Claim under s 127 of Town and Country Planning Act 1971 for compensation for interruption of right of way over access lane to farm and bungalow at Evesham — Access a county council-owned unmade private road with single pot-holed carriageway — Claimants had rights of way in fee simple over lane and also benefit of agreement whereby county council agreed to repair, maintain and cleanse it — Lane severed by new road constructed by compensating authority and alternative access provided by tarmacadamed road leading from one side of lane to point further along new road, giving longer distances to schools and for shopping — At valuation date high-density housing estates under construction along both sides of lane — Claims for loss of value of farm and bungalow in sums of £11,600 and £3,250 respectively — Factors alleged to deter prospective purchaser included relative inconvenience of new access and risk of trespass and vandalism — DV considered before and after values to be equal and no loss attributable to interference and tribunal accepts his evidence — Even if traffic problems could be taken into account under ‘McCarthy Rules’ (contrary to compensating authority’s view), tribunal not persuaded that new route, whether by reason of traffic problems or otherwise, less convenient than old — Also tribunal not satisfied that willing purchaser in open market would fear that acts of trespass or vandalism would be generated by new road — If such acts had occurred (and there was no evidence that they had) it would be reasonable to blame encroachment of housing estates rather than new road — Nil compensation
The following cases are referred to in this report.
Caledonian Railway Co v Walker’s Trustees (1882) 7 App Cas 259
Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243; 31 LT 182, HL
Joanne Moss (instructed by Salusbury & Co, of Leicester) appeared for the claimants; Robin Campbell (instructed by the solicitor of Wychavon District Council) for the acquiring authority.
Giving his decision, MR WELLINGS said: This is a reference under section 127 of the Town and Country Planning Act 1971 for the determination of the compensation (if any) to which the claimants are entitled for interruption by the Wychavon District Council of their right of way over Four Pools Lane, Evesham, Hereford and Worcester, to and from Crab Farm and Four Pools Road, Evesham.
The notice of reference contains two claims, the one by Bernard Brian Ward and Annie Elizabeth Ward, his wife, the owners of the freehold of Crab Farm, a farm of 174.69 acres with farmhouse and other buildings; and the other by his mother, Mrs Doris Ward, who is the owner of the freehold of a bungalow and adjoining land of 15.316 acres which are situate in a central position at the northern extremity of the farm, a short distance to the north of the farm buildings.
Four Pools Lane is a private road owned by the county council and formerly gave access via Four Pools Road, Durcott Road and Coopers Lane to Waterside and the centre of Evesham in a more or less direct manner, the route along Four Pools Lane and Four Pools Road having been generally from south to north. The length of Four Pools Lane was, before the interruption, 1,030 yds. At its southern end it joined a drive within the farm leading to the bungalow and the farm buildings. At all material times Four Pools Lane was a typical farm track, with a single carriageway between high hedges, not made up, rough, stony, pot-holed and muddy after rain but adequate as a means of access to a farm. At all material times the drive within the farm was in a condition similar to that of Four Pools Lane but, since the date of the interruption, has been provided with a concrete surface.
The claimants had the benefit of rights of way in fee simple over Four Pools Lane for all purposes. The farm and the bungalow and their respective land were conveyed to their respective current owners on October 2 1975. The 15.316 acres adjoining the bungalow are arable land farmed rent-free together with the 174.69 acres by Mr and Mrs Bernard Ward. The farm is a mixed stock and arable farm. Mr and Mrs Bernard Ward also farm other land as tenants of the county council, but that land is not the subject of any claim.
The claimants had the benefit of an agreement made March 11 1966 between the former Worcestershire County Council and their predecessors in title whereby that council agreed to repair, maintain and cleanse Four Pools Lane and maintain the same in good order and condition as a farm road until it should be adopted by the local authority. The claimants’ obligations under the agreement were to pay to the county council annually one-third of the actual costs incurred by the county council in carrying out their obligations under the agreement. The agreement was expressed to be for a period of 20 years until December 31 1984.
