Colneway Ltd v Environment Agency, Court of Appeal - Lands Tribunal, June 16, 2003, [2003] EWLands ACQ_70_2002

Resolution Date:June 16, 2003
Issuing Organization:Lands Tribunal
Actores:Colneway Ltd v Environment Agency
 
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[2004] EWLands ACQ_70_2002 (16 June 2003)

ACQ/70/2002

LANDS TRIBUNAL ACT 1949

COMPULSORY PURCHASE - compensation - mineral-bearing agricultural land - land acquired to provide flood relief channel - whether statutorily assumed planning permission restricts right to extract minerals to acquiring authority only - prospects of extracting minerals in no scheme world from land taken and retained land - whether value of minerals to be assumed by uplift to agricultural value or adjusted quarry valuation - whether claimant's retained land suffered severance or injurious affection - compensation awarded £131,478 - Land Compensation Act 1961 s 15

IN THE MATTER OF A NOTICE OF REFERENCE

BETWEEN COLNEWAY LIMITED Claimant

and

ENVIRONMENT AGENCY Acquiring

Authority

Re: Bare agricultural land and

Mineral-bearing agricultural land

Barge and Amerden Farms

Taplow

Buckinghamshire

Before: President and N J Rose FRICS

Sitting in public at 48/49 Chancery Lane, London, WC2A 1JR

on 5-7 and 27-28 March 2003

The following cases are referred to in this decision:

Roberts v South Gloucestershire DC [2002] EWCA Civ 1568

Bwlffa and Merthyr Steam Collieries (1891) Ltd v Pontypridd Waterworks Co. [1903] AC 426

The following further cases were referred to in argument:

Waterworth v Bolton Metropolitan Borough Council (1978) 37 P & CR 104

Trocette Property Co Ltd v Greater London Council [1974] RVR 306

Frances Patterson QC, instructed by Field Fisher Waterhouse, solicitors of London for the Claimant

Guy Roots QC instructed by S J Berwin, solicitors of London for the Acquiring Authority.

DECISION

This is a reference to determine the compensation payable by the Environment Agency (``the acquiring authority'') as successor to the National Rivers Authority (``NRA''), to Colneway Limited (``the claimant'') for the freehold interest in 34.41 acres of agricultural land at Barge and Amerden Farms, Taplow, Buckinghamshire (``the subject property''). The land was compulsorily acquired under the National Rivers Authority (Maidenhead, Windsor and Eton Flood Alleviation Scheme) Compulsory Purchase Orders 1991 and 1992 (``the CPOs''), confirmed by the Secretary of State for the Environment on 21 March 1995.

The amount sought by the claimant totals £3,447,687 and the figure of compensation contended for by the acquiring authority amounts to £109,753. The reason for this great disparity is that the claimant's land, both that acquired and that retained, is gravel bearing and the claimant contended that the compensation should reflect the value of the mineral.

Miss Frances Patterson QC appeared for the claimant. She called three expert witnesses, namely Mr D K Symes, ARSM, BSc (Hons), CEng, FGS, MIMM, FIQ, FRGS; Mr D A Tucker, MSc, CEng, MICE, MIHT and Mr P J Smith, MRICS. Mr Guy Roots QC, for the acquiring authority, called two expert witnesses, Mr M J S Banton, BSc, MRICS, AMIQ and Mr M J Kean BSc.

We inspected the subject property and the surrounding area on 28 April 2003, accompanied by Mr Smith and Mr Banton.

Facts

The parties produced an agreed statement of facts, in the light of which we find the following facts. Maidenhead, Windsor and Eton and surrounding areas have suffered from flooding in the past. These areas lie within the flood plain of the river Thames. The acquiring authority produced a scheme for a flood relief channel which became known as the Maidenhead, Windsor and Eton Flood Alleviation Scheme (``MWEFAS''). The principle of the scheme is that the flood channel diverts floodwaters from the Thames at Maidenhead and these waters are controlled by sluice gates and weirs to rejoin the Thames at Datchet. The channel was constructed between 1996 and 2002 and extends to a length of 11.6 km. Implementation of landscaping and ancillary works is continuing.

The scheme was constructed under the Water Resources Act 1991. It included extensive environmental and wildlife design together with public access, parking facilities and public footpaths. It also included wildlife habitat in the form of reed beds, marshland areas and other environmental facilities, features and design. There are a number of bridges across the channel that accommodate public roads, public footpaths and bridleways and railways.

