Decision Nº ACQ 452 2009. Upper Tribunal (Lands Chamber), 06-10-2015
| Jurisdiction | UK Non-devolved |
| Judge | Mr Andrew J Trott FRICS |
| Date | 06 October 2015 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | ACQ 452 2009 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2015] UKUT 0439 (LC)
UTLC Case Number: ACQ/452/2009
ACQ/454/2009
ACQ/460/2009
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – compulsory purchase – interim decision – issues of fact – credibility of claimants’ evidence – whether leases genuine – whether multiple businesses – accounting evidence and tax returns – nature and extent of scheme – base year for claim – shadow period losses – injurious affection – disturbance – whether second relocation too remote – cost of works – personal time
IN THE MATTER OF FIVE NOTICES OF REFERENCE
BETWEEN (1) THARIQ MAHMOOD MOHAMMED Claimants in(2) SAJIT PERVAIS MOHAMMED ACQ/452/2009
(3) KISHWAR MOHAMMED (Consolidated)
(4) SHABREEN ZAHIRE MOHAMMED Claimant in
ACQ/454/2009
(5) MASRIQ BAL MOHAMMED Claimant in
ACQ/460/2009
and
NEWCASTLE CITY COUNCIL Acquiring Authority
Re: 15 Waterloo Street,
1 and 1A Sunderland Street,
Newcastle-upon-Tyne
Tyne & Wear
NE1 4DE
Before: A J Trott FRICS
Sitting at: North Shields IAT, 2nd Floor Kings Court, Earl Grey Way, Royal Quays, North Shields, Tyne & Wear NE29 6AR
on
26-30 January and 2-5 February 2015
Barry Denyer-Green and Toby Boncey, instructed by C J Thompson, Solicitor, for the Claimants
Vincent Fraser QC, instructed by the Legal Services Department, Newcastle City Council, for the Acquiring Authority.
© CROWN COPYRIGHT 2015
The following cases are referred to in this decision:
Snook v West Riding Investments Limited [1967] 2 QB 786
AG Securities v Vaughan and Antoniades v Villiers [1990] 1 AC 417
National Westminster Bank Plc v Jones [2001] 1 BCLC 98
Cobbe v Yeoman’s Row Management Limited [2008] 1 WLR 1752
Wrexham Maelor Borough Council v McDougall [1993] 2 EGLR 23
Potter v London Borough of Hillingdon [2010] UKUT 212 (LC)
Transport for London v Spirerose Limited [2009] 1 WLR 1797
Waters v Welsh Development Agency [2004] 1 WLR 1304
Pointe Gourde Quarrying and Transport Company Limited v Sub-Intendent of Crown Lands [1947] AC 565
Hanbury-Tenison v Monmouthshire County Council [2014] UKUT 0531 (LC)
Davy v Leeds Corporation [1965] 1 WLR 445
Richards v Somerset County Council [2001] RVR 204
Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111
Ramac Holdings Ltd v Kent County Council [2014] UKUT 109 (LC)
Emslie and Simpson Ltd v Aberdeen City District Council [1994] 1 EGLR 33
Pattle v Secretary of State for Transport [2009] UKUT 141 (LC)
Optical Express (Southern) Ltd v Birmingham City Council [2005] 2 EGLR 141
Hughes v Doncaster Metropolitan Borough Council [1991] 1 AC 382
Budgen v Secretary of State for Wales [1985] 2 EGLR 203
Welford v Transport for London [2010] UKUT 99 (LC)
Wildtree Hotels v London Borough of Harrow [2000] UKHL 70
Aberdeen City District Council v Sim [1982] 2 EGLR 22
Prasad v Wolverhampton Borough Council [1983] 1 EGLR 10
Horn v Sunderland Co-operation [1941] 2 KB 26
Cowper Essex v Acton Local Board (1889) 14 App Cas 153
Holditch v Canadian Northern Ontario Railway [1916] 1 AC 536 (PC)
Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243
Bede Distributors Ltd v Newcastle - upon -Tyne Corporation (1973) 26 P&CR 298
Lancaster City Council v Thomas Newall Limited [2013] EWCA Civ 802
Thomas Newall Limited v Lancaster City Council [2010] UKUT 2 (LC)
The following further cases were referred to in argument:
Street v Mountford [1985] 1 AC 809
Pyrah (Donnington) Limited v Northampton County Council [1982] 2 EGLR 195
Birmingham Corporation v West Midlands Baptist (Trust) Association [1970] AC 874
Cedar Rapids Manufacturing and Power Co v Lacoste [1914] AC 569
Saglam v Docklands Light Railway [2008] RVR 59
Melwood Units Pty Ltd v Commissioners of Main Roads [1979] 1 All ER 161
Segama v Penny Le Roy Ltd (1984) 269 EG 322
Buccleuch v Metropolitan Board of Works (1872) LR 5 HL 418
Ripley v Great Northern Railway (1875) LR 10 Ch 435
Holliday v Breckland Council [2012] UKUT 193
Colls v Home and Colonial Stores Ltd [1904] AC 179
Carr-Saunders v Dick McNeil Associates [1986] Ch 922
Ough v King [1967] 1 WLR 1547
Deakins v Hookings [1994] 1 EGLR 190
Regan v Paul (2006) EWHC 1941
Hortons Estate Ltd v James Beattie [1927] 1 Ch 75
Midtown Ltd v City of London Real Property Co Ltd [2005] 1 EGLR 65
London, Tilbury & Southend Rly and Gower’s Walk School (1889) 24 QBD 326
Harvey v Crawley Development Corporation [1957] 1 QB 485
Commissioner of Highways v Shipp Bros Pty Ltd (1978) 19 SASR 215
