Land at Bransholme, Hull, compulsorily acquired for population overspill–Interim decision on whether there was one scheme of development embracing both subject land and other land–Held that there were ‘at least’ two separate schemes–Probably a third scheme by a private developer–Application of ‘Pointe Gourde’ principle–‘Kaye’s’ case not followed–Tribunal decides it is not necessary to disregard any increase or diminution in value of subject land other than expressly provided in Land Compensation Act 1961, section 6 and Schedule 1
Mr Iain
Glidewell QC and Mr Michael Barnes (instructed by Rollit Farrell & Bladon,
of Hull) appeared for the claimants in 13 references: H C Sprinz; L F Dixon; D
M Jones and J E Curtis (trustees of H Needler’s Children’s Settlement No 1); H
F Tait; G W Calvert; G B North; F Farnaby; W B Holmes and Mrs E B Hamilton
(executors of Arthur Holmes, deceased); J Sutcliffe and Mrs M Sutcliffe; R G
Slack, T H F Farrell and D P Horsley (executors of A Alec-Smith, deceased); A V
Palmer; R Palmer; and W Johnson. Mr F H B W Layfield QC and Mr Michael
Fitzgerald (instructed by the town clerk of the city of Kingston upon Hull)
represented the acquiring authority.
Giving an
interim decision, THE TRIBUNAL said: In this decision we shall refer to the
Kingston upon Hull County Borough Council and their successors, the City and
Council of Kingston upon Hull, as ‘the council,’ the Minister of Housing and
Local Government and Secretary of State for the Environment as ‘the Minister,’
the East Riding County Council as ‘the county council’ and Mr H Needler and the
trust and company in which the name Needler appears as
engineers, as ‘the engineers.’
These
references concern the compensation payable for the compulsory purchase of some
560 acres of land now within the council’s area. The compulsory purchase order
was confirmed by the Minister on May 29 1970, notices to treat were served on
April 25 1972, and in some but not all cases possession has been taken. The
main question before us at this stage, put shortly, is whether there was one
scheme of development embracing both the subject land and other land to the
south of it and the extent to which, if any, the effect on values of the
development of the other land falls to be disregarded. We are not at this stage
concerned with the assessment of values, because that exercise cannot usefully
be carried out pending our decision on the interim matters.
The Facts
The subject
land is bounded on the north by the present city boundary, on the east by the
Old Main Drain, on the south by the Wawne Drain, on the west by open land to
the west of which lies the River Hull. The area to the north of Wawne Drain is
now known as North Bransholme. The Wawne Drain lies about a mile from the
pre-1968 city boundary, and the intervening area is now known as South
Bransholme. South of the pre-1968 city boundary runs Sutton Road. Generally to
the south of that and the pre-1968 city boundary is the area of the city as it
had been developed up to the war. For convenience we are attaching as an
appendix to this decision a diagram identifying the places and areas referred
to in this decision.
The parties
have agreed a statement of primary facts and there now follows a precis of
those facts as agreed or, where there is no agreement, as found by us.
At all times
since the war, and probably before the war, the council have been faced with a
large slum problem. The problem lay not only in demolishing unfit dwellings but
also in finding suitable sites for rehousing persons displaced, there being
very little land available and suitable within the pre-1968 boundary. That is
the area for which the council were the local planning authority. In the
development plans submitted by the council and the county council in,
respectively, 1951 and 1954 provision was made for some rehousing of an
estimated 26,000 overspill population of the city. The development plans
related to the 20-year period beginning in 1951. Accordingly, to accommodate
the short-fall and to provide for possible increase of overspill requirements,
it was necessary for the council to look for further land in consultation with
the county council, who were the local planning authority for the area outside
the pre-1968 city boundary.
In the ensuing
years the council considered where best to provide for the housing requirements
not so far allocated, and early in 1955 it was decided to apply for planning
permission for an area north of the city and to carry out the necessary works
for sewering it. Accordingly, on September 16 1955, the council applied to the
county council for planning permission for development described as ‘housing
estate with ancillary buildings, including schools, shops, churches, cinemas,
licensed premises, etc.’ The area for
which application was made was of about 2,500 acres and included all the area
now known as Bransholme North and South and, in a statement accompanying the application,
it was stated that it was intended to accommodate up to 30,000 persons.
However, the two councils agreed to treat the application as a preliminary
inquiry for discussion rather than as a formal application for planning
permission.
