Compulsory purchase — Compensation — Value of land taken, severance and injurious affection and accommodation works — Appeal by case stated from decision of Lands Tribunal — Whether decision of tribunal erroneous in point of law — Comments by Glidewell LJ on RSC Ord 61, r1(4) and generally on procedure by case stated — ‘It really only works well if the parties can agree beforehand the nature of the questions which arise from the tribunal’s decision and state them specifically so that this court may know clearly what it is being asked to deal with’
appeals, which both raised the same questions, related to parts of two back gardens
acquired from adjoining terraced houses for the construction of a service route
round a car park and of part of a decked car park — There were wide differences
in values put forward by the expert witnesses before the tribunal on behalf of
the claimants and the local authority respectively, although both valuers had
agreed that the assumptions for the purposes of assessment were those derived
from section 16(4) and (5) of the Land Compensation Act 1961 — The valuers had
‘to enter into that mythical world which is sometimes called the ‘no-scheme
world”
land taken
here was: ‘– for which, if any, of the range of uses contained in the action
area plan might planning permission reasonably have been expected to be granted
in respect of either of the pieces of land being compulsorily acquired?’ — The
tribunal accepted the basis of valuation put forward by the local authority’s
expert — On appeal the claimants criticised the tribunal’s decision on the
ground of lack of proper, adequate and intelligible reasons, citing Re Poyser
and Mills’ Arbitration and Norton Tool Co Ltd v Tewson — The claimants also
complained that some passages in the tribunal’s decision reversed the burden of
proof — Both criticisms were rejected by the Court of Appeal — The tribunal did
give proper reasons and applied the correct test
injurious affection
had agreed that the distinction between compensation for severance and
compensation for injurious affection was an artificial one and that the matter
was best approached by a ‘before and after’ valuation — The application of this
agreed method, however, produced different figures from the two valuers — Here
again the tribunal preferred the valuation evidence of the local authority’s
witness — In the court’s view no point of law arose; it was simply a question
of valuation judgment on which there was no right of appeal
disagreement about the amount paid for accommodation works, but there had been
minor disputes about timber, fencing and double glazing — The tribunal rejected
a claim for the value of timber in trees felled as this was already covered by
the claim for injurious affection — A claim for temporary fencing was held to
be covered by the agreed amounts for the accommodation works — The tribunal
also rejected a claim for the cost of installing double glazing — The court
held that the tribunal had made the correct approach in these matters
the tribunal had come to the correct conclusions — Appeal dismissed
The following
cases are referred to in this report.
Horn v Sunderland Corporation [1941] 2
KB 26; [1941] 1 All ER 480, CA
Norton Tool Co Ltd v Tewson [1973] 1 WLR
45; [1973] 1 All ER 183; [1972] ICR 501
Poyser and Mills’ Arbitration, In re [1964] 2 QB 467; [1963] 2 WLR
1309; [1963] 1 All ER 612; sub nom Poyser v Mills (1963) 79 LQR
344
These were
appeals by case stated by R A Vine (Engineering) Ltd and Anthony Sean Vine
against a decision of the Lands Tribunal (Mr W H Rees FRICS) in determining
compensation payable to the claimants in respect of two small areas of land.
The plots formed part of the back gardens of the two adjoining houses in
Havant, 16 and 17 Homewell. The disputed compensation arose from compulsory
acquisition by Havant Borough Council, the respondents to this appeal.
Dr P McCormick
(instructed by Miss C S Conwell, of Rowland’s Castle, Hants) appeared on behalf
of the appellants; W H Webster (instructed by the solicitor to Havant Borough
Council) represented the respondents.
Giving the
first judgment at the invitation of Sir Stephen Brown P, GLIDEWELL LJ said:
These are two appeals by way of case stated against a decision of the Lands
Tribunal (the member being Mr W H Rees FRICS) given on December 11 1987 in
determining compensation payable on the compulsory purchase of two areas of
land.
Those plots of
land form parts of the back gardens of two adjoining terraced houses in the
middle of Havant in Hampshire. The areas purchased from behind the house 16
Homewell was some 94 m2 out of the total plot of 184 m2,
and behind 17 Homewell 115 m2 out of a total of some 225 m2.
The houses are
about 100 years old. No 16 is owned by R A Vine (Engineering) Ltd, a company in
which the claimant, Mr Vine, has an interest. No 17, the end of the terrace, is
owned and occupied by Mr Vine himself.
