Roberts & Anor v South Gloucestershire District Council, Court of Appeal - Lands Tribunal, September 27, 2001, [2001] EWLands ACQ_90_1993

Resolution Date:September 27, 2001
Issuing Organization:Lands Tribunal
Actores:Roberts & Anor v South Gloucestershire District Council
 
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© CROWN COPYRIGHT 2001

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[2001] EWLands ACQ_90_1993 (27 September 2001)

ACQ/90/1993

LANDS TRIBUNAL ACT 1949

COMPENSATION - Compulsory purchase of land for the construction of a road - value - assumed planning permission - value of minerals - planning permission for a commercial minerals operation not granted or to be assumed - compensation assessed on basis of agricultural value at £17,000 - Alternative valuation (Rule 50(4) Lands Tribunal Rules 1996) £86,000 - Land Compensation Act 1961 s.5 rules (2), (3) & (4), ss.6 and 14 -18.

IN THE MATTER of A NOTICE of REFERENCE

BETWEEN C F & M G ROBERTS Claimants

and

SOUTH GLOUCESTERSHIRE DISTRICT COUNCIL Acquiring

Authority

Re: Land to east of Abbots Road, Hanham, Bristol

Tribunal Member: P R Francis FRICS

Sitting at: Bristol County Court, Small Street, Bristol on 12 - 15 June 2001 and

48/49 Chancery Lane, London, WC2A 1JR on 26 and 27 June 2001

The following cases are referred to in this decision:

Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565

Myers v Milton Keynes Development Corporation [1974] 1 WLR 696

Wards Construction (Medway) Ltd v Barclays Bank Plc (1994) 2 EGLR 32

Bolton MBC v Tudor Properties Ltd (2000) RVR 292

West Bowers Farm Products v Essex County Council (1985) 50 P&CR 368

Laing Homes Ltd v Eastleigh Borough Council (1978) 250 EG

Batchelor v Kent County Council (1989) 59 P&CR 357

Inland Revenue Commissioners v Clay [1914] 3 KB 466

Copeland Borough Council v Secretary of State for the Environment (1976) 31 P&CR 403

Nicholas Nardecchia of counsel, instructed by Burningham and Brown, solicitors of Bridgwater, for the claimants

Gregory Stone QC, instructed by Legal Services, South Gloucestershire Council, for the acquiring authority

DECISION

This is a reference to determine the compensation payable to Cleo Frederick Roberts and Marion Gertrude Roberts (``the claimants'') for the compulsory acquisition of land to the east of Abbots Road, Hanham, Bristol (``the subject land'') by South Gloucestershire District Council (successors to the County of Avon) (``the acquiring authority'') under the County Council of Avon (Avon Ring Road - Stage IV A) Compulsory Purchase Order 1989 (``the CPO'') in connection with the construction of Stage IV A of the Avon Ring Road (``the scheme'').

Mr. Nicholas Nardecchia of counsel appeared for the claimants and called Mr. John Eric Salmon FRICS MRTPI FIQ of Land and Mineral Management Ltd, Chartered Surveyors, who gave valuation evidence. Mr. Gregory Stone QC appeared for the acquiring authority and called Mr. John Leonard Ferguson MRICS, a principal valuer in the Mineral Valuer South office of the Valuation Office Agency, and Mrs Linda J Mawby BSc FRICS, acting Consultancy Manager (Valuation) in the Property Consultancy department of South Gloucestershire Council, who each gave valuation evidence. Mr. Peter Christopher Slane BSc Eng MICE FIHT gave highways evidence. I also heard evidence of fact from Mr. Graham Keith Roberts, Mr. Stephen William Perry, Mr. Noel Rees Phillips and Mr. Roger Martin Webb, all of whom had been employed by Avon County Council and were involved with the scheme.

FACTS

The parties had not prepared a statement of agreed facts and issues for this hearing, but one had been provided for the hearing of a preliminary issue held on 10 February 2000. From this, an agreed chronology of events and the written and oral evidence, together with my inspection of the subject land on 11 June 2001, I find the following facts:

3.1 The subject land comprised 1.6 hectares (3.95 acres) of agricultural land lying to the east of, and having a frontage to, Abbots Road, Hanham, Bristol, and formed part of a larger parcel (extending, in all, to about 15.4 hectares (38 acres)) belonging to the claimants.

3.2 On 29 January 1988 the acquiring authority granted itself planning permission under reg 4(5) of the Town and Country Planning (General Regulations) 1976 for the construction of stage IV A of the Avon Ring Road between Kingsfield Lane, Longwell Green and Durley Hill, Keynsham. This followed publication of the Draft County Structure Plan in 1982, a period of public consultation at which a number of alternative routes were considered, and submission of a planning application for the preferred route to the Secretary of State (as it did not accord with the then current structure plan illustration) who decided not to intervene.