Councils’
‘Differences’
The council
were unable to convince the county council that their figures were valid and
accordingly the two councils agreed to ask the Ministry informally to resolve
their differences. That was done by a letter dated May 10 1957, in which one of
the Minister’s officers said:
‘If, therefore,
the whole of the overspill accruing in the Plan period is to be accommodated
(at whatever date) in the East Riding, further specific allocation of land
should be made for 40,000 less 19,000 equals 21,000 persons. The very important
assumption has been made here that land set aside will be available for local
authority housing or private enterprise housing as circumstances may demand.’
It is clear
that both councils accepted those figures and acted on them. Thus the local
town planning officer prepared a plan showing an area of 2,200 acres lying
between the then city boundary and reaching almost the northern boundary of the
subject land, and it was said that this would accommodate the necessary houses
for 21,000 persons. However, the county council were far from accepting that
such a large area of land was necessary to accommodate that population. The
county council were particularly opposed to development north of the Wawne
Drain and suggested that an area of 1,370 acres south of it would be adequate.
The council accepted the county council’s suggestion and made application for
planning permission for the implementation of it.
Series of
Applications, Inquiries and Decisions
The
application was ‘called in’ by the Minister for decision by him and a public
inquiry was held into it by his inspector in July 1958. At the same time an
inquiry was held into an application which had been made by Needlers in July
1957 for residential development of a substantial area lying between the River
Hull, Sutton Road and the Wawne Drain, and for ancillary development including
a sewage disposal works.
At the inquiry
it was an essential part of the council’s case that an examination of housing
requirements and of land availability showed a net deficit of land for planned
overspill of 21,000 persons. On the other hand, it was said on their behalf
that the site the subject of the planning application would accommodate only
9,100 people but that a further
a deficit of 5,000 which the council would have liked to be accommodated on
what is now the subject land, but that hope had been temporarily abandoned
owing to difference of opinion. The inspector in his report stated that it was
clear that there was ample land south of the Wawne Drain to accommodate all the
expected overspill of 21,000 persons and that there should be no need to extend
the development north of the Drain. Accordingly, he recommended that both
applications should be refused save in so far as they related to a sewage
treatment works, because it would not be right to carry out development without
an integrated plan for the whole of the area south of the Wawne Drain. The
Minister’s decision, agreeing with his inspector’s recommendation and refusing
permission other than for the sewage disposal works, was conveyed in a letter
of March 6 1959. In that letter it was said that the Minister considered that
the application land should only be developed in accordance with an integrated
plan for the reception of overspill from Hull within the area bounded by the
River Hull, the Wawne Drain/Foredyke Stream, the 5-ft contour east of the Wawne
Drain and the city boundary and said that he considered that such a plan should
be prepared and submitted to him as soon as maybe.
In February
1960, the county council submitted to the Minister an amendment to its
development plan for the area described by the Minister in his decision and in
order to provide for its residential and ancillary development. On August 24
1960, the council made application for planning permission for similar
development for that area and at about the same time submitted a compulsory
purchase order for the land within that area not already owned by them. In
November 1960, one of the Minister’s inspectors held an inquiry into the
proposed amendment to the development plan, the application for planning
permission, the compulsory purchase order and an application for permission
which had been made by Needlers in May 1960.
In a letter
dated March 12 1962, the Minister’s decision concerning the amendment plan was
given to the effect that he was unable to approve it without modification. He
considered that the provisions were open to a number of objections one of which
was that they did not allow sufficiently for the possibility of further
development to the north and north-west. He considered that further overspill
from Hull was likely to accrue on a substantial scale after 1971 and that while
he could not then prejudge the selection of appropriate areas for its
reception, it appeared to him that it might eventually prove necessary to
accommodate it to the north and north-west of the amendment area, which area
therefore should be planned in such a way as to allow for further substantial
expansion should that prove necessary. On the same date he granted planning
permission on the council’s application subject to certain exceptions and
recorded that the inspector had said:
‘It would not
be right to upset this plan which has formed the basis of thought in seeking a
solution to Hull’s problem of overspill for the last 20 months by attempting to
include the 1971 to 1981 overspill.’
By another
letter he granted permission for part of the Needlers’ application and by
another letter confirmed the compulsory purchase order in respect of rather
more than 200 acres of the 394 acres included in the order. The Minister
reduced the area for compulsory acquisition on the ground that sufficient land
should remain available to enable private building to make some contribution
towards the housing in this area of people moving out from the city. In another
letter of that date he also confirmed as to part another compulsory purchase
order for land required for sewage disposal works and associated shelter belt
purposes.
