the pressure relief shaft. The licence period was from 1 May 2001 until 31 December 2001 and a licence fee of £200 was paid. Construction of the shaft commenced in June 2001 but was not completed by the expiry of the licence period.
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A second licence was entered into on 21 January 2002 covering the period 1 January 2002 to 30 June 2002. The licence fee was £300. The works were substantially completed by the end of this second licence.
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On 25 April 2002 Messrs Cawood Jeffries submitted a claim for compensation on behalf of the claimant even though Railtrack did not at that time have compulsory purchase powers. The claim in respect of the land (to be) taken was £1,000 together with a claim for injurious affection to retained land of £300,000.
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On 30 June 2002 the inspector issued his report into...
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