Decision Nº ACQ 320 2010. Upper Tribunal (Lands Chamber), 30-08-2012
| Jurisdiction | UK Non-devolved |
| Judge | George Bartlett QC PresidentMr Paul Francis FRICS |
| Date | 30 August 2012 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | ACQ 320 2010 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2012] UKUT 193 (LC)
UTLC Case Number: ACQ/320/2010
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – compulsory purchase –preliminary issues – injurious affection – right of way – interference with right of way by development carried out on land appropriated by local authority for planning purposes – whether compensation payable on basis of ransom value – held it was not – Town and Country Planning Act 1990 s 237
IN THE MATTER OF A NOTICE OF REFERENCE
and
BRECKLAND DISTRICT COUNCIL Compensating
Authority
Re: Shop and premises
53/55 High Street
Dereham
Norfolk
Before: The President and P R Francis FRICS
Sitting at: 43-45 Bedford Square, London, WCIB 3AS
on 29 May 2012
Sitting at:
Christiaan Zwart instructed by Stevensons, solicitors of Dereham, for the claimant
Barry Denyer-Green instructed by Lloyd Gibson, Solicitor, Breckland Council, for the compensating authority.
Thames Water Utilities Ltd v Oxford City Council [1999] EGLR 167
B & Q Plc v Liverpool & Lancashire Properties Ltd [2001] 1 EGLR 92
Hammersmith & City Rly Co v Brand (1869) LR 4 HL 171
Allen v Gulf Oil Ltd [1981] AC 1001
Kent County Council v Union Railways (North) Ltd [2009] RVR 146
Hoveringham Gravels Ltd v Chiltern District Council (1978) 35 P & CR 295
Argyle Motors Ltd v Birkenhead Corpn [1975] AC 99
The following further cases were cited in argument:
Chilton v Telford Development Corporation [1987] 3 All ER 992
Hughes v Doncaster Metropolitan Borough Council [1991] 1 AC 282
R (Sainsbury’s Supermarkets Ltd) v Wolverhampton District Council [2011] 1 AC 437
Transport for London v Spirerose [2009] 1 WLR 1797
Tomkins v Tomkins [1978] P 170
Re Ellenborough Park [1956] Ch 131
Brutus v Couzens [1973] AC 854
North London Railway Co v Metropolitan Board of Works (1859) 28 LJ Ch 909
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997
Kirby v School Board for Harrogate [1896] 1 Ch 437
Clark v School Board for London (1874) LR 9 Ch App 120
Oppenheimer v Minister of Transport [1942] 1 KB 242
Marten v Flight Refuelling Ltd [1962] Ch 115
Harris v Flower (1905) 74 LJ Ch
Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243
Cowper-Essex v Acton Local Board (1889) LR 14 App Cas 153
Wildtree Hotels Ltd v Harrow London Borough Council [2001] 2 AC 1
In re Elm Avenue [1984] 2 All ER 632
Kettering Borough Council v Anglia Water Services [2001] 2 EGLR 157
Wrotham Park Settled Estates v Hertsmere Borough Council [1993] 2 EGLR 15
Dowty Boulton Paul Ltd v Wolverhampton Corpn (No 2) [1976] Ch13
Burkinshaw v Birmingham and Oxford Junction Railway Co (1850) 5 Exch Rep 475
Attorney-General v Manchester Corpn [1931] Ch 254
DECISION ON PRELIMINARY ISSUESIntroduction
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The claimant in this reference is the owner of a furniture shop at 53/55 High Street at Dereham in Norfolk, where he has carried on business since 1993. At the rear of the premises is a separate workshop building. Until 2004 there was access to the land at the rear of the shop across land to the north that was owned by the council. This access was wide enough for a large furniture van, and the claimant had the right to use it under an easement benefiting the land on which the shop stands. Development carried out on the land owned by the council blocked up the access, and the claimant claims compensation for loss of the access under section 237 of the Town and Country Planning Act 1990. Compensation is sought not just for the injurious affection of the claimant’s dominant tenement but also for the value of the easement, which is said to consist of the amount that the claimant would have been able to extract from the council as owner of the servient tenement in order to secure the extinguishment of the easement.
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The council accept that the claimant is entitled to compensation for injurious affection, consisting of the diminution in value of the shop premises as a consequence of the loss of the right of way, but they deny that he is entitled to compensation based on the development value of the council’s land. On their application on 30 August 2011 the President ordered that the following two issues, identifying the respective contentions of the parties, be determined as preliminary issues:
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Whether the claimant is entitled to claim compensation under section 237 of the Town and Country Planning Act 1990 on the basis that the benefit of right of way to numbers 53 and 53a High Street, Dereham (“No 53 High Street”) has been appropriated by the acquiring authority and that compensation should be payable for that appropriation on a ransom value basis under section 63 of the Lands Clauses Consolidation Act 1845 for the loss of a ransom value that would otherwise have benefited No 53 High Street on the ground that the claimant was entitled to and has lost the right to grant or refuse consent to the development obstructing the said right of way.
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Whether the claimant is entitled to compensation under section 237 of the 1990 Act and in accordance with section 10 of the Compulsory Purchase Act 1965 (alternatively section 68 of the Lands Clauses Consolidation Act 1845) on the basis only that on a claim for compensation under these statutory provisions the compensation is limited to the diminution in value of No 53 High Street by reason of the lawful obstruction of the said right of way and lawful use of the land over which the right of way was exercisable, without regard to any ransom value.
The facts
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There is no disagreement as to the facts. The claimant is the registered freehold proprietor of land known as 53 and 53a High Street, Dereham, registered at the Land Registry under Title No NK150149. Number 53 is occupied by the claimant, together with number 55 High Street, which he also owns, as retail premises for the purposes of his business as a retailer and restorer of furniture. High Street runs north-south, and the claimant’s land fronts it on the east. To the rear (east) of number 53 is small open area, and beyond that is a workshop; to the east of the workshop is a smaller open area, and finally beyond that is a storage shed. All of these are within Title No NK150149. We will refer to this as “the land”.
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The land has the benefit of a right of way to pass and repass with or without vehicles over an accessway which is situated on land to the north that is owned by the council and is comprised in registered Title No NK102856 (which we will refer to as the council land). The terms of the right of way are noted at entry number 2 in the Property Register of the official copy of the registered title, and the servient land is shown tinted blue on the plan thereto. The right of way is L-shaped and runs from the High Street, behind land abutting the High Street, to the open land between the shop and the workshop.
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The council land, together with other adjoining land, was acquired by the council in 1996 by agreement, pursuant to section 120 of the Local Government Act 1972. On 13 March 2003 the council resolved under section 122 of the Act to appropriate this land, and other land, for planning purposes. The resolution was confirmed on 26 February 2004. On 14 November 2003 the council granted planning permission for the development of the council land and the other land for mixed uses. On 21 April 2004 they granted a lease to Dencora Dereham Retail Partnership LLP, who then proceeded to implement the planning permission and develop the land. On 19 April 2004 a fence was erected around the council land, obstructing access to the servient land, and the servient land has now been built on. The claimant can no longer exercise the right of way. The building constructed on the servient land is now used for retail purposes in accordance with the planning permission. Construction was completed on or about 17 June 2005.
The statutory provisions
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Section 237, so far as material, provides as follows:
“(1) Subject to subsection (3), the erection, construction or carrying out or maintenance of any building or work on land which has been acquired or appropriated by a local authority for planning purposes (whether done by the local authority or by a person deriving...
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