Compensation — Unconfirmed article 4 direction — Liability for compensation — Relevance of other legislation preventing use of land — Whether r (4) of section 5 of the Land Compensation Act 1961 applies
In May 1994 the compensating authority served on the claimant a direction under article 4 of the Town and Country Planning (General Development) Order 1990, withdrawing permitted development for the holding of motocross meetings. The article 4 direction was not confirmed by the Secretary of State for the Environment. In May 1995 the compensating authority served on the chairman of the Motocross Club, the potential users of the land, abatement notices under section 80 of the Environmental Protection Act 1990 preventing any future motor sporting events taking place on the claimant’s land; these notices were upheld on an appeal to the magistrates’ court. The claimant made a claim for compensation under sections 107 and 108 of the Town and Country Planning Act 1990 for the loss of his permitted development rights. Before the tribunal, the compensating authority contended, inter alia, that the provisions of the Environmental Protection Act 1990 prevented the use of the land for motor sporting events. Accordingly, r (4) of section 5 of the Land Compensation Act 1961 applied.
DecisionThe claimant was entitled to compensation.
It was not certain r (4) had any relevance; there was no expert evidence as to the effect on the capital value of the land to which r (4) could apply. The abatement notices were not served on the landowner. It is possible that the decision of the magistrates’ court may not have been upheld in further proceedings. It was not a matter of certainty that in the absence of the article 4 direction, the use of the land for motor sport could have been restrained: see pp74–75. By reason of the Secretary of State’s refusal to confirm the article 4 direction, the claimant suffered loss of revenue for which he was entitled to compensation. The relevant date for quantifying losses was the date the Secretary of State refused to confirm the article 4 direction: see p76E.
Wimborne and Cranborne Rural District Council v East Dorset Assessment Committee [1940] 2 KB 420
Reference to the Lands Tribunal
This was a reference to the Lands Tribunal by the claimant, KJE Bolton, to determine the amount of compensation, if any, payable to him following |page:1| the failure to confirm a direction under article 4 of the Town and Country Planning (General Development) Order 1990.
MR JC HILL said: This is a reference to determine the amount of compensation, if any, payable to the claimant following a notice of direction under article 4 of the Town and Country Planning (General Development) Order 1990.
The claimant appeared in person. Mr BRG Morgan, solicitor, appeared for the compensating authority and called Mr J Burton, mieho.
The land which was the subject of the article 4 direction is situated close to the south-east side of Iwerne Minster, Dorset.
The following are some of the facts agreed prior to the hearing:
1. The claimant is the freeholder of the subject land and is a semi-retired farmer.
2. The claimant derives income from the land either by letting his land for grazing by other farmers, by taking off grass or by other activities available to him.
3. On September 9 1990 the claimant allowed Fordingbridge & Ringwood Motocross Club to organise a motor cycle scramble meeting on the land. Following this meeting the parish council received complaints from villagers in relation to noise pollution and resolved to request the district council to monitor the next event.
4. The district council were not able to monitor the next meeting satisfactorily because of adverse weather conditions.
5. Consultations took place in the winter of 1990–1991 between the appellant and the environmental health officer of the respondent authority regarding possible future events. No events were held subsequently due to a lack of demand during the recession and the land was used for agricultural purposes.
6. On March 6 1994 the appellant wrote to the chief health and housing officer of the respondent council advising that it was proposed to hold the first event on June 12 1994. A meeting was subsequently held which was followed by a letter dated March 25 from the respondents setting out conditions to apply. It was agreed that the code of practice 1994 would apply and that the respondents would allow the meeting to proceed, monitoring it as a ‘trial’ for future events.
7. On April 17 1994 the appellant gave formal notice of the proposed event and full details to the respondents, which triggered an exchange of correspondence in which the respondents threatened to take formal action to prevent a statutory nuisance in their letters of May 6 and 17 1994.