In August
1968, the council submitted to the Minister an amendment of their development
plan for Bransholme and environs, which area had now come within the council’s
boundary. The development proposed was that which it was considered could be
accomplished by December 1981 in two stages, the first being from the date of
approval of the plan to June 1975, and the other from then to June 1981. At
about the same time an application was submitted for the development of the
subject land for which a compulsory purchase order had been made. The Minister
caused a local inquiry to be held in January 1969 into those matters and into
an application which had been made by Needlers for the development of land
north of the Wawne Drain, part falling within the area of the subject land. The
Minister approved the amendment to the development plan and granted the
council’s application, confirmed the compulsory purchase order subject to a
modification excluding about 67 acres owned by Needlers and granted permission
to Needlers in respect of part of their application.
Proposed
District Centre
In 1966 the
council’s town planning officer submitted a report on a proposed district
centre for what was then described as the Wawne area, and in it he stated that
the immediate population to be served would be about 26,000 persons, with the
probability of a further 20,000 persons being accommodated in the area north of
the Wawne Drain before 1973. A committee of the council accepted the general
proposals in the report in principle but no more. In August 1968, the town
planning officer submitted a document entitled ‘Bransholme — Proposed District
Centre — Specification of Planning Requirements’ to the council and it was
approved. One of the purposes of the document was to invite developers to
submit schemes for the development of a district centre, and it was stated that
the council intended to commence the development of Bransholme. North in 1971
and that it was expected that more than 45,000 people would have been housed at
Bransholme by 1974-75.
Concurrently
with their town planning exercises the council were taking steps to provide a
drainage system, including the construction of a sewage disposal plant for the
Bransholme area, and they instructed the engineers for that purpose. Following
reports and discussions, the instructions to the engineers were to provide a
scheme for a total population of about 34,000 in both Bransholme North and
South. However, following the decision of the Minister, those instructions were
revised to the effect that the scheme and work should be designed to cater for
an initial population of 22,000 in Bransholme South and that provision should
be made in the design to deal with a future additional population of about
11,000 in Bransholme North. Those works were carried out at a cost of about
£740,000, of which £34,000 was attributable to making provision for the future
treatment of effluent from Bransholme North.
In April 1960,
the council submitted proposals to the Local Government Commission for an
extension of the city by the inclusion of, among other areas, Bransholme North
and South. They stated that land to the south of the Wawne Drain was required
to accommodate 20,000 persons and to the north 11,000 persons by 1981. Those
proposals were accepted by the commission, which included them in its own draft
proposals, which, in turn, were accepted by the Minister following a public
local inquiry and finally became effective by the Kingston upon Hull Order
1968.
An integrated
plan for South Bransholme has been substantially implemented. The total area is
about 1,000 acres and the development includes not only housing but schools and
open spaces, and local centres and a district centre, and of that total about
194 acres are being developed by Needlers.
We now leave
the facts and turn to the considerations which arise from them.
The Issues
It is common
ground that in valuing the subject land for the purposes of compensation there
has to be taken into account the actual grant of planning permission on May 29
1970 for the whole of the subject land. It is also agreed that in valuing the
lands it is necessary to leave out of account any increase or diminution in the
value of the properties attributable to the carrying-out, or the prospect, of
such development as is mentioned in column 2 of Case 1 in Part I of Schedule 1
to the Land Compensation Act 1961, as would not have been likely to be carried
out if the acquiring authority had not acquired, and did not propose to
acquire, any of the properties or, as the case may be, any specified subject
property.
The issues for
our determination were expressed in writing by the parties as follows:
(a) Is it also necessary in law to leave out of
account any increase or diminution in the value of the properties which is attributable
to the carrying-out or the prospect of some other development?
(b) If so, what is the precise extent of such
other actual or prospective development?
Mr Glidewell,
for the claimants, said that he would like to rephrase the first question as follows:
‘Apart from
the increase in value disregarded under section 6 of the 1961 Act, is the
valuer also obliged to leave out of account a scheme of acquisition within the
common law principle, and if so, how wide is that principle in law?’
