Hickmott v Dorset County Council

Land Compensation Act 1973–Claim for depreciation in value of land as a result of increase in noise and vibration due to realignment of corner of highway–Claim dismissed by Lands Tribunal–Tribunal member made an experiment by testing in his own car the speed of turning corner–By giving evidence to himself without possibility of challenge he went too far–As no miscarriage of justice, however, appeal from tribunal dismissed

This was an
appeal by John George Russell Hickmott, of Drimpton, Dorset, from the dismissal
by the Lands Tribunal (J D Russell-Davis FRICS) of his claim against Dorset
County Council for compensation for the alleged depreciation in the value of
his house through the improvement of a corner of the highway opposite it, which
made it easier for traffic to go round the bend. The Lands Tribunal’s decision
was reported at (1975) 233 EG 1009, [1975] 1 EGLR 166.

R J Soper
(instructed by Clarke, Willmott & Clarke, of Crewkerne) represented the
appellant, and Malcolm Spence (instructed by P K Harvey, solicitor’s
department, county hall, Dorchester) appeared for the respondent county
council.

Giving
judgment, LORD DENNING MR said: This is the first case we have had under the
Land Compensation Act 1973. It deals with cases where public works are newly
constructed which injuriously affect neighbouring properties. For instance when
a new road is made carrying traffic, or an old road is widened or altered, or
an aerodrome is built, and in consequence the neighbouring property is affected
by noise, vibration, smell, fumes and so forth. If such physical factors
depreciate the value of neighbouring property, the owner can be paid
compensation.

The scheme of
the Act is that, after the new works are first used, the neighbouring owner has
to wait for one year before he can make a claim. That period of one year is
prescribed so as to enable the noise or smell or other factor to be tested by
one year’s experience. If at the end of one year (after the first user) the noise
or smell etc is bad enough to depreciate the value of the property, the owner
can put in a claim for compensation. He can put in his claim at any time within
the next two years. That period (from the end of the first year to the end of
the third year after the first user) is called the "claim
period." The compensation is
calculated so as to take into account not only the existing noise or smell etc
(existing at the end of the first year of user) but also any intensification
that may then reasonably be expected. In other words, if the traffic is
likely to increase still more in succeeding years, the compensation must be
such as to allow for it.

This part of
the Act has this further unusual function. It is retrospective. Although this
part only came into force on June 23 1973, it applies to any works newly
constructed after October 17 1969. But the "claim period" is then
extended until June 23 1975; see section 14(1).

In this case
Mr Hickmott seeks to take advantage of the Act retrospectively. He has a 16th-century
house in the small village of Drimpton in Dorset. It stood on a corner of the
road B3162 going from Chard to Bridport. There was a very sharp rightangle in
the road just opposite Mr Hickmott’s house. In 1971 the county council decided
to improve that corner. They increased the width of the roadway from 15 ft to
22 ft. They realigned it altogether so as to make it much easier for the
traffic to go round the bend. The work was completed in August 1971. The
altered road was first used at that time. The "claim period" started
after one year, that is in August 1972 (see section 3(2)), but it did not
expire until June 23 1975 (see section 14(1)). Mr Hickmott put in his claim on
June 16 1974. So he was in time. Mr Hickmott says that the freehold interest of
his 16th-century house has been depreciated in value by the noise and vibration
which are consequent on this alteration in the highway. In order to assess the
compensation one has to see what the effect is of the alteration. If the
traffic after the alteration is such as to cause a depreciation in the value of
the house from what it would otherwise have been without the alteration, that
is a ground for compensation. He must be compensated for the depreciation in
value. The depreciation has to be assessed by reference to prices current on
the first day of the claim period. That is August 1972.