Four Pools Lane has at all material times also provided access for a plant hire depot situate about 600 yds south of its junction with Four Pools Road on its eastern side. The owners of the depot had a right of way in fee simple over the lane and also had the benefit of the 1966 agreement to which I have referred.
On November 23 1981, Four Pools Lane was severed at a point above 800 yds north of the entrance to Crab Farm. On that date a new road, known as Davies Road, which had been constructed by Wychavon District Council under powers contained in section 127 of the Act of 1971 and which runs in an easterly direction, crossed Four Pools Lane at the point which I have mentioned, and then proceeds in a northerly direction to join up with Broadway Road. On October 26 1981 the district council gave notice in writing to the claimants that with effect from November 23 1981 the council proposed to complete the construction of Davies Road in accordance with a planning permission dated March 21 1974 and that the construction would involve permanent interference to vehicular rights of access along Four Pools Lane to their respective properties. The notice also stated that as from November 23 1981 alternative access would be available by way of a newly constructed roadway from Davies Road to Four Pools Lane. Third, the notice informed the claimants of their right to claim compensation.
The severance of Four Pools Lane is physical in that bollards have been placed on the north and south sides of Davies Road at the intersection with the lane, preventing the movement of vehicles from one section of the lane to the other. Pedestrians are, however, not prevented from making use of the lane from one section to the other.
The alternative access provided by the district council for the use of the claimants is known as Woodlands. It is a tarmacadamed road, about 280 yds in length, which runs in an easterly direction and|page:206| connects Davies Road with Four Pools Lane at a point about 400 yds north of the entrance to Crab Farm. On the west side of Four Pools Lane there is a brook running north and south approximately parallel with the lane throughout much of its length. The brook consists of a deep ditch in which there is a shallow stream. A bridge has been provided over the stream and near it a turning area for traffic. The tarmacadamed surface ends at the bridge and thereafter the access to Crab Farm is via the 400 yds section leading to the entrance and, en route, to the plant hire depot on the eastern side of the lane.
Since 1981, two large housing estates together with shops and other facilities have been built in the vicinity of Crab Farm. One such estate, which is part private and part local authority housing, straddles Woodlands and extends as far as the intersection between Davies Road and Four Pools Lane. The other extends eastwards and north-eastwards from that intersection. The estates were built under a planning permission relating to some 60 acres of land granted to the former Evesham Borough Council by the former Worcestershire County Council on March 21 1974. By November 23 1981, construction of these estates had begun and indeed, some of the houses in the vicinity of the intersection were occupied.
That part of Davies Road which lies between Cheltenham Road and Woodlands provides access to an ambulance station, a swimming pool and squash courts, a college of further education and an industrial estate. At all material times Davies Road has been subject to a weight restriction of 7.5 tonnes except for access. There are road signs in the road indicating the restriction but making clear that it does not apply to access. At the junction between Davies Road and Woodlands there is a sign indicating the direction in which Crab Farm is to be found.
The following measurements and distances are relevant:
(1) Widths of carriageway:
(a) Durcott Road: 22 ft
(b) Four Pools Road: 22 ft
(c) Four Pools Lane: varying between 10 and 11 ft throughout its length
(d) Davies Road: 24 ft 6 ins
(e) Woodlands: 22 ft.
(2) The distance from the farm gate:
(a) To schools on Four Pools Road by car by the original route was 1,030 yds or thereabout and by the new route is 1.7 miles and on foot was and is 9 minutes walk by the original route and 16 1/2 minutes by the new route.
(b) To the local shop on Four Pools Road by car was about 1,030 yds by the original route and to the new supermarket on Davies Road by car the new route is 0.9 miles.
(c) From the farm gate to the top of Port Street was 0.74 miles by the original route and is 1.5 miles by the new route.
