Compensation — Withdrawal of notice to treat — Whether claim time-barred under section 9 of Limitation Act 1980 — Determination of compensation
In 1973 the statutory predecessor to the
respondent compensating authority made a compulsory purchase order that
included 692 square yards of land belonging to the claimant. In August 1975 a
notice to treat and a notice of entry were served. By a letter dated 9 May 1977
the notice to treat was purportedly withdrawn. In June 1977 a claim for
compensation for the service and withdrawal of the notice to treat of £6,183.13
was made on behalf of the claimant; this was increased at the hearing to
£12,129 for damage to his haulage business that the claimant said was closed on
the service of the notice to treat. The claimant made a reference to the Lands
Tribunal in April 1988. In Williams v Blaenau Gwent Borough Council
[1994] 2 EGLR 201 the tribunal determined a preliminary point deciding that, inter
alia, although there could not have been a withdrawal of the notice to
treat under section 31(3) of the Land Compensation Act 1961, there had been an
agreement that the notice to treat was withdrawn and that the compensating
authority remained liable to compensate the claimant in respect of any loss he
may prove he suffered in consequence of the service and withdrawal of the
notice to treat. At the hearing it was contended on behalf of the compensating
authority that as the notice to treat was withdrawn in 1977, and the reference
was not made until 1988, the claim was time-barred by reason of section 9 of
the Limitation Act 1980.
Compensation of £500 was awarded. The compensation recoverable by the claimant
was essentially one to which section 9 of the Limitation Act 1980 applied. In
accordance with the decision in Hillingdon London Borough Council v ARC
Ltd [1998] 3 EGLR 18, the claimant’s cause of action accrued when the
notice to treat was withdrawn on 9 May 1977; subject to any waiver or estoppel,
the claim became time-barred on 7 May 1983. The compensating authority should
have been fully informed as to their right to raise the limitation point
shortly after the first instance decision in Hillingdon in June 1997,
but did not do so until shortly before the hearing. By reason of waiver and
estoppel, the claimant was not time-barred. The tribunal was unable to find
that the claimant’s business had closed down in consequence of the giving and
withdrawal of the notice to treat; if it had closed down, it would have been
unreasonable. Adopting a robust approach, £500 was an appropriate sum to cover
loss of profits and the claim for the claimant’s time. Interest was awarded for
certain periods only.
The following cases are
referred to in this report.
Birkett v Hayes
[1982] 1 WLR 816; [1982] 2 All ER 710, CA
Clibbett (W) Ltd
v Avon County Council [1976] 1 EGLR 171; [1976] EGD 385; (1975) 237 EG
271, LT
Co-operative Wholesale Society v Chester-le-Street District Council (1996) 73 P&CR 111;
[1996] 2 EGLR 143; [1996] 46 EG 158
Co-operative Wholesale Society v Chester-le-Street District Council [1998] 3 EGLR 11;
[1998] 38 EG 153
Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111; [1995] 2 WLR 404;
[1995] 1 All ER 846; [1995] 1 EGLR 19; [1995] 19 EG 147; [1995] RVR 124, PC
Harvey v Crawley
Development Corporation [1957] 1 QB 485; [1957] 2 WLR 332; [1957] 1 All ER
504; (1957) 55 LGR 104; 8 P&CR 141, CA
Hillingdon London Borough Council v ARC Ltd [1999] Ch 139; [1998] 3 EGLR 18; [1998] 39 EG 202
Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850; [1970] 3 WLR
287; [1970] 2 All ER 871; (1970) 22 P&CR 74; [1970] EGD 761; 216 EG 31, HL
London, Chatham and Dover Railway v South Eastern Railway Co [1893] AC 429
National Westminster Bank plc v Powney [1991] Ch 339; [1990] 2 WLR 1084; [1990] 2 All ER
416; (1989) 60 P&CR 420
Prosper Homes v Hambros
Bank Executor Trustee Co (1980) 39 P&CR 395
Williams v Blaenau
Gwent Borough Council (1994) 67 P&CR 393; [1994] 2 EGLR 201; [1994] 40
EG 139; [1996] RVR 21
Williams v Dickenson
(VO) unreported 15 May 1978, LVC/740 & 1002/77
Charles Auld (instructed
by Stephen Thomas, of Brynmawr) appeared for the claimant; Charles Parsley
(instructed by the solicitor to Blaenau Gwent County Borough Council)
represented the compensating authority.