The main basis
of compensation was agreed between the parties under three heads: first,
compensation for the land taken; second, compensation for severance and
injurious affection; and, third, compensation for what are called accommodation
works, that is to say works necessary to fence off and screen off the land
taken from the land retained (the sums for these works were agreed between the
parties respectively at £1,200 for no 16 and £2,460 in respect of no 17).
In addition,
Mr Vine claimed compensation under three other heads, the figures which he
claimed being the same in relation to each of the properties. The fourth head
was for the value of timber taken from some trees which were cut down from the
rear boundaries. The
each case. Finally, for double glazing he claimed £1,563 in each case. The
council dispute that he has any entitlement under these last three heads.
The purchase
was under the Borough of Havant (West Street Car-Park, Havant) Compulsory
Purchase Order 1981. That order was made by the borough council under section
112(1) of the Town and Country Planning Act 1971 on May 29 1981 for the purpose
of the construction of a service route around the West Street Car-Park (which
lies to the west and north of the properties) and of part of a decked car park.
The order was confirmed by the Secretary of State for the Environment on
September 30 1981. Notices to treat and notices of entry were served on January
15 1982. The council entered into possession on March 1 1982. There was a
dispute which continued for over four years as to the amount of compensation.
It not being resolved, it was finally referred to the Lands Tribunal by the
borough council on June 6 1986.
I want to say
something about the nature of the appeal by way of case stated. Section 3(4) of
the Lands Tribunal Act 1949 provides:
A decision of the Lands Tribunal shall be
final: Provided that any person aggrieved by the decision as being erroneous in
point of law may, within such time as may be limited by the rules of court,
require the tribunal to state and sign a case for the decision of the court . .
.
It should be
noted that the right of appeal arises only if the decision is said to be
‘erroneous in point of law’.
The matter is
governed by Ord 61, r1 of the Rules of the Supreme Court. Subrule (4) provides:
Where the decision of the Lands Tribunal
in respect of which a case is stated states all the relevant facts found by the
Tribunal and indicates the questions of law to be decided by the Court of
Appeal, a copy of the decision signed by the person who presided at the hearing
shall be annexed to the case, and the facts so found and the questions of law
to be decided shall be sufficiently stated in the case by referring to the
statement thereof in the decision.
I will have to come back to that in a
moment.
The case
stated says in para 4:
The questions upon which the decision of
the Honourable Court is desired being indicated in my decision, this statement
of case is in the form permitted by the Rules of the Supreme Court, Order 61,
Rule 1(4) and the practice direction dated July 27 1956 ([1956] 3 All ER 117).
Unfortunately
the questions of law are not indicated in the decision of the Lands Tribunal
which is appended to the case stated. The reason for that may well be that the
applicant’s request to the Lands Tribunal to state a case is in a form which
requests him to state various criteria and reasons and the evidence relied on
(matters of that sort) and then poses questions, but does not, so to speak,
specifically define the precise questions upon which the decision of this court
is desired.
The procedure
for appealing from the Lands Tribunal by way of case stated has from time to
time caused problems. In my experience it really only works well if the parties
can agree beforehand the nature of the questions which arise from the
tribunal’s decision and state them specifically so that this court may know
clearly what it is being asked to deal with. It was not until we heard counsel
yesterday that the questions of law which it was said arose became clearly
established. However, it is now reasonably clear what the questions are and I
therefore propose to deal with those which arise.
Before I do,
it is necessary also to say something about the manner in which the reference
proceeded before the Lands Tribunal. Mr Vine, as he was entitled to do, of
course, appeared both for himself and for his company, and he called as a
witness Mr David S Hughes FRICS. The borough council was represented by Mr
Webster. He called as a witness Mr P Legood FRICS. Both valuers submitted
written reports, including their valuations in respect of each property. These,
we are told, were taken as read but incorporated into the evidence before the
learned member. The witnesses also gave oral evidence and were cross-examined
on their evidence.
It is apparent
from the reports of both the valuers, which are before us, what the planning
position is which relates to the two areas of land. From now on I propose, save
where it is necessary to differentiate between the values, to treat this as one
appeal because the same questions arise on both.
The land falls
within the Havant Town Centre Action Area Plan, which is an approved local plan
within the meaning of the Town and Country Planning Act 1971. The uses for
which that plan provides include residential use, shops, offices, car parks and
a range of other town centre uses. Both properties (including both the houses and
their gardens) also fall within an action area and within a conservation area
for which policies are set out in the written statement of the plan.