The expression
‘common law principle’ is, perhaps, a convenient if inaccurate label for the
rule which is commonly known as the Pointe Gourde principle, the name of
which is derived from the title of the decision of the Privy Council in Pointe
Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands
[1947] AC 565, where Lord MacDermott said at 572:
‘It is well
settled that compensation for the compulsory acquisition of land cannot include
an increase in value which is entirely due to the scheme underlying the acquisition.’
The first
question arises for two reasons:
(1) because Mr Layfield, on
behalf of the council, contended that at all material times the council had but
one scheme embracing not only the subject properties but also land in
Bransholme South and that it was that scheme which underlay the acquisition;
and
(2) because the value-effect
on the subject properties of development on land in Bransholme South envisaged
by that scheme is (because that development is outside the area covered by the
compulsory purchase order) not required to be ignored by section 6 of the Act
of 1961 and the First Schedule thereto.
Does ‘Pointe
Gourde’ Principle Apply?
Mr Glidewell
submitted that the effect of section 6 of the Act of 1961 and the First
Schedule thereto was that the Pointe Gourde principle now has only a
very limited application, that is to say, where it is needed in order to ‘plug
a gap.’ He pointed out that the
principle was an illustration of the general principle that compensation was based
on the value to the vendor and not the value to the purchaser. The decision of
the House of Lords in Fraser v City of Fraserville [1917] AC 187,
where the vendor was seeking to take advantage of the additional value of his
land created by the purchasing authority, was a good example. It was clear that
the Act of 1961 put into statutory form a part at least of the Pointe Gourde
principle. It was arguable that the Act embodied the entire principle, but that
point was, having regard to the authorities, not open to him before us. He
reserved that point for argument elsewhere. He was nevertheless entitled to and
did argue before us that the incorporation in the Act of 1961 of most of the
circumstances to which the Pointe Gourde principle would apply means
that that principle is now applicable only to lacunae which the Act of 1961
left unfilled. He added that there are only two lacunae which, on the
authorities, the Pointe Gourde principle is available to cover. They are:
(1) The value-effect on the
land acquired (‘the relevant land’ for the purposes of section 6 of the Act of
1961) of development of that land envisaged in the acquiring authority’s
scheme: as in Viscount Camrose v Basingstoke Corporation [1966] 3
All ER 161;
(2) The value-effect on the
land acquired of the acquiring authority’s scheme as a whole, where the land
acquired was but part of the land compulsorily acquired and the latter land was
itself but part of the scheme area: as in Wilson v Liverpool
Corporation [1971] 1 WLR 302.
Mr Glidewell
relied particularly on the decision of the Lands Tribunal (Sir Michael Rowe QC,
President, and J Watson FRICS) in Kaye v Basingstoke Corporation
(1969) 207 EG 545, 677, 727, 836, 904. In that case the land acquired was not
the subject of any compulsory purchase order, but it was the subject of an
agreement for purchase by the acquiring authority in which the purchase price
was expressed to be the sum which would have been payable by way of
compensation if prior to the date of the agreement, a compulsory purchase order
had been made and confirmed authorising the purchasers to acquire the property
pursuant to the Acquisition of Land (Authorisation Procedure) Act 1946 and the
Town Development Act 1952 and a notice to treat had been served on the date of
the agreement. The tribunal decided on the facts that the corporation’s scheme
was the overall scheme for the town development of various areas of
Basingstoke, as defined in an agreement dated October 31 1961 between the
corporation, the London County Council and the Hampshire County Council. It was
clear, however, as the agreement for purchase expressly declared, that the land
acquired did not form part of any area defined as an area of town development.
It was because of that fact, and because the notional compulsory purchase order
comprised no land other than the land acquired, that none of the cases in the
First Schedule to the Act of 1961 applied and that, more particularly, Case 4
(‘Where any of the relevant land forms part of an area defined in the current
development plan as an area of town development’) did not apply. The question
for the tribunal was, therefore, whether the Pointe Gourde principle
applied so as to require that the value-effect on the land acquired of the town
development proposals relating to other land should be ignored. The decision of
the tribunal is to be found at page 905 in these words:
‘The question
that we have to answer is whether the common law rule survives so as to apply
to cases where the relevant land is not within the scope of section 6 and the First
Schedule. We have come to the conclusion that we are not bound by the Camrose
decision to regard the common law rule as surviving except to meet the position
the Court of Appeal was faced with. We will summarise our reasons for having
done so. Particularly when looked at in their historical perspective, the Acts
of 1959 and 1961 appear to provide a code applicable to all cases of compulsory
acquisition of land. There may be gaps in that code as the Court of Appeal
found in Camrose. Where there is a gap it may be plugged by having
recourse to the common law rule, but the plugging of those gaps is the only
function for which the rule remains alive.’