Giving his decision, MR PH CLARKE FRICS said: This is a reference to determine
the compensation payable (if any) consequent on the giving and withdrawal of a
notice to treat under a compulsory purchase order.
Mr Charles Auld, of counsel, appeared for the
claimant and called the claimant, Mr Joshua Williams, and Mr SP Allan bsc aca.
Mr
and called Mr Martin Hutchings.
Facts
The parties have not prepared a statement of
agreed facts. From the evidence I find the following facts:
(1) On 26 March 1973 the former Nantyglo and
Blaina Urban District Council (the predecessors of Blaenau Gwent County Borough
Council, now the compensating authority (the council)) made the Nantyglo and
Blaina Urban (Land Reclamation) Compulsory Purchase Order 1973. This was
confirmed by the Secretary of State for Wales on 28 January 1974. This order
included land owned by the claimant described as ‘692 square yards of land
situate to the north-east of Stones Houses, Blaina, Gwent’ (the reference
land).
(2) On 28 August 1975 a notice to treat under the
above compulsory purchase order was served on the claimant. On 29 August 1975 a
notice of entry was served requiring him to vacate the reference land by
29
undertaking with the acquiring authority (now the Borough of Blaenau Gwent)
that resulted in the withdrawal of the notice of entry. He was allowed to
remain on the reference land until 28 April 1976. In February 1976 an extension
of this period was sought by the claimant’s surveyors and the council agreed to
defer entry until 30 September 1976 while negotiations proceeded and pending
determination of the claimant’s planning application for the development of an
alternative site.
(3) On 30 September 1975 the claimant submitted a
claim for compensation for the acquisition of the reference land ‘to be agreed
with District Valuer’.
(4) During 1975 and 1976 the claimant’s surveyors,
Digby Turner, had negotiations with the council regarding relocation of the
claimant’s business and with the district valuer regarding compensation.
(5) On 14 January 1977 the district valuer wrote
to Digby Turner stating that he was waiting for hear from the council as to
whether they intended to continue with the compulsory purchase of the reference
land.
(6) On 9 May 1977 the town clerk of the council
wrote to Digby Turner confirming that the claimant should retain his present
site and the council would withdraw the notice to treat. On 11 May 1977 Digby
Turner replied to this letter asking if they could accept it as official
notification that the council had decided to withdraw the notice to treat and
that Mr Williams could now proceed to continue in business on the reference
land. On 10 June 1977 the town clerk wrote to both Digby Turner and the
claimant, by recorded delivery in each case, confirming that the letter of 9
May 1977 ‘may be taken as official notification that the council have decided
to withdraw the notice to treat’ in respect of the reference land.
(7) I find that the letter dated 9 May 1977 from
the town clerk to Digby Turner withdrew the notice to treat dated 28 August
1975 served in respect of the reference land.
(8) On 15 June 1977 Digby Turner wrote to the
council with a claim for compensation for the withdrawal of the notice to treat
in the sum of £6,183.13. This claim was rejected as to quantum by the council
by letter to Digby Turner dated 1 July 1977, save as to professional fees to be
negotiated with the district valuer.
(9) On 18 December 1987 the claimant issued
proceedings against the council in Blackwood County Court for recovery of
£1,087.47 as ‘money owed for sum costs of a Compulsory Purchase Order’ (sic).
This was a claim for professional fees. On 6 October 1988 an order was made for
recovery by the claimant from the council of £1,043.74 plus a court fee of £43.
(10) On 11 April 1988 the claimant’s solicitors
referred the determination of ‘compensation for withdrawal of notice to treat’
to this tribunal. On 21 March 1994 the former president (Judge Marder QC) gave
a decision on a preliminary point of law raised by the council, namely whether
the tribunal had jurisdiction to entertain a reference under section 31(1) of
the Land Compensation Act 1961 consequent on withdrawal of a notice to treat (Williams
v Blaenau Gwent Borough Council [1994] 2 EGLR 201*). His decision at
p204 was:
I reject the acquiring authority’s objection and
rule on a preliminary point that the acquiring authority remains liable to the
claimant to compensate him in respect of such loss by disturbance to his
business or otherwise as he may prove to have sustained by reason of the making
of a compulsory purchase order and service and later withdrawal of the notice
to treat.