The case was
heard by a member of the Lands Tribunal at Dorchester. Mr Hickmott appeared by
counsel. He gave evidence himself. He also called Mr Jayne, an experienced
valuer, from Yeovil. The county council were represented by their deputy
solicitor and also by their county valuer. There was detailed evidence as to
what work was done at this corner. Further, there was evidence as to the amount
of traffic (taken on a census) and also the amount of traffic which was
expected. Furthermore there was evidence by Mr Hickmott of his observations.
The centre line of the road opposite his house was 5 ft to 6 ft further away
than it was before, but he said the traffic had got much faster. He said the
traffic went about 40 to 50 miles an hour downhill and that the local
inhabitants were the people who mostly travelled at that speed.

Before us some
exception was taken to the steps taken by the member of the Lands Tribunal
himself. He held a hearing and took evidence at Dorchester. He drove up from
Bridport to the village. He went into Mr Hickmott’s house and saw the places
which were said to be affected by the vibration and noise. He himself sat in
the front room for an hour or two watching the traffic. In addition he drove
out in his car and tested the position for himself round the corner. He tested
the pace that one could go round the corner, and so forth. He observed for
himself the amount of traffic on the road. After it all he said: "From the
evidence before me and with the benefit of my fairly detailed observations
(although restricted to periods over two days), I conclude that the nature and
general condition of the B3162 does not encourage more traffic to use it, or at
appreciably greater speed, because of one small isolated and local improvement
to a sharp bend. If there is an increase in the weight and amount of traffic,
it is more likely to be consistent with the increase in volume on all
classified roads in the south-west of England over the last four years or
so." In short, he found there was
no increase in traffic, noise or vibration on account of this small alteration
at the corner of the road which was made in 1971. He said: "I find that
there is no measurable depreciation in the value of the subject
property." So he rejected the
claim.

It seems to me
that the only criticism which can be directed at all to that decision is the
extent to which he himself, a member of the Lands Tribunal, tested the
position. He was quite entitled to have a view, to watch the road, to drive
along it so as to see the traffic carried by it. But I think he went too far
when he made his own experiments. He said: "I tried to drive at speed
downhill around the inside of the bend and had to brake from more than 35 to
nearly 20 mph in order to achieve it in safety. I believe that Mr Hickmott’s
estimate of 40-50 mph is, no doubt innocently, widely exaggerated even in the
case of the most foolhardy driver."
There it is. I am afraid that when he made his own experiment, giving
evidence to himself, so to speak, without being tested by cross-examination, he
was going too far.

Although I can
sympathise entirely with the member of the Lands Tribunal, we have to remember
that this is a judicial inquiry. It is a judicial inquiry in which the general
rule is that a tribunal should act on all appropriate evidence. There are no
strict rules. The member can act on his own view, but he should not himself be
a witness–giving evidence to himself–which the parties concerned have not heard
and have not had an opportunity of challenging. So I feel that it was
unfortunate that the member of the Lands Tribunal did go as far as he did. I
can sympathise and understand it entirely.

Even so, is it
a ground on which this court should interfere?
If there had been any miscarriage of justice it should. But I do not
think it did in the slightest. I cannot think that this alteration in the road
caused any real increase in noise and vibration, no more than there would have
been if the alteration had never been made. At any rate, the alteration was not
such as to cause any appreciable difference to the house. Although Mr Soper was
quite right to take the point before us, it seems to me that there was no
miscarriage of justice in this case, and for that reason I would dismiss the
appeal.

Agreeing,
STEPHENSON LJ said: The member said: "From the evidence before me and with
the benefit of my fairly detailed observations (although restricted to periods
over two days), I conclude that the nature and general condition of the B3162
does not encourage more traffic to use it, or at appreciably greater speed,
because of one small isolated and local improvement to a sharp bend. If there
is an increase in the weight and amount of traffic, it is more likely to be
consistent with the increase in volume on all classified roads in the
south-west of England over the last four years or so." He added also: "Accordingly, I find that
there is no measurable depreciation in the value of the subject property due to
the physical factors caused by the use of the public works, as enumerated in
section 1 of the Act, and I have no alternative but to dismiss the claim."