8. Without warning, on May 23 1994, the respondents through their planning committee, resolved to withdraw the appellant’s permitted |page:2| development rights and on that date served a notice of direction under article 4 of the Town and Country Planning (General Development) Order 1990 (‘the article 4 direction’).
9. The effect of the service of the article 4 direction, as stated therein, was the withdrawal of permitted development rights immediately for the holding of motocross meetings, that express planning permission would be required for any such development, and that the withdrawal would apply until either the refusal of the Secretary of State for the Environment to confirm the article 4 direction or the expiry of six months from the date of issue without confirmation by the Secretary of State.
10. Following receipt of the article 4 direction, an application was submitted on behalf of the applicant for planning permission to use the land for motor sport race meetings and practices, once a week from July 3 to October 2 1994. The application was dealt with by the respondents under reference 2/94/0399/29 and was subsequently refused, the refusal notice being dated July 20 1994. No fee was paid or requested for this application.
11. On October 4 1994 a claim for compensation was submitted on behalf of the appellant to the respondents in accordance with section 108 of the Town and Country Planning Act 1990.
12. On November 21 1994 the government office for the South West, Bristol, advised the respondents that they were not prepared to confirm the article 4 direction as they were not satisfied that all other avenues had been explored to reach mutual agreement between the council and the landowner, and that the necessity to serve the article 4 direction had not been fully demonstrated.
13. On May 17 1995, abatement notices were served on the chairman and secretary of the Purbeck Motocross Club under the terms of section 80 of the Environmental Protection Act, requiring them to ensure that no motor sport events organised by the club would take place on the land.
14. The club, through their chairman, appealed against the notices on the grounds that: there was no statutory nuisance; the requirements of the notices were unreasonable in character and extent and were unnecessary; the respondents had refused unreasonably to accept compliance with alternative requirements; and that the nuisance arose on industrial, trade or business premises and that best practicable means had been used to prevent the nuisance.
15. The magistrates’ court which heard the case rejected all grounds of appeal, upheld the notices and prohibited the club from holding any further such events on the land at Preston Hill, Iwerne Minster.
Case for the claimant
Mr Bolton said that, in his view, the only matters which fell to be considered were those arising directly from the article 4 direction, and that events which occurred after the refusal of the Secretary of State for the Environment to confirm the direction were irrelevant.
Following the making of the article 4 direction he applied for planning permission to use the land for motor sport race meetings once a week from |page:3| July 3 to October 2 1994 and consent had been refused. He had therefore complied with all the requirements of sections 107 and 108 of the Town and Country Planning Act 1990 and was accordingly entitled to compensation.
But for the article 4 direction, 14 events would have been held on the subject land in the 1994 season. He had incurred expenditure in improving the access to the land, including new gates and fencing and had employed a surveyor to advise him in respect of the article 4 direction, the planning application and the preparation of the claim.
He therefore claimed:
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£ |
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1. Loss of rent: |
one event at £175: |
175 |
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|
13 events at £300: |
3,900 |
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|
Total |
4,075 |
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|
2. Access works: |
300 |
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|
3. Surveyor’s fees: |
235 |
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|
Total |
£4,610 |
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Case for the compensating authority
Mr BRG Morgan referred me to section 5(4) of the Land Compensation Act 1961, which in respect of the rules for assessing compensation states:
(4) Where the value of the land is increased by reason of the use thereof or of any premises thereon in a manner which could be restrained by any court, or is contrary to law, or is detrimental to the health of the occupants of the premises or to the public health, the amount of that increase shall not be taken into account;
He argued that it followed that where an increase in the value of land had resulted from a use which could be restrained by the courts, such increase could not be taken into account. In the present case, the use of the land for motorcycle events would have constituted a statutory nuisance under the provisions of the Environmental Protection Act 1990, the relevant parts of section 79(1) stating:
79.– (1) Subject to subsections (1A) to (A) below, the following matters constitute ‘statutory nuisances’ for the purposes of this Part, that is to say —
…
(g) noise emitted from premises so as to be prejudicial to health or a nuisance;
Section 80 of the Act sets out the procedure for dealing with statutory nuisance and enables a local authority to serve an abatement notice where the authority are satisfied that a statutory nuisance exists or is likely to occur or reoccur in the area of the authority. Following the failure of the Secretary of State to confirm the article 4 direction, abatement notices were in fact served on officials of a club which proposed to hold motocross events on the subject land during the 1975 season and an appeal heard by the magistrates’ court was rejected. Failure to comply with the abatement notices would have been an offence under section 80(4) and subject to a |page:4| fine under section 80(5). If the local authority had been of the opinion that proceedings under section 80(4) would have been inadequate, section 81(5) would have enabled the authority to introduce proceedings in the High Court to secure the cessation of the nuisance. The proceedings in the magistrates’ court were good evidence that the use of the subject land for motorcycling events caused a serious statutory nuisance and that the use could have been restrained by the courts.
