Lord Fitzwalter v Kent County Council

Land at Snowdown, Kent, acquired for gypsy caravan site — Claim for land taken and injurious affection — Certificate of188 appropriate alternative development granted for (a) open recreation uses (b) development having special local justification, including development related to agriculture or forestry — Gypsy caravans had unauthorisedly occupied part of land — Miscellaneous litter on land, which was mostly scrub, muddy and heavily rutted — Both parties’ comparables differ widely from subject land — Claimant’s valuer considered there would be demand for the land for purposes specified in certificate of appropriate alternative development, but authority’s valuer’s view was that the certificate added nothing to the value — Tribunal accepted claimant’s valuer’s view but felt that increase in value due to certificate was very small and could properly be reflected in amount per acre — Authority’s direct valuation approach preferred — Award of £3,200 against £10,912 claimed and authority’s figure of £2,000 — Tribunal rejects authority’s valuer’s view that planning consent for purposes set out in certificate would be granted for only limited area — A limiting condition could have been, but was not, included and valuer was therefore seeking to look behind certificate in unjustified manner Christopher Katkowski (instructed by Turner Kenneth Brown) appeared for the claimant; C Turnbull (instructed by the county solicitor of Kent County Council) for the acquiring authority. Giving his decision, MR REES said: This reference was made by the claimant, the owner of land at Aylesham Road, Snowdown, Kent, to determine the compensation to be paid in respect of its compulsory acquisition. The amount claimed for the land taken was £6,908 and £4,004 for injurious affection. The acquiring authority offered £1,882 for the land taken and £100 for injurious affection. Counsel for the claimant called Mr J V Clarke FRICS [partner, George Webb & Co]. Counsel for the respondent authority called Mr R C H Sheridan BSc (Est Man) Lond, a principal estate surveyor in its employ. The relevant order is the Kent County Council (Aylesham Road, Snowdown) Compulsory Purchase Order 1978, which was made on July 27 1978 and confirmed on December 10 1979. The order was made under the Caravan Sites and Control of Development Act 1960 and the Caravan Sites Act 1968. The land was acquired for the purpose of establishing a caravan site. Notice to treat dated February 29 1980 and notice of entry dated November 11 1980 were served on the claimant. Entry was taken on February 2 1981, which thus becomes the valuation date. There was an agreed statement of facts and from this I note that the land taken had an area of about 2.5 acres and it had a frontage to Aylesham Road. Snowdown is a hamlet close to Snowdown Colliery. The land is close to the Canterbury/Dover railway line. The north-west boundary of the land is a public bridleway which leads from Aylesham Road to a small wedge of land not owned by the claimant. This wedge had a frontage to the railway. Adjoining the south-east boundary of the land taken is an area of land of 0.69 acre which is owned by the claimant and was referred to before me as ‘the severed land’. On the opposite side of Aylesham Road is land running to about 560 acres which is owned by the claimant and farmed by him as a single unit. A gas main has been laid under part of the severed land and part of the land taken. Following this work, scrub was removed and gypsy caravans unauthorisedly occupied some of the land. Attempts were made to remove these occupiers, but the claimant was requested by Dover District Council (not by the acquiring authority) not to pursue court proceedings for possession. An application for deemed planning consent to put caravans on at least part of the subject site was made by Kent County Council, notice being served on the claimant in 1976. Consent was granted, but it is agreed between the parties that this enures for the benefit of the acquiring authority only. In April 1980 application was made by the claimant with other owners for a certificate of appropriate alternative development under section 17 of the Land Compensation Act 1961, and a certificate dated November 17 1980 was issued by Kent County Council in respect of the land taken, the small wedge of land referred to above and another small parcel south-east of the land taken (not owned by the claimant). The certificate was to the effect that planning permission would have been granted in respect of these lands for: (a)    open recreation uses; (b)   development having a special local justification, including development directly related to