*Editor’s note: Also reported at [1994] 40 EG 139
(11) On 11 June 1973 and 3 July 1975 the claimant
served proposals on the valuation officer in respect of the rating assessment
of his workshop and yard in the 1973 valuation list. The resultant appeals came
before this tribunal and a hearing was held on 15 May 1978 (Williams v Dickenson
(VO)). The following description of the property at that time is taken from
this decision:
Blaina is a village on A467 between Brynmawr and
Abertillery. The subject property is a short distance east of the main road and
is approached by somewhat poor tracks which terminate in an area of unsurfaced
ground used for parking and turning; this area is not part of the subject
hereditament which comprises a workshop of about 80 square metres, constructed
of cement rendered concrete blocks with a roof of corrugated iron. The building
has wooden swing doors. Adjoining, is a walled yard of about 160 square metres
and a compound of about 300 square metres. The yard is concreted but the
compound is unsurfaced. It is roughly fenced and there is a gap between the
yard and the compound. To the east is an area of a reclaimed tip which is now
unfenced grass land. No services are connected to the premises which are owned
and occupied by the appellant. They are used as a plant hire depot but there
are a number of machines in the building including a lathe and a drill. No
services at all are connected to the premises.
The extent of the reference land was not wholly
clarified at the hearing before me, but it would appear to comprise the walled
yard and workshop referred to above. The exact extent of the land is not
material to this decision.
(12) The claimant owned (and still owns) the
freehold interest in the reference land at all material dates in this
reference.
Issues
During the hearing three issues emerged for
decision:
(1) Whether the claim is time-barred under section
9 of the Limitation Act 1980.
(2) If not, what is the compensation payable to
the claimant (if any) for the giving and withdrawal of the notice to treat in
respect of the reference land?
(3) What interest (if any) is payable on any
compensation awarded?
Limitation
Submissions
Mr Parsley said that notice to treat was withdrawn
on 11 May 1977 but this reference was not made until 11 April 1988, well
outside the limitation period. The claim is therefore time-barred.
He referred to the decision on the preliminary
point of law, where the former president said that this was a matter of
disputed compensation to which section 1 of the Land Compensation Act 1961
applied. The appropriate limitation period under section 9 of the Limitation
Act 1980 is six years, and the claim became time-barred on 11 May 1983. In
support he referred to Hillingdon London Borough Council v ARC Ltd [1998]
3 EGLR 18*. Even if the decision on the preliminary point of law was that the
withdrawal of notice to treat and the right to compensation arose out of
agreement, the same limitation period would apply.
*Editor’s note: Also reported at [1998] 39 EG 202
There were no pleadings or points of claim in this
reference and therefore estoppel or waiver cannot apply. If an estoppel could
apply it would operate both ways and would not bind the council.
Mr Parsley acknowledged that limitation was first
raised by the council a few days before this hearing.
Mr Auld submitted that the claim is not
time-barred.
His primary submission was that this case can be
distinguished from Hillingdon. This is not a claim for statutory
compensation under section 31(3) of the 1961 Act. The decision on the
preliminary point of law was that the parties agreed that the notice to treat
be withdrawn and that compensation should be paid as if section 31 applied.
This is therefore a claim arising out of contract and the limitation period
under section 9 of the 1980 Act does not apply. The six-year contractual
limitation period is not brought into operation until an award of compensation
has been made by this tribunal. Failure to refer the claim to the tribunal is
not a breach of contract. The limitation period has not yet commenced.
Mr Auld said that, even if the reference was a
statutory claim for compensation in 1977, it became a contractual claim in 1994
when the decision was given on the preliminary point of law. At that time the
council were on notice that they could take the limitation point, but they
failed to do so until a few days ago.
In the alternative, Mr Auld submitted that, even
if the limitation period commenced in May 1977 and this were a claim for
compensation under section 31(3) of the 1961 Act, the council are prevented by
waiver or estoppel from raising limitation. He referred to Preston and
Newsom on Limitation of Actions (4th ed) at para 2.6.1 and Kammins
Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 at
pp851 and 862F. Mr Auld said that factors showing estoppel or waiver include
the council’s failure to raise the issue of limitation in the county court
proceedings and, until a few days ago, in this reference. The question of
limitation could have been raised in 1994 at the hearing on the preliminary
point of law. The council failed to do so and have
plead limitation.
In reply, Mr Parsley said that, even if this claim
arises out of agreement, it is an agreement that section 31(3) of the 1961 Act
applies, and therefore section 9 of the 1980 Act is the appropriate limitation
provision as applied by Hillingdon. Mr Auld’s argument that the
limitation period runs from the tribunal’s award or breach of contract by
non-payment was rejected in Hillingdon.
