Purchase notice–Land at Watford, Northants, formerly occupied by detached house–Used for dumping spoil from M1 construction and factory waste, raising level by 20 ft–Tribunal holds notional right to rebuild house incapable of being exercised and valueless
Mr A B Dawson
(instructed by Frere Cholmeley & Co) appeared for the claimants; Mr M B
Horton (instructed by Shoosmiths & Harrison, of Northampton) for the
acquiring authority.
Giving his
decision THE PRESIDENT said: This is a reference to determine the compensation
payable for the deemed compulsory purchase of land at Welton Station, Watford,
Northamptonshire. The claimants had served a purchase notice under section 129
of the Town and Country Planning Act 1962 on the ground that the land was
incapable of beneficial use. The council had objected to the confirmation of
the purchase notice on the ground that the land could be used for agriculture.
The claimants said, however, that use would not be practicable because they
were not engaged in agriculture and because access on three sides was barred to
them because they were not owners or lessees of the adjoining land, and on the
fourth side planning consent for an access was not forthcoming. Those
contentions by the claimants were accepted by the Secretary of State and
accordingly he confirmed the purchase notice and directed that notice to treat
was to be deemed to have been served on June 26 1973. The following is a
statement of the facts as agreed by the parties:
Agreed Facts
‘1. The
reference relates to about 0.93-acre of land on the northwestern side of
Station Road (B4036).
2. The
claimants’ interest is the freehold.
3. From about
1850 until 1964 there stood on the reference land a detached house with an
access to the highway B4036.
4. In about
1966 the highway authority dumped spoil from the construction of the M1 on the
reference land, and the claimants’ parent company were using the land for
dumping factory waste.
The extent of
the deposit raised the land by 20 ft all over.
5. In 1967 the
highway authority for the purpose of widening the B4036 acquired the strip of
land lying between the reference land and the then north-western edge of B4036,
shown on the agreed plan.
6. The said
strip has now been incorporated into the B4036.
7. At the request
of and at the expense of the highway authority after the widening the
claimants, who are timber merchants, erected in the highway on its north-west
side a continuous fence: the said fence remains in position and there is in
fact no access from the highway to the reference land.
8. On June 26
1973 the Secretary of State for the Environment confirmed a purchase notice in
respect of the reference land served by the claimants on the acquiring
authority.
9. The agreed
value of the reference land with the benefit of an assumed planning permission
to rebuild the house referred to in paragraph 3 and with a right of access from
the reference land directly to the B4036 is £9,000.
10. The agreed
value of the reference land without any assumed planning permission and with no
access directly to the B4036 is £300.’
The parties
are unable to agree the value of the land with an assumed planning permission
to rebuild the house referred to in paragraph 3 but without any access to the
highway, and if it is decided that is the correct method of valuation a further
hearing will be required.
The claimants’
case, put shortly, is that in valuing the land for compensation purposes it
must be assumed that planning permission would be granted to rebuild the house
which stood on the land until 1964. That submission arises firstly from
subsection (3) of section 15 of the Land Compensation Act 1961, which provides:
‘It shall be
assumed that planning permission would be granted, in respect of the relevant
land or any part thereof, for development of any class specified in the Third
Schedule to the Town and Country Planning Act 1947 (which relates to
development included in the existing use of land).’
The Third
Schedule to the 1947 Act is now the Eighth Schedule to the Town and Country
Planning Act 1971, and that specifies as a class of development for which
planning permission is to be assumed the following [in para 1]:
‘The carrying
out of any of the following works, that is to say: (a) the rebuilding, as often
as occasion may require, of any building which was in existence on the
appointed day, or of any building which was in existence before that day but
was destroyed or demolished after January 7 1937, including the making good of
war damage sustained by any such building.’
Mr Horton, for
the council, disputed the relevance of those rights, partly on the ground that
there is no access to the land and planning permission would be required for
the formation of an access and, alternatively, on the ground that the relevant
land no longer exists. Further, that the rights under the Eighth Schedule have
been abandoned by the filling of the land.
I propose
first to deal with the submission that the relevant land, as Mr Horton put it,
no longer exists, but I think more accurately the contention should be that it
is not possible to build a house on the relevant land. He says that the
relevant land is that part of the ground upon which the former house stood and
it is not possible to build on that because it is not covered with spoil to the
depth of 20 ft.
Mr Dawson for
the claimant argues, however, that the assumption in the Eighth Schedule must
be made and that it is not inconsistent with the tipping on the land before the
carrying out of the building operation. He says by the definition of land in
section 39 of the 1961 Act, that land there means the whole of the area ‘from
the gates of Hell to the gates of Heaven’ and that the raising of levels has no
effect.
War Damage
Commission’s Test
I find myself
unable to accept the second part of that submission. It seems to me that in any
given case it is a question of fact and degree whether a building is a
rebuilding of a preexisting building or whether it is a new building; see, for
example, In re Walker’s Settled Estate [1894] 1 Ch 189. I gain some help
from the practice notes issued by the War Damage Commission in which they set
out the test they applied in deciding what is meant by making good war damage,
and they said that it is: ‘looking at the works executed, can the property be
fairly described as still the same property as before the war damage although
altered or added to?’ That test was expressly
approved in the case of City of London Real Property Co Ltd v War
Damage Commission [1956] Ch 607. Adapting that test to the present case I
asked myself this question: ‘Looking at a notional new building of the same
design as the demolished house on the site as it exists today and in the same
vertical plane as the demolished house, could it reasonably be said that the
new house is the same property as before although rebuilt, or is it an entirely
new house?’
Another test
one could apply is to assume that there had been an express planning permission
to build a house on the site as it existed before being filled and to ask
whether that permission would authorise the building of a similar house on the
site as it is now. In my view the answer is clearly ‘no,’ and if authority is
required for that it is the case of Shemara v Luton Corporation (1967)
18 P & CR 520. Therefore I conclude that the notional right to rebuild is
incapable of being exercised and therefore valueless.
I follow the
Divisional Court in the recent case of Pilkington v Secretary of
State for the Environment [1974] 1 All ER 283, and base my decision solely
on the impossibility of exercising the notional right to rebuild.
It follows
from what I have said that in my judgment the notional right to rebuild is
valueless and accordingly I hold that the proper amount of compensation payable
is £300 plus surveyor’s fees on scale 5a of the RICS scale of fees. It is
unnecessary under the circumstances for me to deal with the questions of
abandonment or access.
The claimant
will pay to the acquiring authority its costs of this reference, such costs,
unless agreed, to be taxed by the Registrar of the Lands Tribunal on scale 4 of
the County Court Scales of Costs.