I now come to
the various heads under which the claim was made, dealing first, because it is
the most important of the matters, with the value of the land taken. The
competing valuations were as follows. It was agreed that no 16 had an existing
value of £22,000, including the whole of its garden before the value was taken,
and no 17, £23,000. The claimant claimed that the value of the land of no 16
taken was £3,196 and of no 17, £3,500. The council’s figures were £500 and £600
respectively. Those figures were supported by the respective valuers.
In their
valuations both valuers agreed that the assumptions as to planning permission
which must be made for the purposes of assessment of compensation were those
derived from section 16(4) and (5) of the Land Compensation Act 1961. Section
16(4), so far as is relevant, provides:
If the relevant land or any part thereof
is land subject to comprehensive development, it shall be assumed that planning
permission would be granted, in respect of the relevant land or that part
thereof, as the case may be, for any development for the purposes of a use of
the relevant land or that part thereof falling within the planned range of uses
. . . being development for which, in the circumstances specified in the next
following subsection, planning permission might reasonably have been expected
to be granted in respect of the relevant land or that part thereof, as the case
may be.
Subsection (5)
provides:
The circumstances referred to in the last
preceding subsection are those which would have existed if —
(a)
the area in question had not been defined in the current development
plan as an area of comprehensive development, and no particulars or proposals
relating to any land in that area had been comprised in the plan, . . . and in
that subsection ‘the planned range of uses’ means the range of uses which, in
accordance with the particulars and proposals comprised in the current
development plan in relation to the area in question, are indicated in the plan
as proposed uses of land in that area.
In other
words, the valuer has to enter into that mythical world which is sometimes
called the ‘no-scheme world’. He has to assume that no development of the kind
for which the compulsory purchase order is taking place is going to take place,
but that planning permission would be granted for such of the uses as are
provided for in the plan for comprehensive development as, going back to the
wording of subsection (4), ‘might reasonably have been expected to be granted
in respect of the relevant land’.
The phrase
‘the relevant land’ means, by virtue of section 39 of the 1961 Act, the land
being acquired. The phrase ‘comprehensive development’ dates back to the Town
and Country Planning Act 1962, and before that the 1947 Act, but it is now to
be read as meaning what under the 1971 Act is an action area. The route by
which that process takes place is section 291 of and Schedule 23 to the Town
and Country Planning Act 1971.
The question
is — for which, if any, of the range of uses contained in the action area plan
might planning permission reasonably have been expected to be granted in
respect of either of the pieces of land being compulsorily acquired? Mr Hughes suggested in his evidence that
planning permission for office development would reasonably have been expected
to be granted, and on the basis of that he valued the land at £30 per m2.
Mr Legood pointed
out in reply that there was no vehicular access to the subject land. The only
access to the back gardens was a pedestrian access alongside one of the houses
or through the houses themselves. Admittedly the bottoms of the gardens adjoin
the existing car park, but that is council-owned land and it could not be
assumed that the council would be willing to give access over their own land to
facilitate development on the land being taken. That, of course, would be a
disadvantage to them. Therefore, said Mr Legood, there was no possibility of
office development or indeed any other similar building development or of
planning permission for such development on the relevant land. This land is to
be valued as part of a landlocked garden for which an appropriate price would
be £5 per m2. That is how he arrived at his figures, rounding them
up very slightly.
Mr Hughes replied
to that that while at the moment there is no vehicular access to the land,
nevertheless a redevelopment could be carried out of the two houses themselves.
If planning permission were granted for a change of use of the houses to use as
offices, then there could also be a reconstruction which would permit a
vehicular access to be driven through what is effectively the ground floor of
one of the houses. That would give vehicular access to the rear of the land and
that in turn would enable a new office block to be built upon the
change of use of no 17 to use as offices. It seems that that permission was
never utilised, so formally it has lapsed by dint of the five-year time-limit,
but nevertheless Mr Hughes was reliant upon it as an indication of the planning
permission that might have been expected for the houses.
Mr Legood
replied to that that it was most unlikely that such permission would now be
granted because, as I have said, the houses fall in the conservation area and
change of use to use as offices and, even more important, the driving of an
access road through the ground floor of one of the houses would be contrary to
the general policies relating to the conservation area.
