MENZIES MOTORS Ltd v STIRLING DISTRICT COUNCIL
| Jurisdiction | Scotland |
| Judgment Date | 19 November 1976 |
| Date | 19 November 1976 |
| Docket Number | No. 5. |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Lands Tribunal for Scotland.
Compulsory powersAssessment of compensationWhether necessary to establish that planning permission might reasonably have been expected to be grantedLand Compensation (Scotland) Act 1963 (cap. 51), sec. 24 (4).
Sec. 22 (1) of the Land Compensation (Scotland) Act 1963 provides that, for the purpose of assessing compensation in respect of any compulsory acquisition, certain assumptions as to planning permission shall be made. The said assumptions include, in sec. 24 (4), the assumption that, if the land or any part thereof is land subject to comprehensive development, planning permission would be granted, in respect of the relevant land, for any development for the purpose of a use falling within the planned range of uses, being development for which, in the circumstances specified in sec. 24 (5), planning permission might reasonably have been expected to be granted.
A local authority compulsorily acquired a workshop and garage with land attached in Stirling. The proprietors and the local authority failed to agree as to the compensation price and the proprietors made an application to the Lands Tribunal for Scotland for determination of the compensation. The proprietors claimed compensation on alternative bases, whichever was the higher(a) full site value including its full development potential, or (b) existing use value plus compensation for disturbance. Under the first of these alternative heads the appellants contended inter alia that, as the site was suitable for the erection of a supermarket, the market value of that potential and in addition the costs involved in moving to temporary premises should be paid in compensation. The tribunal, after proof, decided that, because of the traffic problems expected to arise, "they could not find that it was likely that planning permission would have been obtained for the erection of a supermarket on the site." They accordingly awarded compensation on the alternative basis. The tribunal in their note said: "In determining the development value of the site, the question of whether planning permission for a supermarket would be obtained was a fundamental issue." No argument was deployed before the tribunal on the construction of the words in sec. 24 (4), namely whether "planning permission might reasonably have been expected to be granted." In the result, accordingly, the tribunal had neither emphatically answered that question which they considered a fundamental issue nor addressed their minds to the construction and implications of the words of sec. 24 (4). The proprietors appealed by way of special case stated by the tribunal.
Held that whether planning permission might reasonably have been expected to be granted in certain circumstances was a factor to be established under sec. 24 (4) of the 1963 Act.
Menzies Motors Limited, Orchard Brae, Stirling (the appellants), were proprietors of a workshop and garage with land attached at Orchard Place, Stirling. Stirling District Council, the statutory successor to the Royal Burgh of Stirling (respondents), were authorised to acquire the said subjects under the Burgh of Stirling (Comprehensive Development Order No. 1) Compulsory Purchase Order 1967 as confirmed by the Secretary of State for Scotland on 26th July 1971. The parties having failed to agree as to the compensation price, the appellants made an application on 1st May 1974 to the Lands Tribunal for Scotland for determination of their value.
The case was heard by the tribunal at Edinburgh on 9th, 10th and 11th June and 7th, 8th and 9th July 1975 and on 25th July 1975 the tribunal carried out an inspection of the site of the subjects, the applicants' new premises in Goosecroft Road and of various comparable subjects referred to in the evidence. On 2nd September 1975 the tribunal pronounced an order awarding the Appellants 132,259.21 in name of compensation and reserved all questions of expenses.
The appellants' claim was submitted on the following alternative bases, whichever was the higher:(a) full site value including its full development potentiality, or alternatively (b) existing use value plus compensation for disturbance. Under the first of these alternative heads the appellant contended inter alia that as the site was suitable for the erection of a supermarket, the market value of that potential and in addition the costs involved in moving to temporary premises should be paid as compensation.
The tribunal decided that planning permission would not have been obtained for the erection of a supermarket on the site and awarded compensation on the basis of the second alternative referred to above. They also decided that such compensation is as high as if not higher than the development value of the site for any commercial development which creates no traffic problem.
