Decision Nº ACQ 46 2007. Upper Tribunal (Lands Chamber), 20-01-2010
| Jurisdiction | UK Non-devolved |
| Judge | Mr Norman J Rose FRICS |
| Date | 20 January 2010 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | ACQ 46 2007 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2009] UKUT 281 (LC)
LT Case Number: ACQ/46/2007
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – compulsory purchase – open storage land acquired as part of Morrisons foodstore – whether Case 2 of First Schedule to Land Compensation Act 1961 applies where other land not developed in accordance with current development plan – whether demand for foodstore existed – whether land required for foodstore would have been made available – development value – apportionment between freeholder and lessee –whether Pointe Gourde should be applied and, if so, the extent of the scheme to be disregarded – compensation awarded £79,200.
IN THE MATTER OF A NOTICE OF REFERENCE
THE COUNCIL OF THE CITY Acquiring
OF NEWCASTLE UPON TYNE Authority
Re: Land at Roger Street
Byker
Newcastle upon Tyne
Before: N J Rose FRICS
Sitting at: South Tyneside Law Courts
on 10-12 March 2009 and at
Newcastle Combined Court on 3-5 November 2009
Robert Fookes, instructed by Watson Burton LLP, solicitors of Newcastle for the Claimant
Charles Morgan, instructed by Legal Services Division, Newcastle City Council, for the acquiring authority.
Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565
Waters v Welsh Development Agency [2004] 1WLR 1304
Transport for London v Spirerose Ltd (In Administration) [2009] 1 WLR 1797
Viscount Camrose v Basingstoke Corporation [1966] 1 WLR 100
Wilson v Liverpool Corporation [1971] 1 WLR 302
Gregg v Scott [2005] AC176
Sutton v Secretary of State for the Environment [1984] 1 EGLR 173
Abbey Homesteads (Developments) Ltd v Northamptonshire CC (1992) 64 P & CR 377
Mon Tresor & Mon Desert Ltd v Ministry of Housing and Lands [2008] 38 EG 140
Optical Express (Southern) Ltd v Birmingham City Council [2005] RVR 230
Chapman Lowry & Puttick Ltd v Chichester DC (1984) 47 P & CR 674
Batchelor v Kent CC (1989) 59 P & CR 357
Urban Edge Group Ltd v London Underground Ltd LT Ref: ACQ/186/2005 (not reported)
DECISION Introduction-
This is a reference to determine the compensation payable by the Council of the City of Newcastle upon Tyne (NCC) to Mr Keith Wall Graham (the Claimant). The claim relates to the value of the leasehold interest in 2,672 sq m (0.66 acre) of open storage land at Roger Street, Byker, Newcastle upon Tyne (the reference land). The land was compulsorily acquired under the Council of the City of Newcastle upon Tyne (Shields Road/Heaton Park Road) Compulsory Purchase Order 1999 (the CPO).
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The Claimant’s case is that the market value of the reference land at the valuation date, 24 April 2001, was £819,738. NCC contend for a figure of £79,200. In addition the Claimant claimed the cost of professional advice in preparing the claim, but no evidence was submitted to support this item.
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Mr Robert Fookes of counsel appeared for the Claimant. He called one witness of fact, Mr David Slesenger. Mr Fookes also called three expert witnesses: Mr Nigel Dyson BA, MSc, MILT, MIHT, of Mayer Brown Ltd, Newcastle office (transport and highway matters); Mr Jonathan Wallace BA, MSc, MRTPI, a director of Nathaniel Lichfield and Partners Ltd, based at their Newcastle office (planning) and Mr Martyn Lytollis BSc, FRICS, managing director of Storeys: ssp, based at their Newcastle upon Tyne office (valuation).
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Counsel for NCC, Mr Charles Morgan, called two factual witnesses: Mr Christopher Evenson and Mr Robert Newton. He also called two expert witnesses: Mr M D Firth, Citywide Projects Group Manager with NCC (regeneration) and Mr Ranald Harris BSc (Hons), MRICS, a partner in Knight Frank, practising from his firm’s Newcastle upon Tyne office (valuation).
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I inspected the large foodstore, which now stands on the site of the reference land, and the surrounding area, in company with Mr Lytollis and Mr Harris following an adjournment on the fifth day of the hearing.
Facts
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In the light of a statement of agreed facts and the evidence I find the following facts.
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The reference land forms part of the Shields Road District Centre. Shields Road is located in Byker, in the East End of Newcastle. It is the largest and most important district centre in the city, with many shops and associated facilities serving a large catchment population. The District Centre is well served by public transport. It forms the hub of the local bus network and it has a Metro rail station two stops from the city centre. The centre is bounded to the south by the Shields Road Bypass (A187), which takes through traffic away from the shopping area and the northern boundary is formed by the east coast main railway line.
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The CPO land is located at the western end of the District Centre, approximately one mile east of the city centre. It is bounded by Shields Road to the south, the railway line to the north, Robson Street and Wilfred Street to the west and industrial properties to the east. The eastern boundary has a frontage to Roger Street and access from North View. The CPO land comprised a mix of retail, service, commercial, industrial and residential uses. There were 10 retail units fronting Shields Road and Wilfred Street, some with upper floor residential flats; 2 public houses; a club; derelict and partially demolished industrial buildings located north and east of Robson Street; industrial buildings and a vacant industrial site off Roger Street; NCC’s Cityworks depot; dismantled railway land and areas of highway (Roger Street and Toward Street).
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The reference land was described in the CPO as Plot 28. The Claimant enjoyed full access rights to it over land between CPO Plots 23 and 27, amounting to an additional area of 365 sq m (0.09 acre). The land was cleared of buildings at the valuation date. It was accessed from Roger Street via Heaton Park Road. As at the valuation date, the reference land was bounded by NCC land to the north and east, land owned by Wm Morrison Supermarkets Plc (Morrisons) to the west and south, and land owned by Holme Dodsworth Metals Ltd and Mr John Saint to the east and south.
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The Claimant owned the residue of a long leasehold interest in the reference land terminating in March 2037. There were thus approximately 36 years unexpired at the valuation date. The lease was on full repairing and insuring terms at a fixed rent of £350 per annum exclusive. In common with the lessor and the occupiers of the adjoining premises to the west, the lessee had full access rights over the access road. The lessee was responsible for meeting one half of the cost of maintaining this road. No building or structure could be erected on the premises, and no buildings could be altered, without the prior written consent of the lessor. The use of the premises was restricted to that of “(a) public garage and repair shop and lock-up motor houses and (b) open storage and sale of caravans (except by auction)”. There was a qualified covenant against assigning or sub-letting the premises in whole or in part.
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Since the valuation date the reference land, together with adjoining land together referred to as the Roger Street site (the Site), has been developed as a retail food supermarket with associated car parking and a petrol filling station and car wash, operated by Morrisons.
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At the valuation date the operative Development Plan was The Newcastle upon Tyne Unitary Development Plan, adopted in January 1998. The reference land, and most of the CPO land, formed part of the area known as Shields Road West which, by policy ED3.1, was allocated for industrial and business use, where
“development will be restricted to Classes B2, B1 and B8 of the Use Classes Order 1987.”
The reference land and most of the CPO land was outside the area, to the east, which was identified in the UDP as the Shields Road District Centre shopping area.
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The reference land and most of the CPO land was within an area delineated in the UDP as an Action Area. However, no specific action area policies or guidance were set out, apart from emphasising that the...
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