With regard to estoppel or waiver, Mr Parsley said
that the county court proceedings were unusual and the council accepted
liability for the payment of fees. Limitation could not be pleaded in the Lands
Tribunal proceedings because there were no pleadings.
The decision in Hillingdon changed the law,
and it was not known that limitation could be argued until the decision of the
High Court in that case. Inaction by the council, by not raising limitation,
cannot give rise to estoppel or waiver.
Decision
Section 9(1) of the Limitation Act 1980 provides
as follows:
An action to recover any sum recoverable by
virtue of any enactment shall not be brought after the expiration of six years
from the date on which the cause of action accrued.
Mr Parsley said that this provision applies to
this reference and, following the decision in Hillingdon, the cause of
action accrued on the withdrawal of the notice to treat in May 1977. The claim
therefore became statute-barred in May 1983. Mr Auld argued that the
compensation in this reference is not recoverable under statute but by
agreement, and the limitation period does not run until the amount has been
determined. Alternatively, the council cannot now plead limitation due to the
equitable doctrines of estoppel or waiver.
First, it is necessary for me to decide the nature
of the claim: is it under statute or agreement? The original notice of
reference states that the question to be determined by this tribunal is the
‘compensation for withdrawal of notice to treat’. The enactment conferring
jurisdiction on the tribunal was stated to be section 31(3) of the 1961 Act.
However, the claim changed its character at the preliminary hearing, and
emerged in March 1994, in the decision on the preliminary point of law, in a
different form. The former president (Judge Marder QC) referred to the
withdrawal of notice to treat within six weeks of delivery of a claim under
section 31(3) of the 1961 Act and said at p400:
However, I can see no reason why in such
circumstances there cannot be an agreement, whereby the authority is permitted
to withdraw on payment of compensation to the owners for any loss sustained by
reason of the service and subsequent withdrawal of notice to treat.
Furthermore, I can see no reason why such an agreement could not provide for
compensation to be payable as if the withdrawal had been effected under section
31.
Thus, where an acquiring authority has served
notice to treat but has not in fact entered into possession, and where
subsequently for whatever reason the authority decide not to proceed with the
proposed acquisition, leaving the owner in possession and content to remain in
possession, it is, in my judgment, open to the parties to agree to withdrawal
of the notice to treat, or for the owner to accept withdrawal of the notice to
treat upon payment to the owner of compensation for such loss as he proves has
resulted from service and withdrawal of the notice to treat.
…I am in no doubt that this was what was agreed
between the acquiring authority and the claimant’s agents… It follows that the
authority are bound to compensate the claimant for such loss as he may prove.
As to the jurisdiction of this tribunal, this is a matter of disputed
compensation to which section 1 of the Land Compensation Act 1961 applies.
His decision was therefore that, although the
notice to treat had not been withdrawn in accordance with section 31(3) of the
1961 Act, the claimant (through his agents) had entered into an agreement with
the council permitting them to withdraw the notice on payment of such
compensation as would have been payable if the withdrawal had been made under
section 31. The Lands Tribunal had jurisdiction because this was a matter of
disputed compensation to which section 1 of the 1961 Act applied.
In my view, therefore, although the claimant’s
right to compensation arises out of agreement, it is an agreement that
compensation should be assessed under section 31(3) of the 1961 Act. The former
president said that section 1 of that Act gave the Lands Tribunal jurisdiction,
and I also note that section 31(4) of the Act gives the tribunal jurisdiction
to determine the amount of any compensation payable under section 31(3).
In my judgment, therefore, the compensation (if
any) payable to Mr
any enactment’ under section 9 of the Limitation Act 1980. I cannot accept Mr
Auld’s primary submission that this is a case where contractual limitation
applies (section 5 of the 1980 Act). In accordance with the decision in Hillingdon
London Borough Council v ARC Ltd, I find that the cause of action
accrued when the council withdrew the notice to treat on 9 May 1977. The claim
therefore became time-barred on 9 May 1983, long before the reference was made
to this tribunal. In Hillingdon, the cause of action was entry on the
land acquired. This gave the claimant a right to compensation. In this
reference, the claimant’s right to compensation arose on the withdrawal of the
notice to treat, which, by analogy with the date of entry in Hillingdon,
I find to be the cause of action. In Hillingdon Potter LJ said at p22H:
the right or cause of action which arises on
entry by the authority may properly be characterised as a right to be paid such
compensation as may be agreed or assessed by the Lands Tribunal.