3.3 The road was to be a high standard section of dual-carriageway which would be classified as part of the National Primary Road Network and would have a length of approximately 2.8 km (1.7 miles), the subject land forming a 204 metre section in the middle between chainage 1609 and 1813 and defined as plot no's 25, 25a, 25b, 25c and 25d.

3.4 On 18 May 1989 the acquiring authority made the County Council of Avon (Avon Ring Road - Stage IV A) Compulsory Purchase Order 1989, this being confirmed by the Secretary of State for Transport on 23 April 1991.

3.5 Notice to Treat was served upon the claimants on 9 August 1991 and they submitted a form of claim on 22 August 1991. Following Notice of Entry served by the acquiring authority on 19 September 1991, possession of the subject land was taken on 14 October 1991, this being the valuation date for the purpose of this determination.

3.6 A Notice of Reference was submitted to this Tribunal by the claimants on 4 May 1993. Proceedings were stayed by order of the Tribunal in July 1995 to enable the acquiring authority to apply for a Certificate of Appropriate Alternative Development under s17 of the Land Compensation Act 1961 (``the 1961 Act''). Following application, at which the claimants sought permission for residential development, recreational uses or mineral extraction, and the acquiring authority sought a nil development, a certificate was granted on 17 December 1996 which stated ``...planning permission would have been granted for agricultural purposes and for the development for which the land is to be acquired, but not for any other development''.

3.7 On 6 February 1997, the first claimant submitted an appeal to the Secretary of State under s18 of the 1961 Act and on 4 February 1998 the Secretary of State for the Environment, Transport and the Regions cancelled the s17 certificate and issued a new certificate which stated (in summary):

if the land were not proposed to be acquired by an authority possessing compulsory purchase powers, planning permission would have been granted immediately for:

(1) the laying out of sports pitches without floodlighting and the erection of a single storey building for use as an ancillary clubhouse subject to conditions [which included those relating to improvements to Abbots Road] on the subject land and in association with adjoining land [the claimants' retained land].

(2) any development for which the land is being acquired.

It was agreed that there were no conditions in the certificate relating to (2).

3.8 The construction of the ring road, where passing through the subject land, required the extraction of approximately 56,114 cu.m. (123,450 tonnes) of materials which included topsoil and a mixture of clay, weak weathered silt sandstone and thinly bedded laminated sandstone to a depth of about 4 metres, and Pennant sandstone to a total depth of 8.46 metres. This provided a cutting over which a new overbridge would be built on the line of, and at the existing level of, Abbots Road. To facilitate the construction of the bridge, and to allow Abbots Road to continue to be used, a temporary diversion (or land-bridge) was constructed on the subject land utilising an estimated 10 per cent of the materials extracted from the claimants' land. The balance of the excavated materials were removed and used partly for landscaping and the formation of a sound-bund elsewhere on the scheme, or tipped.

3.9 Borehole investigations into the geology of the land on the line of the scheme were undertaken by Exploration Associates in 1982/83 and 1985/86 and interpretative and factual reports were produced.

3.10 Contractors' access to the scheme was principally from roads to the north and south, apart from the final surfacing of the temporary diversion where use of Abbots Road was permitted for the road laying equipment and vehicles bringing surface materials (`black-top'). The use of Abbots Road for contractors was otherwise prohibited within the terms of the contract.

ISSUES

The claimants' case was that they should be compensated for the minerals as the extraction formed part of the development, and their expert valued them at £400,000 on the basis of what he calculated would be available for extraction to a minerals operator. In the alternative, if the minerals had to be valued upon the basis of the quantities actually extracted, rather than what was available, a figure of £200,000 was applied. No value was deemed to accrue in respect of the assumed planning permission for recreational purposes, as it was accepted that the costs of complying with the conditions attached to the amended s.17 certificate would outweigh any enhanced value.

The acquiring authority's case was that, whilst in principle, minerals may be relevant in valuation terms, in this case they were not, because not only did planning permission for the extraction of minerals not exist, but even if it did, the poor quality of material, the problems with access, lack of market demand and the costs of spoil disposal would make a minerals operation on this site uneconomic. Thus, in the no-scheme world, there would be no demand for that use from a prospective purchaser, and hence no value. In the acquiring authority's submission the land had a value for agricultural purposes and horse grazing only, and that amounted to £17,000.

The parties were agreed that, in principle, if minerals extracted from land as part of a scheme had a value, that value should be taken into account in calculating...

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