Section 80(7) provided a possible defence to proceedings under section 80(4), where it could be shown that the best practicable means were used to prevent or counteract the effects of the nuisance. That defence was not however available in the case of noise nuisance unless the latter arose on industrial, trade or business premises. In his view, which was supported by the decision in the magistrates’ court, that defence had to be looked at from the point of view of the users of the land, not of the owner of the land. In the present case the use was recreational — the enjoyment of motocross; the claimant’s business was the letting of land.
As agricultural land the subject land was exempt from rating. Where, however, any land was used several times a year for events such as motor cycle racing, the land involved could become a rateable hereditament as in the case of Wimborne and Cranborne Rural District Council v East Dorset Assessment Committee [1940] 2 KB 420; the use of the subject land for motocross events could have resulted in a rateable assessment and if compensation was payable it should be reduced by the amount of any rate payable.
Mr Burton, a principal environmental health officer employed by North Dorset District Council said, that following notification of a proposal to hold a motor bike scramble event on the subject site on April 30 1995 and a number of complaints from residents in Iwerne Minster, he set up noise monitoring equipment in the garden of one of the properties in the village. The scrambling event took place some 550m from the village and because of the ‘bowl’ shape of the subject land the noise was reflected toward the village. He was of the opinion that the noise generated by the event was excessive and this was confirmed by the measurements from his equipment, which showed a noise increase which effectively trebled the existing noise level. Having listened to the event from one of the properties in the village, it was his opinion that this was the largest noise intrusion which he had heard during his professional career and was, in his view, wholly unacceptable.
He was satisfied that the noise level amounted to a statutory nuisance. As a consequence, notices were served under the provisions of section 80 of the Environmental Protection Act 1990 on the secretary and chairman of the Purbeck Motocross Club. An appeal was made against this notice and was dismissed by the magistrates. It was his opinion that if an event had taken place between May 23 1994 and November 22 1994, the council would have served an abatement notice prohibiting further events. If, despite the abatement notice, a further event had been held the council would have considered other remedies available such as obtaining an injunction under section 81(5) of the 1990 Act.
|page:5|
Decision
The claimant relies on section 107 of the Town and Country Planning Act 1990, the relevant parts of which state:
107.– (1) Subject to section 116, where planning permission is revoked or modified by an order under section 97, then if, on a claim made to the local planning authority within the prescribed time and in the prescribed manner, it is shown that a person interested in the land or in minerals in, on or under it —
(a) has incurred expenditure in carrying out work which is rendered abortive by the revocation or modification; or
(b) has otherwise sustained loss or damage which is directly attributable to the revocation or modification,
the local planning authority shall pay that person compensation in respect of that expenditure, loss or damage.
(2) For the purposes of this section, any expenditure incurred in the preparation of plans for the purposes of any work, or upon other similar matters preparatory to it, shall be taken to be included in the expenditure incurred in carrying out that work.