The tribunal then at the appellants' request stated a special case for the opinion of the Court of Session under section 13 (1) of the Tribunals and Inquiries Act 1971.
The case set forth the following facts:
"(1) The subjects of reference comprise a workshop and garage with land attached at Orchard Place, Stirling, which was known as Menzies Motors Ltd. The site area was 0.76 of an acre (3,667 square yards) and formed part of a Comprehensive Development Area in which the uses were to include shops and offices. "
"(2) At the date of the hearing the buildings had been demolished. The buildings had occupied the greater part of the site with a frontage to Orchard Place of 80 feet and to Thistle Street/Goosecroft Road of 365 feet. Part of the Goosecroft Road frontage was to an area of open land extending to 751 square yards. This land was at a level about 12 feet lower than Orchard Place. In July 1973 Orchard Place was a cul-de-sac. It was used by goods vehicles for the purpose of unloading merchandise at the rear of shop premises fronting Murray Place. In addition there was car parking on the opposite side of the road from the subjects in question. The road was congested by traffic and in addition there was a significant movement of pedestrians along the roadway. Thistle Street was a one-way street of two lanes. Traffic moving in Murray Place in both directions used Thistle Street as an exodus. It served at the time as the main road from Dumbarton to Grangemouth and the East of Scotland. Thistle Street was used by all kinds of vehicles including omnibuses proceeding to the Bus Station in Goosecroft Road. Traffic flow was of the order of 1,500 vehicles per peak hour. On entering Thistle Street, vehicles proceeded downhill and round a fairly tight curve. Traffic tended to accelerate after entering Thistle Street and there was evidence that the speed limit was usually attained and on occasions exceeded. Vehicles had a habit of changing lanes in travelling along Thistle Street. "
"(3) If there had been no Comprehensive Development Area there would have been pressure in the centre of Stirling for car-parking facilities and in considering any application for a supermarket the Town Council would probably have had to insist on car-parking facilities within the site area for service and customer vehicles. "
"(4) If there had been no Comprehensive Development Area, Orchard Place being a considerably congested cul-de-sac would not have provided a satisfactory or acceptable service access. "
"(5) If there had been no Comprehensive Development Area Thistle Street would have remained; and because of the curve of Thistle Street, the habitual lane-changing of drivers and the danger to pedestrian use which would have resulted from the removal of a sufficient length of pavement to allow the formation of a slip lane in and out of the site, it has been impossible to visualise a scheme which would allow sight lines sufficient to achieve the requisite stopping distances or to devise a plan demonstrating a suitable and safe method of entry to and exit from the site area; and accordingly planning permission for a supermarket on the site area would not have been granted. "
"(6) To the north of the subjects of reference, on the corner of Orchard Place and Thistle Street and bounded on the south and east by the reference subjects there had been a derelict cinema on a rectangular site extending over an area of 10,000 square feet. "
"(7) In 1961 the appellants had entered into Missives for the purchase of the said cinema subject to planning permission being granted for the extension of the appellants' business into said premises. "
"(8) The purchase of the said cinema was never completed because the Town Council refused planning permission on the ground that the property was required for the central redevelopment of Stirling as a commercial centre. "
"(9) If there had been no Comprehensive Development Area the piece of land occupied by the Cinema would have become the property of the appellants and this would have afforded enlarged space within the site for internal parking of service vehicles and customers' cars but the incorporation of the cinema site would not have removed the difficulties of devising a suitable and safe scheme for service vehicles and customers' cars entering and leaving the appellants' site."
The case further set forth the following contentions of the parties and the finding of the tribunal:
"In the Closed Record and in the course of the evidence for determining the development value of the site, the question of whether planning permission for a supermarket would be obtained was raised by the Acquiring Authority. They contended that planning permission for a supermarket would never have been granted. Planning permission in turn depended on whether vehicular traffic could enter or leave the site without creating a traffic hazard. Such vehicular traffic would consist of servicing vehicles and also if internal car-parking was required, of customers' cars. Parking pressure in Stirling was...
To continue reading
Request your trial