The tribunal
found support for this view in obiter dicta in Davy v Leeds
Corporation by Lord Denning MR in the Court of Appeal [1964] 3 All ER 390
at 394, and by Lord Dilhorne in the House of Lords [1965] 1 All ER 753 at 758.
Further support can be found for the view taken by the tribunal in obiter
dicta by Winn LJ in his judgment in the Court of Appeal in Devotwill
Investments v Margate
of the Court of Appeal and the House of Lords in subsequent cases that the Pointe
Gourde principle is treated as being very much alive. See Minister of Transport
v Pettitt (1969) 20 P & CR 344; Rugby Joint Water Board v Shaw-Fox
[1973] AC 202; Myers v Milton Keynes Development Corporation
[1974] 1 WLR 696. We believe that the true view is that expressed by Russell LJ
in the Camrose decision where he said that it is not possible against
the background of the history of compensation for compulsory acquisition to
construe section 6 of the Act of 1961 as tacitly or by implication altering the
law. That view is consistent with a passage in Halsbury, Laws of England,
vol 36 at p 412:
‘Except in so
far as they are clearly and unambiguously intended to do so, statutes should
not be construed so as to make any alteration in the common law or to change
any established principle of law.’
It is
understandable that as a matter of convenience in judgments or decisions, where
section 6 of the Act of 1961 and the Pointe Gourde principle cover the
same ground, express reference should be made only to section 6 and that this
may make it appear that the principle is limited to covering ground which is
not within the section. However, it is our opinion that, as a matter of strict
law, both the section and the principle must be applied, where on the facts
they are capable of applying, independently of the other. If we are wrong in
this view we nevertheless find difficulty in understanding why there was not in
Kaye’s case a gap revealed which should not have been plugged by the Pointe
Gourde principle. For these reasons we feel unable to follow that decision.
Moreover, if Mr Layfield’s contention be right, we find no significant point of
distinction between the facts of the present case from those of Camrose
(if the properties acquired in the present case are to be regarded as a single
piece of land) or those of Wilson (if each of them is to be considered
separately). We must accordingly proceed to determine whether Mr Layfield’s
contention is correct.
One Scheme or
More?
Mr Layfield
for the acquiring authority put this question in this way:
‘Was the
proposed development of the subject land part of a wider proposal that had
developed by the material date sufficient to be described as a scheme, that is
the scheme underlying the acquisition?’
He said there
were three possible material dates, namely the date of entry, the date of the
notice to treat and the date of the compulsory purchase order. He submitted
that the most likely date was the date of entry, that being the date when
valuation normally falls to be made, or perhaps the date of the notice to
treat, but not that of the compulsory purchase order. He then went to to list
eight points which he said the authorities establish:
1. Not too much importance should be attached
to the word ‘scheme’; Wilson v Liverpool Corporation (supra).
2. It is not necessary to confine the scheme
in any way to the compulsory purchase order under which the subject land is
acquired (ibid).
3. A scheme is a progressive thing and need
not be precise and definite (ibid).
4. It is not necessary for the acquiring
authority to have achieved the right to acquire the subject land and so be
competent of executing the scheme even by the date when the existence of the
scheme is to be judged (ibid).
5. The acquiring authority need not have
acquired planning permission at the time when the extent of the scheme is to be
judged.
6. The fact that part or parts of the scheme
area are acquired by agreement does not prevent land so acquired forming part
of the scheme (ibid).
7. The fact that the proposals involved
separate acquisitions, by instruments or time, does not prevent the joint
proposals constituting one scheme; Fraser v City of Fraserville
(supra).
8. It is relevant to inquire whether the
proposals said to constitute the scheme comprised activities by a public
authority in pursuance of powers and duties involving the expenditure of public
money that may thereby increase the value of the subject land (ibid).
Mr Layfield
then submitted that the question is whether there is a scheme at the material
date, that is the date of entry or notice to treat, and then to look back to
ascertain its extent. He referred to Bwllfa & Merthyr Dare Steam
Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426 as
authority for the proposition that one should see what in fact has occurred. He
then referred to the history of this matter and concluded that by September
1966 the boundaries of the scheme had become clear, that is to say well before
the making of the compulsory purchase order for the subject land. He said there
must be a date at which one asked was there a scheme and did it include
Bransholme North and that by September 1966, and certainly by the date of the
notice of entry, there was a scheme which included both Bransholme North and
South.