These compensation provisions were extended by section 108 of the Act to include cases, such as the present case, where planning permission granted by a development order was withdrawn. It is not in issue that following the article 4 direction the claimant followed the requirements of section 108 and that ultimately the Secretary of State declined to confirm the article 4 direction.
The claimant is therefore, prima facie, entitled to be compensated for any relevant losses. For the compensating authority however, it is argued that although they chose to proceed by way of an article 4 direction, the latter was only one of the available remedies which could have been adopted to prevent motorcycle events being held on the subject land and that although the Secretary of State failed to confirm the article 4 direction, the failure was of no consequence since r 5(4) of Part II of the Land Compensation Act 1961 precluded any entitlement to compensation in the present case, because the use of the subject land for motorcycle sports could have been restrained by a court. For support for the latter contention the authority relies on the decision by the magistrates’ court on January 17 1996 dismissing an appeal against abatement notices served by the authority in May 1995 in respect of motor sport events on the subject land.
I am by no means certain that r 5(4) of the Land Compensation Act 1961 has any relevance in the present case. R 5(4) refers to an increase in the value of land resulting from a use which could be restrained by any court. In the present case however, although section 117 of the 1990 Act brings r 4 of the 1961 Act into play for the purpose of assessing the amount of any depreciation in the value of the claimant’s interest in the land, I heard no expert evidence as to the effect on the capital value of the subject land for the use of motor sports during the relevant period and the claim is for losses arising from section 107(1) of the 1990 Act, ie loss of potential revenue and abortive expenditure. In any event, I am not satisfied that the |page:6| decision by the magistrates’ court dismissing the appeal against the abatement notices has the significance ascribed to it by the compensating authority. The abatement notices were served on the potential users of the subject site and not on the landowner, the claimant. The grounds of appeal were:
(i) that the abatement notice was not justified by section 80 of the Act;
(ii) that the authority had refused unreasonably to accept compliance with alternative requirements or that the requirements of the abatement notice were otherwise unreasonable in character or extent, or were unnecessary;
(iii) that the best practicable means were used to prevent or to counteract the effects of the nuisance;
(iv) that the abatement notice might lawfully have been served on some person in addition to the appellant, being the landowner Mr Bolton, and that it would be equitable for it to have been so served.
The claimant was aggrieved by the decision, but on April 12 1996 the magistrates refused an application by the latter to state a case for the High Court on the sole and somewhat surprising ground that the application was ‘frivolous’. It seems to me, bearing in mind that the Secretary of State in his decision declining to confirm the article 4 direction said that he was ‘not satisfied, on the evidence currently before him, that the protection afforded by virtue of an article 4 direction, had been fully demonstrated to be necessary nor that other avenues for resolution of the problems had been fully explored’; that the article 4 direction had been served without any warning and without any prior consultation; and that the claimant had not been served with an abatement notice: it is arguable that grounds (ii) and (iv) should not have been dismissed out of hand as being ‘frivolous’. I think it is possible that the decision would not have been upheld in the event of further proceedings and I am not, therefore, convinced that it can be regarded as a matter of certainty that, even in the absence of the article 4 direction, the use of the subject land for motor sport could have been restrained with the immediacy contended for by the respondent authority.
In the present case the compensating authority, which must be presumed to have been aware of the various courses open to them, chose to make an article 4 direction. The consequences were that in order to qualify for compensation under section 108 of the 1990 Act the claimant had to apply for planning consent and could not submit a claim for compensation until the planning application had been refused and the Secretary of State had declined to confirm the article 4 direction; effectively as a consequence of the article 4 direction the claimant was precluded from holding any events on the land between May 23 1994 and November 21 1994. Since no events could be held the question of whether or not the proposed events could have been prevented by other legislation is a matter of conjecture, not certainty. In the circumstances, I consider that the claimant is entitled to the benefits of any doubts which may exist and I have reached the conclusion that he is entitled to be compensated for any loss which he incurred during the period covered by the article 4 direction.