This passage can be aptly related to this
reference by the deletion of the words ‘on entry’ and the substitution of ‘on
withdrawal of notice to treat’.
However, the decision of the Court of Appeal in Hillingdon,
important though it is, does not represent the whole of the law. In Hillingdon,
estoppel or waiver were issues that were not raised in the proceedings referred
to above. They were, however, considered in Co‑operative Wholesale
Society v Chester-le-Street District Council [1996] 2 EGLR 143*,
where the acquisition was under the general vesting declaration procedure,
which has a statutory limitation period for reference to the Lands Tribunal. In
this tribunal the former president, Judge Marder QC, held that the time-limit
for a reference of disputed compensation to the tribunal under section 10(3) of
the Compulsory Purchase (Vesting Declarations) Act 1981 is capable of being
waived, either expressly or by conduct and, on the evidence, had been waived
under estoppel by convention, promissory estoppel and waiver. This decision was
subsequently upheld by the Court of Appeal [1998] 3 EGLR 11†. I was referred by
Mr Auld to the following passage in Preston and Newsom on Limitation of Actions
(4th ed) para 2.6.1:
The defendant may however disqualify himself from
relying on the Act either by contract… by waiver (Kammins Ballrooms Co v
Zenith Investments Ltd [1971] AC 850 and in the Court of Appeal [1970] 1
QB 673, especially per Sachs LJ) or by estoppel (Paterson v Glasgow
Corporation (1908) 46 SLR 10, Turburville v West Ham Corporation
[1950] 2 KB 208, Kaliszewska v J Clague & Partners (1984) 5
Con LR 62 and The August Leonhardt [1985] 2 Lloyd’s Rep 28).
*Editor’s note: Also reported at [1996] 46 EG 158
†Editor’s note: Also reported at [1998] 38 EG 153
I look therefore at waiver and estoppel to see
whether, notwithstanding the operation of section 9 of the 1980 Act, the
council have waived the limitation period or are estopped from relying upon it.
I look first at waiver, which was mainly relied
upon by Mr Auld. I was referred to the decision of the House of Lords in Kammins
Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd. Lord Morris
said at p862F:
If someone has an existing claim for money due or
for damages he may be met by a plea that some statute has enacted that an
action to enforce his claim must be brought within a certain period. Yet it has
always been recognised that words such as ‘no action shall be brought’ are
generally speaking not words which compel the court to hold that it lacks
jurisdiction even if the party sued does not wish to rely on the statutory
defence. The position is in my view
tenancy. He may be defeated if he has not applied within the statutory time
limits. But if the landlord chooses not to insist upon a strict compliance with
those limits I do not consider that the court is devoid of jurisdiction.
Lord Diplock said at p882H:
‘Waiver’ is a word which is sometimes used loosely
to describe a number of different legal grounds on which a person may be
debarred from asserting a substantive right which he once possessed or from
raising a particular defence to a claim against him which would otherwise be
available to him. We are not concerned in the instant appeal with the first
type of waiver. This arises in a situation where a person is entitled to
alternative rights inconsistent with one another. If he has knowledge of the
facts which give rise in law to these alternative rights and acts in a manner
which is consistent only with his having chosen to rely on one of them, the law
holds him to his choice even though he was unaware that this would be the legal
consequence of what he did. He is sometimes said to have ‘waived’ the
alternative right, as for instance a right to forfeit a lease or to rescind a
contract of sale for wrongful repudiation or breach of condition; but this is
better categorised as ‘election’ rather than as ‘waiver’…
The second type of waiver which debars a person
from raising a particular defence to a claim against him, arises when he either
agrees with the claimant not to raise that particular defence or so conducts
himself as to be estopped from raising it. This is the type of waiver which
constitutes the exception to a prohibition such as that imposed by section
29(3) of the Landlord and Tenant Act, 1954, and other statutes of limitation.
The ordinary principles of estoppel apply to it.
In National Westminster Bank plc v Powney
(1989) 60 P&CR 420 Slade LJ said at p444:
(The first defendant) reminded us of the
principle that ‘for a release or waiver to be effectual it is essential that
the person granting it should be fully informed as to his rights’: (Halsbury’s
Laws of England, para 1472).