A summary of relevant dates is as follows:

The land acquired by the acquiring authority from the claimant was described in the 1991 CPO as follows:

No claim has been made in respect of Plot 44.

At the valuation date the subject property was let on an agricultural tenancy. It was subsequently used to construct the MWEFAS channel. 214,252 tonnes of minerals were extracted as part of this construction process and were sold on by the acquiring authority at £1.33 per tonne. The remainder of the subject property has been used for footpaths, planting areas and river banks etc.

The surface value of the subject property is agreed at £104,453. The mineral deposit underlying the claimant's retained land to the south of MWEFAS (``the retained land'') totals approximately 5.7m tonnes.

Issues

The issues to be determined by the Tribunal are:

The open market value of the subject property

The diminution (if any) in the open market value of the claimant's retained land by reason of severance and injurious affection caused by the acquisition.

The principal issues in dispute are:

A Does any planning permission to be assumed under section 15 of the Land Compensation Act 1961 authorise anyone other than the acquiring authority to extract minerals from the land acquired for the purpose of assessing compensation?

B In the absence of the scheme what were the prospects at the valuation date of obtaining planning permission for the extraction of minerals from (a) the land taken and (b) the claimant's retained land?

C Should the value of the land taken and the effect on the value of the retained land be assessed (1) by means of an uplift on agricultural value or (2) by means of an adjusted quarry valuation?

Issue A: the assumed planning permission and mineral extraction

Section 15 of the Land Compensation Act 1961 provides:

``(1) In a case where -

the relevant interest is to be acquired for purposes which involve the carrying out of proposals of the acquiring authority for development of the relevant land or part thereof, and

on the date of service of the notice to treat there is not in force a planning permission for the development, it shall be assumed that planning permission would be granted in respect of the relevant land or part thereof, as the case may be, such as would permit development thereof in accordance with the proposals of the acquiring authority.

(2) For the purposes of paragraph (b) of the preceding subsection no account shall be taken of any planning permission so granted as not to ensure (while the permission remains in force) for the benefit of the land and of all persons for the time being interested therein.''

Planning permission for the construction of the whole of MWEFAS - on the claimant's land and on the land of the other owners along the length of the scheme - was granted by the Secretary of State on 1 March 1995. It was subject to a number of conditions. Condition 4 made the permission personal to NRA. Thus, under section 15, the permission is not to be treated as a permission in force; and it is to be assumed that planning permission would be granted for the subject land such as would permit development of that land in accordance with the proposals of the acquiring authority. It becomes necessary, therefore, to identify what were the proposals of the acquiring authority.

Mr Roots suggested that the proposals of the authority are to be identified by reference to the evidence before the inspector at the inquiry into the CPO and planning application, the decision of the Secretary of State on the CPO and planning application, and evidence of what was constructed and the manner in which it was constructed. (On the last matter Mr Roots said that it would be consistent with the decision in Bwlffa and Merthyr Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426 to take account of such evidence.) Miss Patterson said that the proposals of the acquiring authority would be defined by the planning permission granted by the Secretary of State. It is clear that the identification of the proposals of the acquiring authority for the purpose of the section 15(1) assumption of planning permission is a question of fact. The terms of the compulsory purchase order may sufficiently identify the proposals, but we can see no reason why reference should not be made to any evidence that may shed light on any dispute as to whether a particular matter was or was not part of the proposals of the acquiring authority.

Miss Patterson pointed out that the planning permission described the development as ``the construction of a flood relief channel and the winning and working of minerals ...''. A permission in those terms would, she said, apply to the land taken; and it would grant permission for two things - the construction of the flood relief channel and the winning and working of minerals. Since the assumed permission would apply only to the land taken and would not be a permission for a wider scheme including the relevant land, no assumption would fall to be made that the channel on the land taken was to connect up at either end with sections of the proposed channel.

The planning permission that was granted contained, as we have said, a number of conditions. To be particularly noted are condition 2 (the channel to be completed and fully operational within 5 years of commencement); 3 (the development to be completed as a whole and to be carried out in accordance with the approved documents and plans); 9 (details of the scheme of working, including construction, mineral extraction, spoil deposition, phased restoration and aftercare to be submitted and approved in respect of each area prior to the...

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