It is agreed that the value of Crab Farm in the open market immediately before November 23 1981 was £267,500. It is also agreed that immediately before that date the value of the bungalow and its land in the open market was £60,000.
Miss Joanne Moss, for the claimants, called Mr Richard Guy Russell Mumford FRICS FRVA CAAV, senior partner in the firm of Arthur G Griffiths & Sons, of Worcester and Evesham. Mr Robin Campbell called the district valuer, Mr Timothy John Gardner ARICS CAAV.
In Mr Mumford’s opinion, Crab Farm, after the interference with Four Pools Lane on November 23 1981 was worth £255,900 in the open market, which represents a loss in value of £11,600 or £75 per acre of workable land. Accordingly, in his opinion, Mr and Mrs Bernard Ward were entitled to compensation in the sum of £11,600. Further, in his opinion, the after value of the bungalow and its 15.316 acres is £56,750, representing a loss of £3,250, to which sum Mrs Doris Ward was entitled by way of compensation. In both cases the district valuer took the view that the before and after values were equal, that, having regard to the provision of the alternative access, there was no loss attributable to the inference and that the claimants were not entitled to any compensation.
Mr Mumford thought that, for vehicular traffic proceeding to and from Crab Farm, the new route is less convenient than the original route. This is because of traffic congestion at the junctions of Davies Road with Cheltenham Road and Broadway Road; car parking and traffic movement on Davies Road due to the college and swimming pool; parking of vehicles on Davies Road in the vicinity of the industrial estate and traffic movement on that road to and from that estate including numbers of large 40-ft-long articulated lorries manoeuvring; tail-back of traffic making for Evesham town centre on Cheltenham and Broadway Road, particularly on Thursdays and Fridays and at summer holiday time, and the weight restriction on Davies Road.
Mr Mumford believes that the prospective purchaser of Crab Farm in the open market would regard the weight restriction as a deterrent to lorry drivers and would fear that, notwithstanding the express exception of access on the relevant road signs, drivers of vehicles in excess of 7.5 tonnes in weight would believe that access to Crab Farm was not permitted. Mr Mumford said that that feature accounted for about 5% of the loss which he ascribed to Crab Farm.
Further, in support of his valuation, Mr Mumford said that urban fringe farming was unattractive to farmers due to the prospect of trespass, pilfering and damage to machinery to which it gave rise. Mr and Mrs Ward do not grow crops which attract pilfering such as potatoes or maize, vegetable crops or orchards, but any such crops, if grown, would be at serious risk if situated by the entrance to Crab Farm. In his opinion potential bidders for Crab Farm would be deterred from purchasing it because it was on an urban fringe within 400 yd of a high-density housing estate and because of the problems of trespass and the damage which dogs might in the circumstances do to cows and calves and, if Mr and Mrs Ward chose to keep them, sheep. There were thus three factors which would deter a prospective purchaser:
(1) the approach to the farm;
(2) the relative inconvenience of the new access; and
(3) the risk of trespass.
Mr Mumford believes that a purchaser in 1981 would expect that the 1969 agreement for repair of Four Pools Lane, though it would expire in 1984, would be successfully renegotiated. In any event, repair of the lane was not a problem for a farm which was well placed with materials and suitable vehicles to repair it. It would be repaired to a standard suitable to an access to a farm. There would be no provision for advance payment or sinking fund. Farmers liked unsophisticated things. Mr Mumford has had much experience in buying and selling agricultural land. He thought that the district valuer was more academic than he was.
Mr Gardner said that, although Woodlands was not yet adopted by the local authority, it was going to be adopted and he did not believe that the claimants would be liable for any expense in relation to the repair and maintenance of it. They would thus be relieved, as to 600 yds of Four Pools Lane, of the obligation to make contributions towards the costs of maintenance under the 1969 agreement and after December 31 1984 of the need from time to time to repair that section.