The question arises therefore as to when the
council can be said to have been aware (or fully informed) of their right to raise
the defence of limitation.
Before the decision of Mr Stanley Burton QC,
sitting as a Deputy High Court Judge on 12 June 1977 in Hillingdon, it
was:
widely assumed, on the basis of the decision of
the Divisional Court in Turner v Midland Railway Co… that no
limitation period is applicable until the amount of compensation has been
agreed or determined. For example, in Co‑operative Wholesale Society
v Chester-le-Street District Council… the president Judge Bernard Marder
QC, said at p120:
‘…where an acquiring authority chooses to proceed
in pursuance of a Compulsory Purchase Order by the more conventional route of a
Notice to Treat followed by Notice of Entry, there is no statutory time limit
for a reference of disputed compensation to the Lands Tribunal.’
(See Hillingdon p19E.)
Hillingdon
concerned compensation for compulsory purchase where the traditional notice to
treat and notice of entry procedure had been used. It was held that the claim
became time-barred six years after the date of entry by the acquiring
authority. The right to compensation accrued at the time of entry, even though
that compensation had not been quantified or awarded. It was a ‘sum recoverable
by virtue of any enactment’ within section 9 of the 1980 Act. This decision was
upheld by the Court of Appeal in April 1998.
In my view, the council should have been ‘fully
informed as to’ their right to raise the question of limitation shortly after
12 June 1997 when the Hillingdon decision was given in the High Court.
The council first raised this defence a few days before the start of the
hearing in February 1999. At any time after June 1997 the council could have
sought to rely on limitation to defeat this claim. They did not do so. Although
they objected to delay by the claimant they acted as if this claim was valid
and would eventually be determined by this tribunal. They lodged an expert
report in July 1998. They did not raise the question of limitation until
February 1999. I do not accept Mr Parsley’s submission that limitation could not
have been raised due to the absence of pleadings. It was open to the council to
apply at any time to have the reference dismissed on the grounds that the claim
was time-barred. In my judgment, the delay (about 18 months) between June 1997
and February 1999 constituted a waiver of their right to raise limitation as a
defence to this claim. It would be unconscionable if the council could now
resile from the waiver clearly shown by their conduct.
I heard little argument on estoppel. In my view,
the appropriate estoppel is promissory estoppel. This is defined in Halsbury’s
Laws of England vol 16 at para 1071:
When one party has, by his words or conduct, made
to the other a clear and unequivocal promise or assurance which was intended to
affect the legal relations between them and to be acted on accordingly, then,
once the other party has taken him at his word and acted on it, the one who
gave the promise or assurance cannot afterwards be allowed to revert to their
previous legal relations as if no such promise or assurance had been made by
him, but he must accept their legal relations subject to the qualification
which he himself has so introduced.
Promissory estoppel is similar to waiver, ie ‘two
ways of saying exactly the same thing’: see Prosper Homes v Hambros
Bank Executor Trustee Co (1980) 39 P&CR 395 at p401.
In my view, promissory estoppel could not have
arisen before June 1997, when Hillingdon was first decided, because
neither party knew that limitation could be an issue. The council could not
have made a clear and unequivocal promise or assurance by words or conduct that
they would not raise the defence of limitation. As noted above, limitation was
first raised by the council in February 1999. In my judgment, the council’s
silence on this matter between June 1997 and February 1999 and their continued
participation in the reference constituted conduct giving a clear and
unequivocal promise or assurance that they would not raise the defence of
limitation, and was intended to affect legal relations with the claimant. The
claimant acted on this implied promise or assurance by proceeding with the
reference. On grounds of estoppel, it would also be unconscionable to allow the
council to rely on limitation to defeat this claim.
On this issue, therefore, the claimant succeeds in
waiver and estoppel. The claim is not time-barred under section 9 of the 1980
Act. I should add that, in reaching my decision that it would be unjust and
unconscionable for the council to rely on limitation, I have taken into account
the excessive delay on the part of the claimant and the various firms of
solicitors he has instructed to bring this reference to a hearing. The council,
however, have also shown a lack of urgency in bringing the matter to fruition
and readily agreed to the many applications for extensions of time to comply
with procedural directions made by the claimant. On balance, I do not think
that it would be right in the circumstances to deprive the claimant of the
protection afforded by the equitable remedies of waiver and estoppel. His claim
should be considered on its merits. I now consider it as it finally emerged at
the hearing.