The member of
the Lands Tribunal had to decide whether planning permission as suggested by Mr
Hughes was reasonably likely to have been granted if the compulsory purchaser’s
scheme were not going ahead. As to that, he said:
Mr Hughes priced this
— that is the value for the land taken —
in both cases at a figure reflecting the
development value: he considered that the claimant was assumed to have planning
permission for any development falling within the range of uses allowed in the
Action Area. Mr Legood valued the land taken at ‘garden value’ and his figure
on that basis was not disputed by Mr Hughes who sought to support £30 per
square metre by reference to the amount paid by the acquiring authority for
land at the junction of Park Road North and West Street, Havant which was
acquired for purposes of public open space.
I heard evidence as to the town planning
position but I am far from convinced that either of these two small pieces of
land could be developed on their own although some comprehensive redevelopment
of both houses together (which was suggested by Mr Vine in cross-examination of
Mr Legood) is perhaps closer to reality although by no means certain. I
therefore reject Mr Hughes’ basis and accept Mr Legood’s figures.
Before us Dr
McCormick, for Mr Vine and his company, submits a criticism of the decision of
the Lands Tribunal on two main points. First, he reminds us that rule 54 of the
Lands Tribunal Rules 1975, which deals with the decision of the tribunal,
begins in subrule (1) with the words: ‘The decision of the Tribunal on an
appeal, reference or application shall be given in writing, together with a
statement of the Tribunal’s reasons for its decision . . .’
Dr McCormick
referred us to the well-known judgment of Megaw J (as he then was) in Re Poyser
and Mills’ Arbitration [1964] 2 QB 467 in which at the bottom of p 477 in a
case in which an arbitration was governed by section 12 of the Tribunals and
Inquiries Act 1958, which provides for the giving of reasons in terms very
similar to those of the rule I have just read, Megaw J said:
The whole purpose of section 12 of the
Tribunals and Inquiries Act 1958 was to enable persons whose property, or whose
interests, were being affected by some administrative decision or some
statutory arbitration to know, if the decision was against them, what the
reasons for it were. Up to then, people’s property and other interests might be
gravely affected by a decision of some official. The decision might be
perfectly right, but the person against whom it was made was left with the real
grievance that he was not told why the decision had been made. The purpose of
section 12 was to remedy that, and to remedy it in relation to arbitrations
under this Act. Parliament provided that reasons shall be given, and in my view
that must be read as meaning that proper, adequate reasons must be given. The
reasons that are set out must be reasons which will not only be intelligible,
but which deal with the substantial points that have been raised. In my view,
it is right to consider that statutory provision as being a provision as to the
form which the arbitration award shall take.
Dr McCormick
also referred us to a more recent decision, that of Sir John Donaldson (as he
then was) when he was president of the then National Industrial Relations Court
in Norton Tool Co Ltd v Tewson [1973] 1 All ER 183. His lordship
said at p 187E:
If an appellant is to succeed, he must
satisfy this court that the tribunal has erred in principle. But it is a
corollary of the discretion conferred on the tribunals that it is their duty to
set out their reasoning in sufficient detail to show the principles on which
they have proceeded. A similar obligation lies on this court, when sitting as a
court of first instance from which appeal lies to the Court of Appeal on
questions of law alone. Were it otherwise, the parties would in effect be
deprived of their right of appeal on questions of law. No great elaboration is
required and the task should not constitute a burden. Indeed, the need to give
reasons may well assist in the process of properly making the discretionary
assessment of damages.
Strictly, of
course, neither of those dicta is binding on this court, but Megaw J’s
statement of principle has been followed time and again, both at first instance
and in this court, and is accepted wisdom. In my view, Dr McCormick is right to
submit that both the passages to which I have just referred apply in relation
to decisions of the Lands Tribunal, and so the question of law that arises
under that head is — has the tribunal given proper, adequate and intelligible
reasons?
Dr McCormick’s
second point is that in the passage I have read the learned member used the
phrases ‘I am far from convinced that either of these two small pieces of land
could be developed’ and ‘some comprehensive redevelopment of both houses . . .
is perhaps closer to reality although by no means certain’. ‘By no means
certain’ and ‘far from convinced’, says Dr McCormick, are not the proper tests.
The proper test is that in subsection (4), namely what planning permission
might reasonably have been expected to be granted. The test adopted by the
learned member, he submits, reverses the burden of proof. I think ‘burden of
proof’ is not the right way to put it, but it reverses the way in which the
member appeared to be approaching the question that he had to answer.