Urbanisation had crept towards the farm and by the valuation date was already on both sides of Four Pools Lane, where high-density housing estates were in course of construction. The fact that the alternative access ran through housing estates in effect meant no change. If there was a risk of trespass on the farm it arose from the presence of the housing estates and not from the provision of the alternative access. There was no risk of attacks on sheep from dogs because sheep were not kept on the farm and could not be kept because it was too wet. It was unlikely that cattle would be affected by trespass. Moreover, Mr Gardner thought that there was little risk of trespass. The plant depot abutted right up to the side of the lane. The impression was that the lane did not continue southwards beyond that point, thus reducing the likelihood of pedestrian trespass on to Crab Farm.
He did not think that additional travelling time or other traffic problems, which were personal matters, could be taken into account in the assessment of compensation. Moreover, the parking and traffic problems to which Mr Mumford referred were not continuous. He did not disagree with the method of valuation adopted by Mr Mumford but his conclusions were wrong. A nil valuation was appropriate in both cases.
Mr Robin Campbell contended that the value of the two interests was not lessened by the construction of the works. Neither interest was diminished in value by anything of which, on the authorities, the claimants were entitled to take account. He referred to the decisions of the House of Lords in Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243 and Caledonian Railway Company v Walker’s Trustees (1882) 7 App Cas 259. Loss claimed from physical works is, Mr Campbell said, not recoverable unless it is permanent in nature. While he accepted that inconvenience of the alternative access as compared with the old, if proved, would be the subject of compensation, traffic congestion was not permanent damage. If the new access would be less convenient than the old by reason of the|page:207| likelihood of greater traffic congestion arising from its use, that could not be the subject of compensation. It was too remote.
Miss Moss denied that the claimants were claiming for temporary damage. They were trying to measure the loss attributable to the interference in 1981. The purchaser would be buying a farm affected by a risk of trespass from the alternative access provided by the district council. It was not a novel head of claim. The interference with the easement was permanent. The loss claimed was not too remote. She did not seek to defend that part of Mr Mumford’s valuation which related to the restriction affecting large vehicles. On the subject of the likelihood of trespass, she observed that the brook had formerly been a barrier against trespass but there was now a bridge over it thus facilitating trespass.
I have inspected the entrance to Crab Farm, Four Pools Lane, Four Pools Road, Durcott Road, Coopers Lane, Bridge Street, Port Street, Broadway Road, Cheltenham Road, Abbey Road, Davies Road and Woodlands.
I accept the evidence of the district valuer. The effect of the closure and the provision of the alternative access is that, in place of an access, 1,030 yds long, all of which was narrow and in poor condition, the claimants have been provided with an access, 680 yds long, of which 400 yds is narrow and in poor condition, the remainder being twice as wide and tarmacadamed. Any obligation on the claimants to pay for or need to carry out repairs is also limited to those 400 yds. I accept that at busy times on the new route traffic problems of congestion and parking do occur, but I suspect that at busy times on any route, including the old route, leading to the centre of Evesham similar traffic problems occur and did occur. Even if traffic problems can be taken into account under the ‘McCarthy Rules’, I am not persuaded that the new route is, whether by reason of traffic problems or otherwise, less convenient than the old.
I am not satisfied that the willing purchaser in the market of Crab Farm or the bungalow and its land would fear that acts of trespass or vandalism would be generated by the new road. There is no evidence that since 1981 there has been in fact any trespass or vandalism on Crab Farm or Mrs Doris Ward’s land. If it had occurred it would be reasonable to blame the encroachment of the housing estates rather than the new road. It is said that before the bridge over the brook was built, the brook acted as a barrier to trespassers. However, the water in it was not very deep and I doubt whether it would have deterred a determined trespasser or vandal.
For these reasons I agree with the district valuer that the compensation to which the claimants in both cases are entitled is nil. I accordingly make no award.
The claimants will pay to the respondent district council their costs of the reference such costs, if not agreed, to be taxed by the Registrar of the Lands Tribunal on County Court Scale 3.