There was, as
it seems to me, ample evidence before him on which he could base that
conclusion and that finding. Indeed, that conclusion and finding were on the
evidence inevitable, but unfortunately he based it also on the fairly detailed
observations to which he referred. That matter is a question which is raised in
paragraph 1 of the case: "That the member substituted his own observations
regarding traffic density and flow for the evidence deposed by both
parties," and it is taken in the notice of appeal as a breach of natural
justice. That is paragraph 4(d), that he "Improperly found . . . by his
own test the speed of turning the corner because the road holding and turning
capabilities of different motor vehicles varies over a wide range so that a
single test by a single vehicle is unsatisfactory evidence and leads to an
improper conclusion. Further that the test was made after the hearing and was
not therefore subject to challenge."

If he had
confined himself to observations pure and simple16 so far as that could be done, he would, I think, have acted perfectly properly;
and, agreeing with my Lord, I think it would be most undesirable to try to
restrict a member of the Lands Tribunal seeking to assess compensation under
this statute too narrowly. It may be that a more generous use of ears and eyes
in matters outside his particular field of expertise should be permitted to a
member of the Lands Tribunal in viewing premises–seeing, hearing and feeling,
if need be, the volume of traffic and at what speed it is going past premises
which are alleged to be depreciated by it. But his observations did go beyond that,
and he did create evidence, as it seems to me, by making an experiment or test
of his own. If he were going to make such an experiment or test, he ought to
have made it with the knowledge and agreement of the parties. The test which he
did make threw doubt in his mind on an important part of the claimant’s
evidence. In the ordinary way that might lead this court to remit the matter
for consideration by another member of the Lands Tribunal; but in this case I
entirely agree with my Lord that had he stuck to the evidence and not relied on
his observations he must have reached the same conclusion and, just as we do
not order a new trial in this court unless in our opinion there has been some
substantial wrong or miscarriage of justice occasioned by the improper
admission of evidence or improper rejection of it (see Order 59, rule 11(2)),
so in an appeal by way of case stated by the Lands Tribunal under Order 61 I
too would apply the same proviso and dismiss the appeal for the reasons stated
by my Lord.

Also agreeing,
WALLER LJ said: In December 1965 Mr Hickmott bought the house, the subject of
this appeal, and some time in 1971–the exact date we do not know–the
respondents to this appeal commenced some alterations to the road outside that
house which were completed in August 1971. Nearly two years later, namely in
May 1973, this Act was passed which came into force on June 23 1973 and allowed
persons who had a claim to bring a claim even though the substance of it had
occurred before the Act was passed or, I dare say, even thought of, and Mr
Hickmott made this claim in June 1974 and it was heard in January 1975.

The statement
of that timetable immediately shows, in my view, the difficulty of the case
which Mr Hickmott was seeking to put forward. Anybody who has experience of
hearing witnesses about the kind of facts that would have to be put in evidence
in this case, dating from four years before, would know of the difficulty of
saying whether there was less noise four years ago than there is now and the
difficulty of attaching great weight to such a statement.

The member of
the Lands Tribunal decided, as my Lords have already said, that there was no
measurable depreciation in this case, and he stated his finding in the
paragraph which has been read by my Lords. Without referring in detail to the
evidence, even looking at the timetable and the outline of the evidence, that
was not a surprising conclusion. Indeed, one would have thought it was almost
an inevitable conclusion unless there was some very strong evidence to the
contrary. I would therefore have thought that the whole of the proceedings were
completely in order were it not for the experiment which the member of the
Lands Tribunal carried out in driving round the corner outside and seeking to
judge Mr Hickmott’s estimate of speed by his own driving round that corner.
Clearly a member of the Lands Tribunal, dealing with a case of this sort, has
to use his own abilities and knowledge and his own expertise in viewing the
house, in seeing the road, in seeing the amount of traffic that appears to be
on the road, bearing in mind what the figures are, but to carry out experiments
to find particular facts was, as my Lords have said, in my view also going too
far. But I entirely agree with what has already been said, and I do not believe
there was any miscarriage of justice at all. Indeed, reading the whole of the
evidence and even ignoring that particular paragraph, the conclusion to which
the member came seems inevitable.