agriculture or forestry. At the date of entry most of the land taken comprised scrub land: there was no substantial standing timber. The remainder together with the severed land had been cleared in 1970 for the installation of the gas pipe. On the land there was much miscellaneous litter including hardcore, tarmac, prams and vehicle parts. The ground was muddy and heavily rutted by vehicles. The site lies in an area not scheduled for any development in the Kent Structure Plan approved in 1980, where it is intended that existing uses for the most part should remain undisturbed. No formal vehicular access existed at the date of entry either to the land taken or to the severed land, but the parties agreed that an application for access for any of the uses specified in the certificate of appropriate alternative development would be successful without undue delay or conditions seriously affecting value. Similarly, they agreed that access would have been available to the land taken and would be available to the severed land over part of the land taken. The parties further agreed that all the land retained by the claimant was held with the land taken and that injurious affection, if any, caused by the acquisition of the land taken for the gypsy site is properly claimable. Parties’ valuations Mr Clarke’s valuation is as follows: Land taken 2.51 acres of freehold land at £3,500 per acre £8,785 Defer 1 year to obtain possession at 5% 0.95 £8,346 Less cost of removing caravans — estimate 1,000 Grubbing and clearing trees — 1.75 at £250 per acre 437.50 1,438 6,908 Injurious affection (a) to 0.69 acre, ‘the severed land’ 0.28 acre affected by gas main restrictions 0.41 acre at £3,500 as above 1,435 0.28 acre at £3,500 x 2/3 freehold value above 653 2,088 Defer 1 year to obtain possession at 5% 0.95 1,984 Less cost of removing unauthorised caravans and obtaining possession — estimate at 500 1,484 No cost of grubbing as land was already cleared — Less nominal value of site retained 200 1,284 (b)     to adjoining farmland and sporting rights 68 acres reduced in value by £2 per acre (= 10% of estimated rental value) 136 YP at 5% 20 2,720 Total value of loss suffered by claimant £10,912 As to the value of the land taken, Mr Clarke sought to support his figure of £3,500 per acre by referring to five transactions which had taken place in 1980 and 1981. Four of the parcels were close to Betteshanger Colliery, the fifth being on the outskirts of Sittingbourne. The four transactions at Betteshanger were criticised in cross-examination because of special circumstances surrounding each one; for example, two parcels had been purchased by adjoining owners. The land at Sittingbourne was said to have ‘hope value’. His choice of the rate of interest of 5% was also criticised: it was said that it should be substantially higher. Similarly, the amounts he had allowed for removing caravans and grubbing and clearing the land were criticised as being too low. To support his valuation of the land taken Mr Sheridan [see p 189] relied on 13 transactions of land which had taken place in the years 1980 to 1984 (both inclusive). These covered a huge area from Maidstone on the west to Pegwell Bay on the east, Monkton (about halfway between Canterbury and Ramsgate) on the north and Dover on the south. I viewed the subject land and all but two of the 18 comparables, which all differ widely in character, location and size from the subject land, but I do not think there was any disagreement between the two valuers on the view that close direct comparables were hard to find. 189 Mr Sheridan’s valuation was: Land taken 2.51 acres at £750 per acre £1,882 Injurious affection (a)     0.69 acre — ‘the severed land’ Value before scheme as land occupied by gypsies — spot figure, say £350 Value after scheme as semi-derelict land not occupied by gypsies but adjoining an established gypsy site, say 250 Injurious affection 100 (b)     Claimant’s remaining farmland 560 acres The establishment of a formal gypsy site on the claimant’s land has not materially altered the fact of a long-term gypsy presence in the immediate area. Before and after valuation the same. Injurious affection nil Total 1,982 Compensation payable, say £2,000 One of the comparables relied on by Mr Sheridan was the wedged-shaped piece of land adjoining the subject land; however, that has an area of only 0.43 acre for which the acquiring authority paid £430, but that figure includes some special costs by way of disturbance. That represents £1,000 per acre or £750 per acre excluding the special costs. It has no road frontage and is approached via the public bridleway. Award for land taken The main difference between the