Issue estoppel – Abuse of process – Acquisition of land for highway work required by terms of planning agreement – Subsequent agreement to refer valuation of land to Lands Tribunal – Court of Appeal remitting part of award to tribunal for closer consideration of conditions imposed by planning agreement – Tribunal making fresh award – Appellant claiming that certain depreciatory factors not taken into account – Appeal dismissed
Between 1971 and 1974 the appellant (Pye) purchased land (the Pye land) forming the greater part of an area identified for development by the Bristol East Fringe study of 1970, and applied for planning permission to develop it. The then highway authority agreed to provide a new link road crossing part of the land. Development south of the link road (the industrial land) was to be for industrial use, and north of the road was set aside for residential use (the residential land). In July 1979 an agreement under section 52 of the Town and Country Planning Act 1971 was made between Kingswood Borough Council (Kingswood), Avon County Council (Avon) and Pye, subject to planning permission. Permission was granted in July 1979, with conditions. Two of those conditions, reflecting clauses 9 and 15 respectively of the section 52 agreement, stated that, until completion of the link road: (i) no more than 40% of the industrial development should be brought into use (the industrial condition); and (ii) development of the residential land should not be commenced (the residential condition).
By the beginning of 1988, the link road was complete, apart from a short, unbuilt section crossing a 276m² area of land at North Common, Warmley (the reference land), which was owned by Kingswood. In January 1988 Kingswood entered into a contract to sell the reference land to Avon. The agreement provided, inter alia, that: (i) it was made to enable the development contemplated by the section 52 agreement to be carried out; and (ii) the purchase price was to be determined by a reference to the Lands Tribunal (the tribunal), in which Pye would be permitted to act on behalf of Avon and it was to be assumed that Avon had made an unopposed compulsory purchase order for the acquisition of the reference land for highway purposes.
The tribunal valued the reference land at £756,500, as against the £650 contended for by Pye, the enhancing factor being the fact that the reference land was the key that unlocked the full development of the Pye land. In assessing that factor, the tribunal took into account the possible depreciatory effect of the chance of a purchaser being minded to make a fresh planning application in order to circumvent the conditions imposed by the section 52 agreement.
On an appeal by Pye in 1998 ([1998] 2 EGLR 159), it was held that the underlying approach of the tribunal was correct. However, a fresh determination was ordered, requiring a reassessment of the depreciatory effect in the light of the differing limitations attached to the industrial condition and the residential condition respectively. Pursuant to that order, the tribunal made a revised award of £428,000.
Pye appealed for a second time, contending, inter alia, that the tribunal had: (i) wrongfully disregarded certain facts that pointed away from any ransom value for the residential land; and (ii) failed to rework the development value of the industrial land in the light of its reconsideration of the section 52 agreement.
Held: The appeal was dismissed.
1. To entertain the first ground of appeal would be an abuse of the process of the court. Even if the case were not one of issue estoppel, the question had been sufficiently before the tribunal at its first hearing to fall within the rule against raising in subsequent proceedings matters that could, and therefore should, have been litigated in earlier proceedings: see Henderson v Henderson (1843) 3 Hare 100, as considered in Yat Tun Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 (PC) and Barrow v Bankside Members Agency Ltd [1996] 1 WLR 257. It was accordingly immaterial that, because of an oversight or otherwise, the point had not been taken on the first appeal: dicta of Auld LJ in Bradford & Bingley Building Society v Seddon [1999] 1 WLR 1482 distinguished.
2. The second ground was unsustainable because the Court of Appeal had remitted the case solely upon the basis of the section 52 agreement. The tribunal was not required to redetermine the whole question of what sum should be paid on the deemed compulsory acquisition.
* Editor’s note: Case so entitled in order to avoid confusion with the case of the same name summarised at [2000] EGCS 116, where the challenge was to the validity of the arbitration agreement itself.
Robin Purchas QC and John Harvey (instructed by Burroughs Day, of Bristol) appeared for the appellant; Terence Etherton QC and Jonathan Seitler (instructed by Sharpe Pritchard) appeared for the respondents.
Alan Cooklin, barrister
