Decision Nº ACQ 459 2010. Upper Tribunal (Lands Chamber), 03-05-2012
| Jurisdiction | UK Non-devolved |
| Judge | George Bartlett QC PresidentMr Norman J Rose FRICS |
| Date | 03 May 2012 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | ACQ 459 2010 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2012] UKUT 22 (LC)
UTLC Case Number: ACQ/459/2010
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – compulsory purchase – three multi-storey car parks – landlord’s interest – valuation – yield – comparables – whether compensation payable for inability to dispose of acquired land as part of a corporate sale involving a larger portfolio of car parks – whether claimant entitled to compensation for capital gains tax payable on the compensation moneys – whether landlord’s parent company entitled to compensation for additional financing costs arising from the acquisition
IN THE MATTER OF A NOTICE OF REFERENCE
(2) POWERFOCAL LIMITED Second Claimant
and
THE WELSH MINISTERS Acquiring Authority
Re: The David Street Car Park,
The Tredegar Street Car Park and
The Oxford Arcade and Cardiff ShopMobility Car Park,
Cardiff
Before: President and N J Rose FRICS
Sitting at: 43-45 Bedford Square, London, WCIB 3AS
on 21– 25 and 28 November and 2 December 2011
Sitting at:
Michael Humphries QC and James Pereira instructed by S J Berwin LLP for the Claimants.
Timothy Corner QC and Paul Stinchcombe QC instructed by Geldards LLP, solicitors of Cardiff, for the Acquiring Authority.
The following cases are referred to in this decision:Melwood Units Pty Ltd v Commissioners of Main Roads [1979] AC 426
Nelson v Burnley Borough Council [2006] RVR 196
Castle House Investments Ltd v Bradford Metropolitan Borough Council [2007] RVR 277 Spirerose Ltd v Transport for London [2008] RVR 12.
Swansea City and County Council v Griffiths, sub nom v Griffiths v Swansea City and County Council, [2004] RVR 111)
Harris v Welsh Development Agency [1999] 3 EGLR 207
Ryde International Plc v London Regional Transport [2004] RVR 60
Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111
Alfred Golightly and Sons Ltd v Durham County Council [1981] RVR 229
DHN Food Distributors Ltd v Tower Hamlets LBC [1976] 1 WLR 852
Harold Holdsworth & Co (Wakefield) Ltd v Caddies [1955] 1 WLR 352, HL Sc
Tunstall v Steigman [1962] 2 QB 593
Woolfson v Strathclyde Regional Council (1979) 32 P & CR 521
Adams v Cape Industries Ltd [1990] 1 Ch 433
Holdsworth [1955] 1 WLR 352, Scottish Co-operative [1959] AC 324, Revlon [1980] FSR 85 and Commercial Solvents [1974] ECR 223
Ord v Belhaven Pubs Ltd [1988] BCC 607
Roberts v Ashford Borough Council [2005] RVR 388
Bishopsgate Space Management Ltd v London Underground Ltd [2004] RVR 89, applying Minister of Transport v Pettitt (1968) 20 P & CR 344
Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669
Clarke v Corless [2010] EWCA Civ 338
Banner Homes Group Plc v Duff Developments Ltd [2000] Ch 372
Yeoman’s Row Management Ltd v Cobbe [2008] UK HL 55
The following further cases were referred to in argument:
Horn v Sunderland [1941] 2 KB 26
Harvey v Crawley Development Corporation [1957] 1 QB 485
Director of Building and Lands v Shun Fung Ironworks Limited [1995] 2 AC 111
Lady Fox’s Executors v Commissioners of Inland Revenue [1994] 2 EGLR 185
Snook v Somerset County Council [2005] 1 EGLR 147
Clinker & Ash Limited v Southern Gas Board [1967] 19 P & CR 372
Pattle v Secretary of State for Transport [2008] UKUT 141 (LC)
Furniss (H M Inspector of Taxes) v Dawson [1984] STC 153
MacNiven (H M Inspector of Taxes) v Westmoreland Investments Limited [2001] STC 237
Barclays Mercantile Business Finance Ltd v Mawson (Inspector of Taxes) [2005] STC 1
Inland Revenue Commissioners v Scottish Provident Institution [2005] STC 15
Ingram v IRC [1986] Ch 585
Collector of Stamp Revenue v Arrowtown Assets Limited [2003] HKCFA 46
Salomon v A. Salomon and Co Ltd [1897] AC 22
Industrial Equity Limited v Blackburn (1977) 137 CLR 567
Broderip v Salomon [1895] 2 Ch 323
R v Grubb [1915] 2 KB 683
Pegler v Craven [1952] 2 QB 69
Bank of Tokyo v Karoon (CA) [1987] 1 AC 45
Trustor AV v Smallbone and Others [2001] 1 WLR 177
Re Sharpe [1980] 1 WLR 219
Hughes v Doncaster MBC [1991] 1 AC 382
Waters v Welsh Development Agency [2004] 1 WLR 1304
Kent v Union Railways [2009] EWCA Civ 363
IRC v Gray [1994] STC 60
IRC v Crossman [1937] AC 26
Duke of Buccleuch v IRC [1967] 1 AC 506
Batchelor v Kent CC [1990] 59 P & CR 357
Banco de Portugal v Waterlow [1932] AC 452
The World Beauty [1970] P 144
Lindon Print Ltd v West Midlands CC [1987] 2 EGLR 200
Judge Lee v Minister of Transport [1965] 3 WLR 553