Compensation
Claimant’s case
Evidence
Mr Williams, the claimant, was born in September
1929.
He said that he purchased the reference land in
1961 for the relocation of his business. He began business on his own account
in 1960. It contained several parts. The majority of the work involved the
repair and maintenance of heavy goods vehicles belonging to others.
Mr
occasionally undertake contract haulage. He also did odd-job work including
demolitions. Mr Williams did not have any employees.
Mr Williams held a haulage operator’s licence
since the late 1960s and used the land at the rear of Stone’s Houses as an
operating centre and repair yard for his operator’s licence. He held five
full-time licences but only used two of them. Mr Williams’ business was sound.
Every year it returned a profit, and the trend was upwards. He always had money
in the bank and did not take out loans or mortgages.
In mid- to late 1976 he began to notify customers
that his business would shortly be closing down due to the nearness of entry by
the council. At the same time, his haulage operator’s licence fell due for
renewal, but he did not renew it because of his imminent dispossession
and the lack of an alternative site. Owing to a change in the regulations, he
could not have obtained another licence at the reference land at a later date.
In cross-examination and in answer to questions from me, it emerged that Mr
Williams surrendered his licences before expiry, but he could not explain the
change in the regulations referred to above. When he surrendered his licences
he thought that he had to vacate the reference land by a particular date, but
could not now say what that date was nor could he say when he closed his
business down. Mr Williams said that, at about the same time, Digby Turner and
the district valuer agreed a value of about £26,000 for the going-concern value
of his equipment, tools etc. In cross-examination Mr Williams said that he had
closed his business by July 1976 and did not carry on well into 1976. Accounts
were prepared for years after 1976 and he received money later for work carried
out before that time. He does not have accounts post-1976 and tax returns have
been lost. Mr Williams said that, because he notified his customers that his
business was no longer continuing and because he no longer had a haulage
operator’s licence, his business was closed down.
Mr Williams referred to the compulsory purchase
order, notice to treat and notice of entry and the first extension of time for
possession (to April 1976). He did not agree to the second extension of time.
He did not oppose the compulsory purchase order because it was agreed that he
would be compensated by receiving an alternative site. No suitable land could
be located. Mr Williams said that he did not consent to the withdrawal of the
notice to treat and did not authorise Digby Turner to give consent on his
behalf. He did not receive the letter dated 10 June 1977 confirming withdrawal
of the notice to treat. He could not say when he heard from Digby Turner that
the notice had been withdrawn.
Mr Williams referred to the lack of electricity at
the reference land and to his belief that the council refused to grant a
wayleave because it would have increased the compensation.
Mr Williams said that he attempted to restart his
business following withdrawal of the notice to treat. It was impossible to do
so because he was unable to apply for a new haulage operator’s licence. Because
he had notified his customers that he was no longer in business, he did not
have a client base that could sustain the type of business he had previously
run. In cross-examination Mr Williams said that he did not write to any of his
former customers to say that he was continuing in business and he did not
advertise. Mr Williams still owns the reference land. Plant and machinery
previously used in his business is stored there. He has not operated a business
nor been in employment since he closed down in 1976. He still pays rates on the
reference land.
Mr Williams said that he believed that, because
alternative land had not been made available at a cost that could have been
afforded by the council, the notice to treat was withdrawn.
Mr Allan is principal of J&AW Sully & Co,
chartered accountants of Clevedon. He spoke to a report dated July 1990. His
instructions were to calculate the loss of profitability of the claimant’s
business as a result of the compulsory purchase order. This was essentially an
arithmetical exercise. Mr Allan pointed out to Mr Williams’ then solicitors
that the accounts were unsatisfactory and more work should be done to establish
the true position. The accounts for 1972-1974 are missing.
Mr Allan said that at some point between 1972 and
1974 the claimant’s business underwent a substantial change. There appeared to
be an increase in the scope of the business. After the missing years there was
a higher level of investment in plant and equipment (in 1975), which suggests
an increase in business activities. There was a bad debt that created a loss in
1975, but this may have been a purely paper exercise. It was suggested that Mr
Williams received a plot of land in settlement.
The accounts show increasing turnover from 1969 to
1975. Turnover increased by 18.4% each year over the last four years of this
period or 15.5% for the whole period for which accounts are available. Mr Allan
could agree therefore that the increase in turnover was marginally curtailed
during the period of the compulsory purchase order. But he said that there is a
further course to consider. Although Mr
there would have been nothing to prevent him continuing to trade, probably to
the date of his report.
