Waters and Others v Welsh Development Agency
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lord Justice Laws,Lord Justice Schiemann |
| Judgment Date | 28 June 2002 |
| Neutral Citation | [2002] EWCA Civ 924 |
| Docket Number | Case No: C2001/0276 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 June 2002 |
[2002] EWCA Civ 924
Lord Justice Schiemann
Lord Justice Laws and
Lord Justice Carnwath
Case No: C2001/0276
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr David Holgate QC and Mr Timothy Morshead (instructed by Jacklyn Dawson & Meyrick Williams) for the Appellants
Mr Anthony Porten QC and Mr Adrian Trevelyan Thomas (instructed by Roy Thomas, Legal Director, Welsh Development Agency) for the Respondent
Introduction
This is an appeal from the decision of the President of the Lands Tribunal (George Bartlett QC) on preliminary issues arising from claims to compensation by landowners at Nash, near Newport, Gwent. It raises difficult questions as to the application of the so-called " Pointe Gourde" rule (or "no-scheme rule"), that compensation for compulsory purchase "cannot include any increase in value which is entirely due to the scheme underlying the acquisition" ( Pointe Gourde Quarrying and Transport Company Limited v Sub Intendent of Crown Lands [1947] AC 565, 571).
Background
The subject land is low-lying farmland adjacent to the Severn Estuary. The various parcels total about 225 acres. They were included, along with other land, amounting in total to some 1000 acres, in the Land Authority for Wales (Gwent Levels Wetlands Reserve, Newport) Compulsory Purchase Order 1997. The respondent Welsh Development Agency is the successor to the Land Authority for Wales.
A general vesting declaration was made on 26 th January 1998, vesting the land in LAW on the 25 th February 1998, upon which it was transferred to the Cardiff Bay Development Corporation (CBDC), who themselves transferred it immediately to the Countryside Council for Wales (CCW). The valuation date is the 25 th February1998, when the land vested in the CBDC.
The background history was set out in considerable detail in the President's decision. Even so, the appellants before us have suggested that there were some significant omissions. However, it seems to me that the main points necessary for our decision are not controversial, and can be summarised quite shortly.
Plans for a barrage across the estuary of the Taff and Ely rivers were first supported by Government in November 1985. In April 1987 the Cardiff Bay Development Corporation was established by order under the Local Government Planning and Land Act 1980, and the Cardiff Bay area became an "urban development area" under that Act. After several abortive attempts to promote a parliamentary Bill, the Cardiff Bay Barrage (No.2) Bill was introduced in July 1991 to provide the necessary authorisation for the barrage scheme.
It was apparent from the outset that there would be serious environmental objections arising from the loss of wetlands, and that mitigation measures would be required. The 1991 Bill included provision for a tidal lagoon to be constructed in a coastal area at Wentlooge. That proposal was dropped after it had been strongly criticised by the House of Commons Committee, partly because of the financial consequences for the farming families in the area. The Welsh Office, with the support of the conservancy bodies, including the RSPB, established a working group to look for alternatives. Local agents were instructed to report as to the feasibility of acquiring an area of land up to a maximum of 1,000 acres within a defined area of search.
LAW became involved in May 1992. At that time LAW had a special role (not replicated by any similar authority in England), which (under section 103(1) of the 1980 Act) was that of acquiring land in Wales for development, and of disposing of it to other persons for development by them. Under section 102, it was required to comply with directions of the Secretary of State for Wales relating to performance of its functions, but it was not to be regarded as a servant or agent of the Crown. Under section 104(1), it had power to acquire by agreement or, if authorised by the Secretary of State, compulsorily, "any land which, in the Authority's opinion, is suitable for development".
In May 1992, the Welsh Office indicated the Government's intention that LAW should in due course acquire the land for the reserve once identified, if necessary using their compulsory powers, but that the long-term ownership and management of the site would be entrusted to CCW. In response, LAW made clear that they would reserve their position until approached with a specific proposal.
