Decision Nº ACQ 93-9 1999. Upper Tribunal (Lands Chamber), 03-11-2000
| Jurisdiction | UK Non-devolved |
| Judge | George Bartlett QC President |
| Date | 03 November 2000 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | ACQ 93-9 1999 |
COMPENSATION - Compulsory purchase of land for purpose of nature reserve to compensate for loss of SSSI caused by Cardiff Bay Barrage – preliminary issues - Land Compensation Act 1961 s 5 rule (3) - Pointe Gourde rule - held land had no special suitability or adaptability for purpose - rule (3) did not apply - public purpose of acquisition must be left out of account - scheme underlying acquisition was Cardiff Bay Barrage
IN THE MATTER of a NOTICE OF REFERENCE
BETWEEN MELVILLE JOHN WATERS and Claimants
ELIZABETH LILLIAN WATERS
WILLIAM NEVILLE WATERS
HENRY DYSON PREECE andSARAH H PREECE
ROGER WILLIAMS
STEPHEN WATERS
and
THE WELSH DEVELOPMENT AGENCY Acquiring
Authority
Re: Various plots of land at
Nash, Newport
South Wales
Before: The President
Sitting at 48/49 Chancery Lane, London WC2
on 18, 19, 20 and 21 September
The following cases are referred to in this decision:
Pointe Gourde Quarrying and Transport Company Limited v Sub Intendent of Crown Lands [1947] AC 565
Batchelor v Kent County Council (1989) 59 P & CR 357
Lambe v Secretary of State for War [1955] 2 QB 612
Laing Homes Ltd v Eastleigh Borough Council (1978) 250 EG 350
Trustees of the Nonentities Society v Kidderminster BC (1971) 22 P & CR 224
Fraser v City of Fraserville [1917] AC 187
Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426
Davy v Leeds Corporation [1964] 1 WLR 1218, [1965] 1 WLR 445
Wilson v Liverpool Corporation [1971] 1 WLR 302
Re Ossalinsky and Manchester Corporation (1883)
Rugby Joint Water Board v Foottit [1973] AC 202
In re Lucas and Chesterfield Gas and Water Board [1909] 1 KB 16
Horn v Sunderland Corporation [1941] 2 KB 26
Director of Buildings and Land v Shun Fung Ironworks Ltd [1995] 2 AC 111
Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] AC 302
Camrose v Basingstoke Corpn [1966] 1 WLR 1100
Myers v Milton Keynes Development Corpn [1974] 1 WLR 696
St John the Baptist Hospital v Canterbury City Council [1970] RVR 608
Birmingham City Council v Morris and Jacombs Ltd (1976) 33 P & CR 27
Bird v Wakefield District Council (1978) 37 P & CR 478
Cronin v Swansea City Council (1972) 24 P & CR 382
Bolton Metropolitan Borough Council v Tudor Properties Ltd (19 April 2000)
Sprinz v Kingston upon Hull City Council (1975) 30 P & CR 273
Pye v Kingswood Borough Council [1998] 2 EGLR
David Holgate QC and Timothy Morshead instructed by Jacklyn Dawson and Meyrick Williams, solicitors of Newport, for the claimants.
Anthony Porten QC and Adrian Trevelyan Thomas instructed by Roy J Thomas, Legal Director of the Welsh Development Agency, for the acquiring authority.
DECISION ON PRELIMINARY ISSUES
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The preliminary issues which, on the application of the claimants, the Tribunal has ordered to be determined at a preliminary hearing, arise on claims for compensation by landowners at Nash, near Newport, Gwent. Their land is low-lying farmland adjacent to the Severn Estuary. The various parcels total about 225 acres. They were included, along with other land, in the Land Authority for Wales (Gwent Levels Wetlands Reserve, Newport) Compulsory Purchase Order 1997. Under that CPO the Land Authority for Wales (LAW) (whose successor is the Welsh Development Agency (WDA)) were empowered to acquire about 1,000 acres of land bordering the Severn Estuary for the purpose of disposing of it for the development and maintenance thereafter of a wetlands reserve involving the creation of saline pools, reedbeds, and managed grassland. A general vesting declaration was made on 26 January 1998, and on vesting the claimants’ land was transferred to the Cardiff Bay Development Corporation (CBDC) who themselves transferred it immediately to the Countryside Council for Wales (CCW).
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The proposal for a Gwent Levels wetland nature reserve arose from a scheme to construct a barrage across Cardiff Bay, which lies 15 km or so to the west. The permanent inundation of the bay meant the loss of an extensive area within the bay of mudflats and saltings which supported large colonies of birds, principally dunlin and redshank, and was a Site of Special Scientific Interest. The Gwent Levels nature reserve was intended to compensate for the loss of the habitats in Cardiff Bay. The land acquired from the claimants was agricultural land, but they say that the loss of the habitats in Cardiff Bay has given their land a value in excess of agricultural value because, together with the rest of the 1000 acres, it constitutes the most suitable area for the nature reserve which it was necessary to establish as a compensatory measure. The claimants say that in the circumstances their land had a ransom value and should be valued accordingly.
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In the light of this claim, and the rejection of it by the acquiring authority, the following preliminary issues have been identified for determination:
(1) Whether or not the intended use of the land taken as a nature reserve amounts to a purpose to which that land could be applied only in pursuance of statutory powers, or which there is no market apart from the requirements of any authority possessing compulsory purchase powers.
(2) Whether the scheme underlying the acquisition is the intended use of the land taken as a nature reserve or the construction of the Cardiff Bay Barrage; and whether or not it is necessary to discount for the purposes of valuation any increase in the value of the land taken as being due to the need to acquire the land taken as a palliative measure necessary as a result of the environmental consequences of the construction of the Cardiff Bay Barrage, following Pointe Gourde Quarrying and Transport Company Limited v Sub Intendent of Crown Lands [1947] AC 565.
Issue (1) has been treated as posing the question whether rule (3) in section 5 of the Land Compensation Act 1961 applies.
The facts-
There is a substantial factual background. The facts, derived from the relevant documentation, are as follows. On 19 November 1985 the then Secretary of State for Wales, Mr Nicholas Edwards MP, indicated his support for proposals by South Glamorgan County Council for a barrage scheme and announced a feasibility study into the construction of a barrage across the estuary of the Taff and Ely rivers. The Nature Conservancy Council (NCC) immediately identified this proposal as posing a significant environmental threat to the Taff/Ely Estuary SSSI, which had been designated in 1980 and renotified under the Wildlife and Countryside Act 1981 in 1983. The NCC indicated its strong objections to the proposed barrage. In November 1985 South Glamorgan County Council (SGCC) deposited in Parliament the South Glamorgan (Taff Crossing) Bill which sought authority to build either a bridge or barrage structure to carry a southern distributor road. The RSPB lodged a petition against the Bill on the ground that the proposal involved an unacceptable loss of nationally important bird habitat. They put forward a clause “For the Protection of Birds” that became clause 27 of the Bill. The NCC formalised its objection to the proposed development on the ground that it would cause serious damage to the SSSI. During the passage of the Bill the Secretary of State for Wales said that it might be possible to create replacement habitats by the eradication of sparttina grass from other areas in the Severn estuary and the creation of replacement mud banks. The Government, he said, was studying such suggestions. The Bill was never enacted.
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On 5 December 1986 the Secretary of State for Wales...
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