|page:7|
The claim was for the loss of revenue from 14 events, for improvement to the access to the land, and for surveyor’s fees. No direct evidence was forthcoming for the booking of 14 events and my understanding of the number of events which were not in dispute was six, for one of which the charge would have been £175, the other five being at £300 each. In the absence of confirmation of other bookings, I settle the compensation for loss of events at £1,675. Although the figure for improvements to the access, £300, appears to be arbitrary with labour having been provided by the claimant, since the cost was unlikely to have been incurred other than for the purpose of the motor sport events, I consider that it should be allowed in full. As the surveyor’s fee, £235, was wholly incurred as a consequence of the article 4 direction it is, in my view, wholly recoverable.
It was suggested on behalf of the compensating authority that following the decision in Wimborne and Cranborne the use of the land for motor sport events could have resulted in the loss of the exemption from rating and that compensation for loss of income should be reduced by the notional amount of rate payable. No expert evidence was forthcoming however of the amount of any potential rateable value or as to the policy of the Inland Revenue Valuation Office or the rating authority in the area in which the subject land is situated regarding the rating of occasional uses such as clay pigeon shooting or motor sports. In the present case both the incidence and the amount of any rateable charge is wholly conjectural and in view of the amount of compensation involved I see no ground for making any reduction.
For the compensating authority it was argued that the date on which the compensation should be assessed was the date on which the article 4 direction took effect, ie May 23 1944. The latter date might have been appropriate if the claim had risen under section 107 specifically in respect of a revocation or modification of planning permission by an order under section 97 of the 1990 Act, but in the present case, which arises as a consequence of the provisions of section 108, since the losses could not have been quantified until the date on which the Secretary of State refused to confirm the article 4 direction, ie November 21 1994, I consider that the latter is the appropriate date and I direct accordingly.
There remains the issue regarding the application of section 80(7) of the Environmental Protection Act 1990. I heard no argument from the claimant, although it appeared indirectly from the certificate of refusal to state a case by the magistrates in respect of the decision made by them on January 17 1990, that the appellant had made reference to section 80(7) during the appeal hearing. Mr Morgan argued that the test of whether or not a nuisance arose on business premises had to be approached from the viewpoint of the user, not the owner, and that in the present case the land was being used by a club for recreational or pleasure purposes not for business purposes. I have not found it necessary to consider the effects of section 80(7) in arriving at my decision that the claimant was entitled to compensation, but had I done so I would have concluded that section 80(7) was of no assistance to the claimant as I do not see that the subject land can be regarded as industrial, trade or business premises.
|page:8|
I therefore direct that the compensation payable is as follows:
|
1. |
Loss of revenue: |
£ |
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|
1 event at |
£175 |
175 |
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|
5 events at |
£300 |
1,500 |
||
|
Total |
1,675 |
|||
|
2. |
Access works |
300 |
||
|
3. |
Surveyor’s fees |
235 |
||
|
Total |
£2,210 |
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This decision determines the substantive issues raised between the parties and the tribunal’s award is final. The parties are invited to make such submissions as they are advised as to the costs of the hearing and a letter accompanies this decision as to the procedure for submissions in writing. The tribunal will, in due course, incorporate an order as to costs in an addendum to this decision. Rights of appeal under section 3(4) of the Lands Tribunal Act 1949 and Rules of the Supreme Court Ord 61 will not accrue until the decision has been thus completed, ie from the date of the addendum.
Costs addendum
The parties were invited to make submissions as to costs and a submission was received from the claimant. Having opened a sealed offer lodged by the compensating authority I find that the offer is less than my award, I therefore order that the compensating authority shall pay the costs of the claimant incidental to the reference, such costs, if not agreed, to be taxed by the registrar of the Lands Tribunal on County Court Scale 1.
The claimant was entitled to compensation.