The attention of the working-group was initially directed to an area at Redwick, which is about 2km east of the subject land at its nearest point. This idea progressed sufficiently for the CCW and RSPB to withdraw their petitions against the Bill, which was enacted on 5 th November 1993, with no specific mitigation measures. By June 1994 work had started on the barrage, and a specific request had been made to LAW to consider using its acquisition powers to create a bird reserve on the Redwick land. However the discussions with the landowners at Redwick, and appreciation of the damage that the proposal would do to farming interests in the area, led to the investigation of alternative options.
Matters seem to have come to a head in October 1995. As the President found, the urgency shown by the Secretary of State for Wales at that time was "substantially due" to the pressure brought by the European Commission. The European Commission had been involved since as early as 1987 when a formal complaint had been made by the RSPB. There had also in the same year been a proposal to include the Cardiff Bay area in a proposed special protection area (SPA) under the European Birds Directive. The Commission's position was that the Cardiff Bay proposal could be accepted under the Birds Directive as justified by overriding socio-economic reasons, but only if their requirements as to compensatory measures were fully met. This was stated in a letter to the Welsh Office from the Commission dated 11 th October 1995. The Commission expressed strong concern that in spite of assurances previously given by the Welsh Office and in spite of the commencement of the barrage project there was no sign of implementation of the mitigation measures.
At about the same time the decision was made not to proceed with the Redwick proposal but to concentrate on an alternative area on the Gwent Levels, including the subject land. On 6 th November 1995, LAW and CBDC entered into a formal agreement for LAW to assist in acquiring the necessary land, on CBDC's undertaking to pay the relevant costs. The agreement identified the intended area, including the subject land. The agreement stated that it did not create any partnership or agency between the parties. Following this agreement the Secretary of State informed the Commission of the new proposals and assured the Commission that the Government remained "committed to implementing appropriate compensation/mitigation measures as soon as practicable".
On 17 th January 1996 the Secretary of State gave a written answer in Parliament, announcing the proposal for the Gwent Levels Wetland Reserve. Since this seems to have been the the first formal public announcement of a project including the claimant's land, it is worth recording what Mr Hague said in full:
"I am pleased to announce my plans to proceed immediately with bird reserve compensation measures at Uskmouth and Goldcliff and the area in between on Gwent Levels. These new proposals have been developed with the assistance of Countryside Council for Wales, from the conclusions reached by the Cardiff Bay Development Corporation Steering Group report on alternative mitigation measures – October 1995 – and discussed with the European Commission … I have asked the Cardiff Bay Development Corporation to set up immediately a project implementation steering group to oversee the establishment of the new integral reserve of over 375 acres, with the firm objective of completion before the start of impoundment of the waters in Cardiff Bay. The longer-term objective is for the reserve to be developed so that it qualifies for Special Protection Area Status. The first task of the group will be to provide clear proposals for the management of the site and by the end of May, specific targets for the birds to be attracted to it. The Land Authority for Wales, working on behalf of CBDC, has already secured from National Power 164 acres of the land required and lodged a planning application for engineering for the whole of the reserve site."
On the same day LAW submitted a planning application for the nature reserve to the local planning authority. The Commission indicated that in view of the guarantees given it was satisfied that the requirements of the directive had been met and the complaint file was being closed.
During the following months, LAW began steps to acquire the necessary land by agreement. No decision having been made on the planning application by January 1997, LAW gave notice of appeal to the Welsh Office. At the same time it made the compulsory purchase order which led to the present dispute. Although by then it had acquired some 80% of the relevant interests in the land needed for the reserve, the order covered the whole site. (As I understand it, this was done largely as a precaution to ensure that no interests were overlooked). The purpose of acquiring the land (as stated in the order) was "for the purpose of disposing of it for the development and maintenance thereafter of a wetlands reserve involving the...
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