Land drainage works to stell or watercourse near Thirsk — Fence erected after works not of standard of fence removed — Need of strong fence to turn away sheep or lambs — Loss occurred five years before reference to tribunal — Tribunal disallows credits against costs — Advantage of having new material (pig netting) now, rather than having material by now some five years old, offset by disadvantage of having substandard fence for five years — Delay in referring dispute to tribunal not unilateral, as authority could also have initiated reference — Claim for £257.55 awarded in full
C M Wilson,
solicitor, of Latimer, Hinks, Marsham & Little, of Darlington, appeared for
the claimant; J Jenyns, solicitor, of Arthur W Walker & Hiley, of Thirsk,
for the compensating authority.
Giving his
decision, MR HALL said: This is a reference to determine the compensation under
the Land Drainage Act 1976.
The Cod Beck
Internal Drainage Board, in terms of their powers under the Land Drainage Act
1961, entered upon land belonging to Mr W A Andrew, Broads House Farm,
Borrowby, near Thirsk, to improve and clear the watercourse known as Crosby
Stell. It was intended to excavate and remove spoil from the east bank, but Mr
Andrew proposed that, as the west bank was an incline, the work should be
carried out from that side. Along the west bank Mr Andrew had erected, about
two years previously, a stock-proof fence consisting of 10 railway sleeper
straining posts, one at every change in direction of the stell, with heavy-duty
tanalised stakes every 3 yds. Heavy-gauge pig wire was stapled to the posts
with a top strand of barbed wire. The field on the west of the stell was used
for grazing sheep and because of the danger of sheep or lambs falling into the
stell a strong fence was needed to turn away the sheep or lambs from it.
Coxon Brothers
were appointed the contractors and commenced work in or about October 1975. The
specification for fencing was as follows:
The contractor
shall provide all materials necessary for the erection of fencing where grass
land adjoins the watercourse and where fencing is in existence alongside the
watercourse. The contractor shall erect the fencing in as straight a line as
possible and keep to a minimum changes in direction of the line of fencing and
at each necessary change of direction a strainer post or posts shall be driven.
The contractor
shall supply tanalised or celcured larch posts 1.676 m long x 75 mm diameter.
The posts shall be driven firmly into the ground so that the top of each post
is 0.91 m above ground level. Posts shall be driven at intervals of 4 m and not
nearer than 0.50 m from the top of the slope of the bank of the watercourse.
Two strands
of barbed wire shall be attached to the fence posts, the top strand shall not
be more than 50 mm below the top of the post and the lower strand 380 mm-450 mm
below the top strand of wire.
This
specification is the normal one used by the board on schemes which are the
subject of a Ministry of Agriculture grant, but it is agreed by the board that
a fence of that type would not turn lambs. Neither the board nor the contractor
discussed with Mr Andrew the type of fence to be erected.
The contractor
removed the existing fence and laid aside the sleepers and the posts with the
pig netting attached. Mr Coxon said in evidence that Mr Andrew agreed to
dismantle the netting, but Mr Andrew disputed that.
A fence to the
above ministry specification was erected; Mr Andrew objected to that fence
after it was erected, but the contractor said that he could only carry out his
instructions. Accordingly, Mr Andrew formally wrote to the board on January 26
1976 complaining that the fence erected was not of the standard of the fence
removed. On May 3 1976, the board replied saying that ‘they are not prepared to
carry out further work on the fencing which has been inspected by the
ministry’s regional engineer and a board member, and found to be erected to the
required specification’. Mr Andrew then took the matter up with the board’s
vice-chairman.
The board
apparently offered to replace the pig wire, but this was rejected by Mr Andrew.
Since then various negotiations have taken place. Correspondence, agreed as
factual by the parties, was lodged and from that it was pointed out, on behalf
of the board, that they offered the following amounts: in 1978 — £80, in 1980 —
£120 and in July 1981 — £150.
In August
1977, Mr Andrew sent the board the following valuation prepared by R E A Newton
BSc ARICS, of Northallerton Auctions Ltd, setting out the cost of replacing the
fence so far as practicable to its original state:
|
1. Replace 10 railway sleeper strainer posts |
£45 |
|
2. Five rolls of pig netting |
80 |
|
3. Labour to erecting same |
48 |
|
4. Stones |
20 |
|
5. Time spent erecting temporary stock-proof fence |
12 |
|
205 |
|
|
Surveyor’s |
21.28 |
|
£226.28 |
The reason for items (1) and (5) was explained by Mr Andrew as
follows. He took the wire off the removal posts and fixed it temporarily to the
posts which had been erected by the contractor, but the wire had deteriorated
and the fence was not strong enough to be stockproof. The sleepers which had
been left lying on the ground were, he said, washed away when in 1977 the land
was flooded to a depth of about 3 or 4 ft by the Cod Beck overflowing. After
the flood he was unable to trace the sleepers which he owned.
Section 17(5)
of the Land Drainage Act 1976 states:
Where injury
is sustained by any person by reason of the exercise by a drainage authority of
any of their powers under this section, the authority shall be liable to make
full compensation to the injured person; and in cases of dispute the amount of
compensation shall be determined by the Lands Tribunal.