At first,
swayed no doubt by Dr McCormick’s advocacy, because his reasoning was forceful,
I was inclined to think that there was a great deal in those submissions. I am
still of the view that the award should have set out the member’s reasoning
more clearly. I have sought to set out in this judgment the reasoning of the
respective valuers in my own words rather than theirs and something of that
sort ought to have been included in the Lands Tribunal’s decision. But, of
course, both the parties knew what the issues were. It is quite clear when one
comes to read the written reports of the two valuers that the points which I
have elicited were those which they were considering and discussing. It is quite
clear from their references which they agreed, section 16(4) and section 16(5),
that they were relying upon the correct test and they were putting the correct
test before the Lands Tribunal.
In my view,
for parties who knew what the issues were this decision is sufficiently clear
and it is to be inferred that the tribunal did not intend to apply any
different test. Putting it another way, there was ample evidence to support Mr
Legood’s proposition that planning permission for the redevelopment proposed by
Mr Hughes was most unlikely to be granted in a conservation area. That
essentially was the point in the end upon which the decision of the Lands
Tribunal turned. It was clear that the tribunal agreed with Mr Legood. Once
that point was decided, the valuation structure erected by Mr Hughes, I am
afraid, tumbled to the ground. His hypothesis ceased to be a valid one. After
some hesitation, I would answer both the questions I have posed with the answer
‘Yes’. The tribunal did give proper, adequate and intelligible reasons in this
case and the member applied the correct test.
I turn to the
second basis of compensation for what is called injurious affection and
severance. The phrase ‘injurious affection’ is not one that is to be found in
common usage these days. It dates back to compensation under the Lands Clauses
(Consolidation) Act 1845. The propositions are these, which have been accepted
ever since that date, if not indeed before. If part only of a landowner’s land
is compulsorily acquired, he may be entitled, in addition to compensation for
the value of the land taken, to further compensation under two heads. These are
now to be found set out in section 7 of the Compulsory Purchase Act 1965.
First, if the value of the land retained is less when severed from the land
taken than it would have been as part of the whole before the severance, then
the diminution of its value can be claimed as compensation for severance.
Second, or as an alternative, if the value of the land retained is lessened by
reason of the carrying out by the acquiring authority of the works it proposes
on the land taken, or the use of those works after they have been completed,
then the diminution in value can be claimed as compensation for injurious
affection. To take a common example of the second matter, if a landowner loses
the bottom of his garden in order that a motorway may be constructed across it,
obviously both the work of constructing the motorway and the noise of traffic
thereafter will substantially reduce the value of his house. If his land were
taken but no motorway were constructed, no doubt the value of the house would
still be substantial. It may be very considerably reduced by the motorway, and
the reduction in value is the subject of compensation for injurious affection.
The claimants
claim compensation under both these heads, and both valuers agreed that
compensation was payable under both heads, but they disagreed as to the
figures. However, the tribunal’s decision records:
It was agreed before me that such a
distinction
— that is to say the distinction between
compensation for severance and compensation for injurious affection —
was artificial and the matter was best
approached by a ‘before and after’ valuation.
That means
that the valuers agreed that the proper approach was to start with the original
value of each of the entire plots, including its dwelling-house before
severance, to deduct the value of the land taken, then to assess the value of
the house with its remaining land on the assumption that the work of the scheme
had been carried out and the car park and the access road were in use, and if,
as was agreed by both valuers would be the case, the remaining value of the
land retained and the house would be less than it would have been as part of
the whole if there had been no severance and if there had been no scheme, then
the difference between the diminished value and the balance arrived at is the
total compensation for both severance and disturbance without distinction
between the two.
Dr McCormick
was at first inclined to argue that this approach was wrong, but later he came
to accept that it was both logical and correct. Following that approach Mr
Legood’s valuation on no 16 looked like this. The original value of the house
with its land but before severance (agreed), £22,000, less the value of the
land taken, £500, making a sum of £21,500. The value of the house and remaining
land on the assumption that the scheme works had been carried out and were in
use, £19,500. The difference between that and £21,500 is £2,000. That was the
compensation for both severance and injurious affection.
Mr Hughes
valued on the same basis but with very different figures. His after-scheme
value was £15,000, not £19,500. In his decision on this point, the member of
the Lands Tribunal said:
As I pointed
out to Mr Hughes during the hearing, the basis which he had adopted for the
value of the land taken was inconsistent with the basis he had adopted for
injurious affection. Had the parcels of land taken been sold in the open market
for development purposes, no purchaser would have paid more than their market
value because the remaining properties were depreciated in value (see Horn
v Sunderland Corporation [1941] 2 KB 26; although that decision related
to disturbance, the principle is the same). I have already rejected the basis
of Mr Hughes’ valuation for the land taken. It is agreed between the parties
therefore that compensation should be paid for injurious affection: only the
amount is in dispute. I heard evidence concerning the sale of houses in Havant
and on a nearby estate and, illustrated by my view, I have no hesitation in
preferring Mr Legood’s figures to those spoken to by Mr Hughes. I also heard
evidence concerning the increases in the value of houses generally and in
Havant in particular but this is of no assistance to me.
