Decision Nº LCA 59 2009. Upper Tribunal (Lands Chamber), 19-07-2011
| Jurisdiction | UK Non-devolved |
| Judge | George Bartlett QC PresidentMr Andrew J Trott FRICS |
| Date | 19 July 2011 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LCA 59 2009 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2011] UKUT 269 (LC)
LT Case Number: LCA/59/2009
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – modification order – review of mineral planning permission under Environment Act 1995 – basis of claim – whether depreciation of the value of land or loss of profits – Habitats Regulations 1994 – proposed use contrary to law – insufficient evidence to establish depreciation of value of land – whether loss directly attributable to modification order – claimant not intending to work the land – derogation licence to translocate great crested newts would not have been granted in absence of modification order – no compensation payable
IN THE MATTER OF A NOTICE OF REFERENCE
and
WREXHAM COUNTY BOROUGH COUNCIL Compensating
Authority
Re: Hafod Quarry and Landfill Site
Bangor Road
Johnstown
Wrexham
LL14 6ET
Before: The President and A J Trott FRICS
Sitting at Manchester Employment Tribunal, Alexandra House, 14-22 The Parsonage, Manchester M3 2JA
on 10-12 January 2011
Rhodri Price Lewis QC, instructed by DLA Piper UK LLP, for the claimant
Stephen Sauvain QC and Eric Owen, instructed by Geldards LLP, for the compensating authority
The following cases are referred to in this decision:
Bond and Others v Dorset County Council [2011] RVR 119
R (on the application of JHM Newsum) v Welsh Assembly Government [2004] EWCA Civ 1565
Commission v United Kingdom (case C-6/04) [2006] Env LR 29
Morge v Hampshire County Council [2011] UKSC 2
The following case was referred to in argument:
R (Fisher) v English Nature (CA) [2005] 1 WLR 147
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The claimant in this reference, MWH Associates Limited, is a waste management company that acquired ownership in February 2005 of a substantially excavated quarry known as Hafod Quarry and Landfill Site, Johnstown, near Wrexham, as a site for the disposal of waste. The quarry and areas adjacent to it contain a population of great crested newts (GCN), a European protected species under Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora (the Habitats Directive). Part of the quarry and adjacent areas were designated as a Site of Special Scientific Interest (SSSI) in June 2001 and a Special Area of Conservation (SAC) in December 2004.
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The quarry had been worked under a planning permission granted in October 1988. The Environment Act 1995 required the periodic review of mineral planning permissions and, where necessary, the imposition of revised planning conditions. The compensating authority, Wrexham County Borough Council (WCBC), as the mineral planning authority (MPA) approved revised conditions in respect of the 1988 permission on 4 September 2006. Condition 4 of the revised conditions required the claimant to submit details showing that no mineral extraction would take place within any area notified as a SSSI/SAC or within any adjacent area where the integrity of the SSSI/SAC’s ecological features would be affected.
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Under the 1995 Act a restriction of working rights under conditions imposed under the review procedure has effect as if a modification order under section 97 of the Town and Country Planning Act 1990 had been made; and under section 107 of the 1990 Act a person interested in the land affected by a modification order is entitled to compensation in respect of any loss or damage which is directly attributable to the modification. The claimant claimed compensation under this provision for expenditure, loss and damage incurred as a result of being unable to win and work minerals from the area of the site affected by the new condition 4 and, as a direct result thereof, for the expenditure, loss and damage incurred as a result of losing void space for landfill.
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The compensating authority resist the claim for compensation on two principal grounds. They say, firstly, that the claimant did not in fact intend to work the minerals in the land or to use the void space for landfill; and, secondly, that it would in any event have failed to obtain the necessary derogation licence to permit the translocation of the GCN living on the land, so that it could not lawfully have worked the minerals.
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There is agreement on the amount of the compensation, on the assumption that the council fails in both these contentions, except that the cost of relocation of the GCN is dependent upon the date chosen to assess the size of the GCN population. As at the valuation date of 4 September 2006 the agreed compensation is:
On the basis of the 1994 GCN population: £4,266,992
On the basis of the 2000 GCN population: £4,371,992
On the basis of the 2006 GCN population: £4,231,992
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Mr Rhodri Price Lewis QC appeared for the claimant and called as expert witnesses Ms Janet Irene Wilkinson BSc, a director of Wilkinson Associates Environmental Consultants and Mr Nicholas John Davies BSc MRICS, Managing Director of Stratus Environmental Limited. Mr Stuart Jeffries BSc MRICS MIQ, a partner in Matthews & Son, Chartered Surveyors, produced expert valuation and rebuttal reports but he was not called to give evidence in view of the agreement between the parties about valuation issues.
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Mr Stephen Sauvain QC and Mr Eric Owen appeared for the compensating authority and called as expert witnesses Mr Robert Arnold Dewey BA MBA DipTP MRTPI, formerly the Planning Control Manager for Wrexham County Borough Council (now retired); Mr Matthew Arthur Robert Ellis BSc, Regional Species Officer in the North Region of the Countryside Council for Wales; and Dr Elizabeth Anne Howe, the Species Team Leader and Herpetologist in the Terrestrial Sciences Group of the Countryside Council for Wales. Mr Paul John Malam BSC, MRICS, FIQ, a partner in Carter Jonas LLP, Property Consultants, produced an expert valuation report but he was not called to give evidence.
Facts
The site
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Hafod Quarry is located approximately 5km south west of Wrexham town centre and adjoins the eastern boundary of the village of Johnstown. It is separated from the village by the Chester-Wrexham-Shrewsbury railway line. The northern boundary of the site is formed by Bangor Road (B5426); the eastern boundary is New Hall Road which leads to New Hall Farm to the south. The entrance to the site is from Bangor Road, approximately 300m west of its junction with the A483.
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The quarry has an area of approximately 33ha and has been worked for many years as a source of clay for use in tile manufacture. Other mineral types, including sand and gravel, are found within the quarry. The void created by the extraction of clay has subsequently been developed as an active landfill site accepting a variety of waste types.
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The claim area is located in the south west of the quarry site where no mineral extraction or land filling has taken place. It appears to be formed from colliery spoil from the former Vauxhall Colliery which closed in 1928. Several historic Ordnance Survey maps show that the area had been used as a tip from the colliery. The valuers agreed that the claimant would have had to incur “extraordinary costs” before working the claim area, such costs including mine shaft capping and the removal of overburden.
Chronology
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The parties produced an agreed chronology of events. From this and the evidence we determine the following facts.
(i) Ownership
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For the purposes of this reference the original owner of the claim area was Shropshire Waste Management Ltd (SWML), a subsidiary company of SITA UK Limited.
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In May 2001 Mersey Waste Holdings Limited (MWHL) instructed AIG Engineering Group Ltd to undertake an environmental due diligence exercise to verify the information on which it had based a valuation and offer to acquire Hafod Quarry from SWML. The acquisition was to be effected through the purchase by MWHL of the shares in Hafod Quarries Ltd, a wholly owned subsidiary of SWML. The due diligence report, prepared by AIG Consultants Limited, was issued in April 2002.
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MWHL acquired the entire issued share capital of Hafod Quarries Ltd on 18 February 2005 for £4,592,000. The principal asset of the company was Hafod Quarry. The site was operated by MWH Associates...
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