Afzal v Rochdale MBC [1980] 1 EGLR 157
Tamplins Brewery Ltd v Brighton CBC (1971) 22 P&CR 746
Dawson v Great Northern & City Railway Co [1905] 1 KB 260
Fishenden v Higgs and Hill Ltd [1935] 153 LT 128
Scott v Scott [2006] FamCA 1379
Trocette Property Co v Greater London Council [1974] 28 P&CR 408
Investors Compensation Scheme Limited v West Bromwich Building Society (No.1) [1998] 1 WLR 896
Strachey v Ramage [2008] EWCA Civ 384
Lyle v Richards (1866) LR 1 HL 222
Ali v Lane [2007] 1 EG 71
Haycocks v Neville [2007] 1 EGLR 78
Oppenheimer v Ministry of Transport [1942] 1 KB 242
Hamilton v Clanricarde (Earl) [1762] 1 Bro PC 341, 1 ER 608
Heard v Piley [1868-1869] LR 4 Ch App 548
Worboys v Carter [1987] 2 EGLR 1 (CA)
Lyon v Reed [1844] 13 M&W 285
Holme v Brunskill [1878] 3 QBD 495
Walsh v Lonsdale (1882) LR 21 Ch D9
INTERIM DECISION
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These three references concern the compulsory purchase of the properties known as 15 Waterloo Street, and 1 and 1A Sunderland Street, Newcastle-upon-Tyne NE1 4DE which are referred to collectively as “the reference property” and separately as “15 W St”, “1 S St” and “1A S St”.
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The reference property was acquired by Newcastle City Council (“the acquiring authority” or “the council”) under the Newcastle-upon-Tyne (St James Boulevard/Waterloo Street) Compulsory Purchase Order 2002. The agreed valuation date is 29 January 2004.
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This appears to be a straightforward claim for the value of a takeaway fish and chip shop with residential upper parts (purchased in 1996 for £40,000) together with an associated claim for disturbance. The reality is very different and these references are the culmination of a complex, intractable and acrimonious dispute with claims amounting to approximately £8.54m in the claimants’ latest re: re: re: amended statements of case. These are the oldest references before the Tribunal and even after a nine day substantive hearing only the evidence of fact has been heard. A further hearing is to be listed to consider the evidence of 10 expert witnesses.
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The dispute may be summarised as follows:
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The claimants are members of a single family. Thariq, Sajit, Masriq and Shabreen Mohammed are siblings (referred to hereafter with the agreement of the parties as “TM”, “SM”, “MM” and “ShM” respectively). The fifth claimant, Kishwar Mohammed (“KM”), is the wife of SM. Much of the evidence was concerned with the family’s arrangements for the occupation and ownership of land and for the running of the business(es) thereon.
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TM, as freeholder of the reference property, claims to have granted three nineteen year leases of different parts of that property on 1 June 2001:
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Part of 15 W St, known as Unit A, was leased to SM;
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Part of 15 W St, known as Unit B, was leased to ShM; and
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1A S St was leased to MM.
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The acquiring authority submit that these leases were not genuine transactions and, even if they were, they would not be effective.
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The three leases said to have been granted by TM correlate to three businesses that the claimants say were conducted from the reference property. The main business, a takeaway fish and chip shop known as the “Happy Chip” and operated by SM and KM, is said to have occupied Unit A at 15 W St. The existence of this business is not disputed. The other two businesses are said to be the “Convenience Store” operated by MM from 1A S St; and “Especially 4 You”, a clothing and jewellery business, operated by ShM and another sibling, Zeibeda Mohammed (“ZM”), from Unit B at 15 W St. (ZM transferred her entitlement to any compensation to ShM under a deed of assignment dated 24 November 2009 and is therefore not a claimant in these proceedings.) The acquiring authority deny that the Convenience Store or Especially 4 You operated as separate businesses, or at all, from the reference property, describing the claims as “wholly implausible.”
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As well as claims for the acquisition of the leases, SM and MM claim compensation for disturbance for the relocation...
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