Dr McCormick
argued that the point made by the member of the Lands Tribunal there was that
that was not correct. I agree that if Mr Hughes in his valuation included an
element of double counting, that is to say, to claim compensation for the land
taken on the basis that it would be developed and then to claim compensation
for the land retained on the basis that there was not to be any development on
the land taken, then of course the principle in Horn v Sunderland
Corporation would apply, in my view, albeit this is not a disturbance case.
However, the
really important point — the real difference between the parties here — was not
on that matter of principle but simply on the figures. If Mr Hughes were
correct in his view that in the after-scheme world the value of the remaining
land and property of no 16 would only be £15,000 then, in my view, the figure
for which he contended as being the amount of injurious affection was properly
established, and so the question is a pure question of valuation judgment:
which was the correct figure for the value of each property in the after-scheme
world? The learned member came down
clearly in favour of Mr Legood’s figure. (I have mentioned his figure for no
16, and his figure for no 17 was £20,400 as being the value in the after-scheme
world). He therefore dealt with the matter, quite apart from looking at the
point based upon Horn v Sunderland Corporation, as a matter of
preferring the valuation evidence of Mr Legood to that of Mr Hughes.
He was
entitled to say that no point of law arises and, in my view, the determination
of this issue in the end does not raise a point of law at all. It is simply a
question of valuation judgment upon which there is no right of appeal to this
court.
Those are the
more important issues between the parties. I can deal briefly with the
remaining issues.
I have already
said that there is no disagreement as to the amount to be paid for
accommodation works.
The point
about the timber is that there were trees at the bottom of both of the gardens
which were felled by the acquiring authority. They had to be felled, I suppose,
in order to construct the road. Mr Vine, without using any evidence to support
it, claimed £500 as the value of the trees in the gardens, that is to say their
value as timber trees. The member said:
to claim the value of the timber in these
trees was inconsistent with the claim for injurious affection because, had the
owners themselves felled the trees to realise the value of the timber in them,
they would have depreciated the value of the freehold interest. I therefore
reject this item of claim as being covered by the claim for injurious
affection.
In my view, that proposition is correct
in law.
Then there is
the matter of the temporary fence. Mr Vine had erected a 6 ft timber fence on
the new boundary line. He claimed £250 in each case for this. There was, according
to the learned member, no evidence to support that, but the member said that it
was also already covered by the agreed amounts for the accommodation works,
‘the owners, once having received those sums, being free to do as they wish
with the money. I therefore reject this item of claim’. The question is: was
that proposition correct? It is merely a
matter of law and fact, and the answer can only be ‘Yes’.
Finally, Mr
Vine submitted that it would be necessary to double-glaze the remaining
buildings as far as the rear windows were concerned. He put in figures for the
cost of doing that. The member of the Lands Tribunal said:
I reject this item of claim on two
grounds: first it would seem to me that the owners would get value for money if
they installed double-glazing: thus there would be no loss. Second, it was not
made clear that the ‘after’ values of £19,500 and £20,400 which I have
determined reflected the advantage of double-glazing.
In other
words, what he is saying is that if those values are of the houses without
double-glazing, then since compensation is based upon the difference between
those values and the value in the no-scheme world, compensation is given which
includes, in effect, the cost of double-glazing.
In my view,
that is an approach which the tribunal was entitled to make. Indeed, for
myself, I very much doubt whether in circumstances such as this the cost of
double-glazing is properly a head of compensation at all unless in some way it
can be construed as being accommodation works. I take the view that the
necessity of double-glazing is properly to be dealt with, or the impact of
noise upon the property is properly to be dealt with, by way of the
compensation for injurious affection. That is what the tribunal decided,
correctly in my view.
It follows,
therefore, that on such questions of law as do arise — and I have sought to
elicit them in this judgment — I conclude that the tribunal came to a correct
decision. I would therefore dismiss the appeal.
THE PRESIDENT
and NICHOLLS LJ agreed and did not add anything.
The appeal was dismissed with costs.