Mr Glidewell
did not dissent from Mr Layfield’s submissions on law, and indeed counsel
seemed by necessary implication to agree that the question we have to decide,
namely whether there was one scheme or more than one scheme, is a question of
fact. For our part we find it useful to adopt the test posed by Mr Layfield,
namely to find out on what date there was a scheme and then to ascertain
whether it included Bransholme North.
Further Facts
When the
council started in about 1950 to formulate its policy for dealing with
overspill it had to make four fundamental and interrelated decisions, namely:
(1) the period of time for which they would plan,
(2) the population to be housed in the overspill
area,
(3) the area of land required to house that
population with ancillary development, and
(4) the definition of that area.
The first
decision had in effect been made and was stated in the written statement to the
council’s development plan, that is to say to meet the needs up to 1971. For a
time the second problem was a matter of dispute between the council and the
county council, but that was settled by an informal arbitration, so that Mr
Docking, the Minister’s inspector who held the inquiry in 1958, was able to
report:
‘It has been
agreed between Hull Corporation and the East Riding County Council, and
accepted even by the objectors, that Hull has an overspill population which for
present purposes is taken as the need to rehouse 40,000 of Hull’s population in
the county area on the periphery of the City between 1951 and 1971. It has also
been agreed that specific allocation of land in the Town Map for Haltemprice
and areas adjacent to the City of Hull has been made for 19,000 people, leaving
21,000 to be accounted for.’
This answered
points 1 and 2 but left unresolved a disagreement between the council
responsible for the rehousing of overspill and the county council as local
planning authority whose duty was to see that the rehousing should take place
according to the best possible planning principles. On the one hand the council
was asking for an area including Bransholme North and on the other hand the
county council were of the view that the council had overestimated their land
needs and that it was unnecessary to develop north of the Wawne Drain. As a
result of the inquiry held in 1958 and the Minister’s decision letter,
conclusions were reached
planning permission made in 1960 for the development of the area bounded on the
north by the Wawne Drain and now known as Bransholme South.
Tribunal’s
Conclusions
We conclude
that by the time that application was made in 1960 the council had decided on a
defined project for a defined purpose with defined boundaries and that it was a
scheme complete in itself. It is true that provision was made for the ultimate
development of Bransholme North in that the sewage treatment works could be
expanded as necessary, and provision was made for a road extension. However,
those precautions are common and everyday practice by local authorities whether
or not there is a scheme and whether or not the development is being carried
out by a local authority or private developer. They are measures which are
taken even where there seems to be no likely prospect of the land which the sewers
and roads would serve being developed. There was then a gap of over eight years
until 1968, when the council submitted their application for permission to
develop Bransholme North and made the compulsory purchase order for the subject
land. That we find was an entirely fresh project to be undertaken following the
completion of the previous project. This second project, namely the one for
Bransholme North, was for a certain period, for a certain estimated population
and with boundaries.
We conclude
from these facts that there were at least two separate schemes; one being for
Bransholme South and the other for Bransholme North. We say ‘at least’ because
we are not satisfied that the development by Needlers in Bransholme South
(following the Minister’s decisions of 1962) was part of the council’s scheme,
or could be part of the council’s scheme, but rather we think it was a separate
scheme undertaken by Needlers. We are fortified in our conclusion when we
consider what would be the consequences if we took the view urged upon us on
behalf of the council. Mr Taylor, the council’s town planning officer, said, in
answer to Mr Layfield, that provision for overspill is a rolling, continuous,
monitored review, a continuing process which he compared with a rolling programme
for roads. A rolling programme for roads is infinite, that is to say when a
decision is made to make or improve a road the works are just added to the
highway authority’s programme for roads. That proposition applied to overspill
is a concept we find it impossible to accept.
It follows
that we determine as a matter of fact and law that it is not necessary to leave
out of account any increase or diminution in the value of the subject
properties other than is expressly provided for in Part I of Schedule 1 to the
Act of 1961. Under the circumstances the second question does not arise.
The authority
will pay three-quarters of the claimants’ costs to date, such costs, if not
agreed, to be taxed by the Registrar of the Lands Tribunal on the High Court
scale.