valuers was that Mr Clarke considered that there would be a demand for the subject land for the purposes specified in the certificate of appropriate alternative development, ie that the certificate added to the value of the land. Mr Sheridan’s view was that the certificate added nothing to the value of the land; there was much similar land to be found in this part of Kent and the limitation imposed by the word ‘special local justification’ would restrict the number of potential purchasers. Taking all the evidence together and having regard to my views of the comparables, I prefer Mr Sheridan’s direct approach. Mr Clarke’s figure of £6,908 represents a little over £2,750 per acre compared with Mr Sheridan’s £750 per acre. I accept Mr Clarke’s view that there would be a demand for the subject land for the purposes specified in the certificate of appropriate alternative development, but I think that the increase in value due to the certificate is very small and can properly be reflected in an amount per acre. The criticisms levelled at Mr Clarke’s figure of £3,500 per acre (being too high), the rate of interest and the figures of costs which he deducted are warranted. On the other hand, I think Mr Sheridan’s figure of £750 per acre is too low having regard to Mr Clarke’s comparables and to the settlement made in respect of the adjoining wedge of land. I find for a figure of £1,000 per acre to give £2,510 under this head of claim. Award for injurious affection As to injurious affection, in respect of the severed land the parties agreed that a claim for a substantial amount can be sustained. Their opinions as to the ‘after’ value (£200 — Mr Clarke: £250 — Mr Sheridan) are close. Mr Clarke’s figure of £1,484 represents £2,150 per acre. For the reasons given above in respect of the land taken, I think that this is too high. Similarly, I consider that Mr Sheridan’s figure of £350 is too low; it is equivalent to about £500 per acre. I find for a figure of £600 and accept Mr Clarke’s ‘after’ figure of £200, thus giving a net figure for the severed land of £400. As to the adjoining 560 acres of farmland I do not consider that Mr Sheridan’s view that there is no injurious affection to any of this is correct. There must at least be some nominal reduction in value as, although this is an area where gypsies are usually to be found, the unauthorised occupation by caravans (which might be removed by taking legal action) has been replaced by a permanent caravan site, but I think that the proper sum would be difficult to arrive at using such a calculation as is contained in Mr Clarke’s valuation. I propose to allow a sum of £300 under this subheading. Thus the total compensation for injurious affection is £700. That for the land taken being £2,150, I round off the grand total for the compensation to be paid to give £3,200. It was agreed that to this should be added a surveyor’s fee in accordance with scale 5A of the scales of charges of the Royal Institution of Chartered Surveyors. Provision is made under the relevant statutes for the payment of interest and the costs of the conveyance. It is right that I should record that counsel for the respondent authority made submissions regarding the operation of the certificate of appropriate alternative development. He pointed out that the certificate covered the land taken, the wedged-shaped piece of land adjoining and the small area south-east of the land taken. Those submissions are only relevant to Mr Clarke’s valuation. Since I have adopted Mr Sheridan’s approach, albeit using increased figures, I do not need to comment further on this matter. Mr Sheridan expressed the view that, if planning consent were applied for, for the purpose set out in the certificate of appropriate alternative development, the local planning authority would only grant consent for one acre of land and, further, that such a limitation should be taken into account if I were to adopt the approach used by Mr Clarke. It seems to me that that is not correct: a condition limiting the area could have been included in the certificate but none was. Mr Sheridan was therefore seeking to look behind the certificate in a manner which I do not consider is justified. Having opened the sealed offer of compensation lodged by the acquiring authority, I find that the amount thereof exceeds the amount of my award. By agreement of the parties, the acquiring authority will pay to the claimant his costs of this reference up to 10.30 am on September 21 1984 and the claimant will pay the costs of the acquiring authority thereafter, all such costs unless agreed to be taxed by the Registrar of the Lands Tribunal on scale 3 of the County Court Scales of Costs.