R v SSHD ex Parte Daley [2001] UKHL 26
Fazia Ben Hashim v Abdulhadi Adi Shayif [2008] EWHC 2380
Buckinghamshire CC v SETR [2001] 81 P & CR 25
Gripple Ltd v Revenue and Customers Commissioners [2010] STC 2283
Scottish Co-operative Wholesale Society Ltd v Meyer [1959] AC 324
Revlon Inc v Cripps & Lee Ltd [1980] FSR 85
Commercial Solvents [1974] ECR 223
Wharvesto v Cheshire CC [1983] RVR 232
Solartrack Plc v London Development Agency [2009] UKUT 242
Acatos & Hutchinson Plc v Watson [1995] BCC 446
Littlewoods Mail Order Stores v McGregor [1969] 1 WLR 1241
Yukong Line Ltd v Rendsburg Investments Corporation (no.2) [1998] 1 WLR 294
Hussey v Palmer [1972] 1 WLR 1286
Ashburn Anstalt v Arnold [1988] 2 WLR 706
Simon Baynes Clarke v Michael Corless [2010] EWCA Civ 338
Pallant v Morgan [1953] Ch 43
Wrexham Maelor BC v Mac Dougall [1993] 2 EGLR 23
Dublin City v Underwood [1997] 1 IR 117
Bwllfa Collieries v The Pontypridd Water Works Company [1903] AC 426
Absolom v Central Land Board (1957) 8 P&CR 360
Trocette Property Co v Greater London Council (1974) 28 P&CR 408
Gaze v Holden [1983] EG 1013
Dhenin v Department of Transport [1990] 60 P&CR 349
Singh v Rochdale MBC (1992) 65 P&CR 75
Allen v Department of Transport (1994) 68 P&CR 347
City and County of Swansea v Griffiths [2004] EWCA Civ 398
Ridgeland Properties Ltd v Bristol City Council [2009] UK UT 102
Introduction
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This is a reference to determine the compensation payable in respect of the compulsory purchase by the Welsh Ministers (the acquiring authority) of long leasehold interests in three multi-storey car parks in the centre of Cardiff held by Bishopsgate Parking (No 2) Ltd (BPL2). The three car parks are the David Street car park; the Tredegar Street car park; and the Oxford Arcade and Cardiff ShopMobility car parks. Together they comprise the reference land. Each car park was held on an occupational underlease by National Car Parks Ltd (NCP). BPL2 is the wholly owned subsidiary of the second claimant, Powerfocal Ltd (PFL).
2. BPL2 claims compensation as follows:
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Under rule (2) of section 5 of the Land Compensation Act 1961:
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For the value of its interests in the reference land.
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Under rule (6) of section 5:
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For additional losses by reference to the sale of the car parks as separate properties as opposed to their sale as part of a larger portfolio;
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For additional losses by reference to the inability to dispose of the reference land through a corporate vehicle;
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For its liability for corporation tax on chargeable gains (CGT).
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Plus:
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Professional fees in connection with the above.
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Statutory interest.
3. PFL claims compensation as follows:
(a) Under rule (6):
(i) For the costs of servicing the loan by reference to the financing facilities by which the portfolio was purchased.
(ii) For financing costs associated with the pre-payment of such financing facilities and hedging break costs, and
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Fee debenture liability.
Plus:
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Professional fees in connection with the above.
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Statutory interest.
4. On 28 February 2011 the Tribunal ordered a split hearing of the reference. This is the Tribunal’s decision following the first hearing, which was limited to certain of the heads of claim and two preliminary issues of law, as follows:
For final Determination
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The value of the reference land,
(b) The loss (if any) through the sale of the reference land as separate properties, as opposed to their sale as part of a larger portfolio.
(c) Compensation for professional fees in respect of (a) and (b) above.
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Statutory interest on the above.
Preliminary Issues of Law
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Whether BPL2 is entitled to claim for consequential loss under rule (6) in respect of any capital gains tax (CGT).
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Whether PFL is entitled to claim for...
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