As the amount
is in dispute, it has been referred to the tribunal.
The claim now
presented to the tribunal has the same items as set out in the August 1977
claim, but the figures are adjusted to reflect current costs thus:
|
1. Sleepers as before |
£45 |
|
2. Pig netting |
74.75 |
|
3. Labour: four man days at £24.45 |
97.80 |
|
4. Removing stones |
20 |
|
5. Erecting temporary netting |
20 |
|
£257.55 |
The respondent authority accepts the actual figures put forward if
the tribunal finds that the items of claim were established. It was submitted,
however, that if the tribunal did so find, there should be deducted from the
compensation a sum of £55, being the board’s opinion of the secondhand value at
1975 of 10 railway sleepers, the pig wire and 75 tanalised posts taken down and
laid aside for the farmer to retain. In considering the items of claim, I was
particularly asked to determine whether the £74.75 for pig netting should be
allowed in view of the fact that the netting from the previous fence had been
used. The board disputed that there were stones or roots in the spoil removed
from the stell and therefore item 4 should not be allowed. The figure which the
board asked the tribunal to determine was £90 calculated as follows:
|
Cost of sleepers |
£45 |
|
|
|
|
Labour erecting them |
97.80 |
|
|
|
|
£142.80 |
|
say |
£145 |
|
|
Less credit for materials |
|
|
|
£55 |
|
|
|
|
£90 |
Along with the parties I inspected the Crosby Stell and the new
fence between it and Mr Andrew’s land.
This dispute
appears to arise from a lack of communication at the beginning. The
specification was drawn up on the assumption that the stell would be cleared
from the east bank, where such a fence would have been acceptable. Mr Andrew
proposed that it should be done from the west bank, which was accepted by the
board. Mr Coxon had tendered for the specification fence and cannot be blamed
for adhering to that. Mr Robertson, the engineer from the water authority who
advised the board, said that the specified fence was used in all grant-aided
schemes but if the occupier was not satisfied negotiations should take place
before commencement of the work. In this case, this was not done as Mr Andrew
had not raised the matter until the fence was erected.
Having
accepted that the work should be done from the west bank, it is not disputed by
the board that they should pay full compensation.
I find that
the claimant is entitled to have a fence with railway sleeper straining posts
as he had before. The claimant, by his claim, implies that to have a fence of
sufficient strength to carry heavy-gauge pig netting to turn sheep and lambs,
it can be achieved by replacing the present straining posts with 10 sleepers
and stapling new pig netting to the sleepers and to the posts erected by the
board. I have inspected the existing netting and consider it inadequate; in
fact in one part new netting has been put up over the older netting. The
existing sleepers have disappeared and I have no contrary evidence to refute Mr
Andrew’s explanation of what happened to them. I therefore accept the first
three items of the claim totalling £217.55.
So far as the
removal of stones is concerned, I was shown where the drinking space had been
and I have no reason to doubt that it is likely that some stones may have been
included in the spoil and had to be removed. I also accept that the attachment
of the netting removed from the posts taken out may have been done to try to
mitigate further loss. I therefore accept the £20 claim for each of these
items.
This leaves
the question of credits against the cost. Mr Coxon said that normally when a
fence is taken down the materials are either buried or removed to a dump or if
they are good they are left for the farmer. I note that the specification item
is ‘dismantle and clear existing fencing’. There was no evidence to indicate
that the farmer would have to pay for any materials left. I have accepted that
the sleepers were swept away and that the pig netting removed from the previous
posts is inadequate. There was no information as to what happened to the posts
which were taken out. Mr Coxon placed a secondhand value of about £11 on them,
being one half of the cost of new posts in 1975.
Secondly, it
was submitted for the respondents that the costs were being calculated at 1981
figures whereas the loss was in 1975. The claimant, therefore, it was said, was
obtaining an advantage in getting new netting now rather than have netting
which would now have been five or six years old. A discount should be made for
this advantage.
Thirdly, over
five years had elapsed before the claimant had referred the matter to the Lands
Tribunal, which had escalated the claim and this should be taken into account.
In all the
circumstances of this case, I find that no credit should be made against the
accepted claim. The posts would probably have been left in any event. It may be
necessary to insert posts to reduce the 4 m interval to firm the netting. The
advantage of having new netting is difficult to quantify and no evidence was
given by the authority as to the assessment of this. In my opinion, any
advantage has been offset by the disadvantage of Mr Andrew having a substandard
fence for the period of five years. The delay in bringing the matter to the
tribunal is not a unilateral one, as the board could also have initiated the
reference. Mr Andrew has tried by other means to persuade the board to provide
a fence to the standard he had and, having regard to my award, was justified in
eventually having the dispute determined by the tribunal.
I therefore
determine the compensation at £257.55 to which shall be added the surveyor’s
fee based on scale 5(a) of the Royal Institution of Chartered Surveyor’s scale
of charges and proper legal costs incurred from October 1975 to the date of the
notice of this reference.
The respondent
authority will pay the claimant his costs of this reference in the agreed fixed
sum of £180 plus value added tax.