Apart from the bad debt in 1974-75 the business
always appeared to be healthy, showing a good excess of assets over liabilities
without an overdraft. The business was viable and could have continued to trade
for a long period. Further expansion could have been achieved.
Mr Allan said that the 1975 accounts suggest a
haulage business or plant hire. There was a valuation of equipment on 21
December 1976. Mr Allan understood that the business was closed down in that
year. The accounts for the year ended 31 March 1976 show no sales, and plant
and equipment with a net book value of £656. It is difficult to equate these
two facts unless an additional business existed.
Mr Allan produced estimates of business loss on
two bases. In basis
year ended 31
1989 to produce a total loss of turnover of £119,835. In 1975 the net profit
would have been 62% of turnover excluding the bad debt, and, therefore, Mr
Allan took 62% of £119,835 as the total loss of net profit from 1975 to 1989,
£74,000. In basis 2 Mr Allan looked at the loss between 1 April 1975 and 31
December 1976. Again, he took as his starting point the turnover for the year
ended 31 March 1975, £2,467. He increased this by 15.5% pa to £2,849 for 1976
and £3,291 for 1977. Net profit at 62% produced a figure of £1,766 for the year
ended March 1976 and £2,040 for the year ended March 1977. The whole of this
net profit was lost to March 1976 (£1,766) and three-quarters was lost to
assumed closure in December 1976 (£1,530), making a total loss of net profit of
£3,296. If this sum was increased by the retail price index to the date of
hearing the loss became £12,129.
Submissions
Mr Auld said that the council have a difficult
task to prove that Mr
purchase order was in force. There is a lack of evidence by the council: only
an accountant has been called and no evidence has been given by officers who
were involved in the acquisition in 1975-1977.
In the rating appeal Williams v Dickenson,
the member’s observation that the reference land was used as a plant-hire depot
in May 1978 was only an expression of opinion. It is not evidence for such use
at that time.
Mr Auld said that Mr Williams suffered loss by the
surrender of his HGV licences, which was caused by the compulsory purchase
order. There was no duty on Mr Williams to support his evidence by reference to
the statutory regulations.
The test is whether Mr Williams acted reasonably
in closing down his business in the face of the impending acquisition. His
action was not unreasonable. There was a lack of communication between the
council and Mr Williams. In September 1976 he expected to be dispossessed and
therefore he closed his business down in the latter part of this year.
Mr Auld clarified the amount of the claim. Using
the evidence of Mr
suffered by Mr
establishment of a new business at a later date. It is for me to decide when
the claimant should have set up a new business. Three years is a realistic
period for the re-establishment of the business. On these assumptions he
claimed £22,681 with no interest or £6,163 plus interest from 1977. The former
figure comprises loss of turnover for the years ended 31 March 1976, 1977 and
1978 (total £9,941), giving a total net profit (62%) of £6,163, increased to
1999 prices by reference to the rise in the retail price index (multiplier
3.68). If interest is awarded, then the compensation is the loss of net profit
of £6,163 plus interest. Compensation should be awarded gross, ie before the
deduction of tax.
Basis 2 is in the alternative and represents loss
before withdrawal of the notice to treat. The figures are contained in Mr
Allan’s evidence: £3,296 plus interest or £12,129 at current prices. No
deductions have been made for tax.
Mr Auld also claimed a spot figure of £100 for the
claimant’s additional travelling and attendance at meetings. He said that
Mr
claim for £100 represented only about 30 hours work. There is no documentary
evidence to support this head of claim. Mr Auld withdrew claims for advertising
and postage and for loss of profits during the build up of a new business.
I should adopt a robust approach to the
calculation of loss due to the passage of time and the inadequate accounts.
Council’s case
Evidence
Mr Hutchings is a chief public finance accountant
employed by the council as chief internal auditor.
He said that he has examined Mr Allan’s report and
read the papers. In his view, the accounts fail to substantiate a loss of
profit. This can only be determined by reference to properly audited accounts.
Without such accounts Mr Hutchings was unable to comment further. To do so
would be speculative. He has seen no evidence to support the claim.
Mr Hutchings made the following further comments
on Mr Allan’s evidence:
(i) If the 1975 accounts indicate a different
business, how can we arrive at an annual increase in turnover of 15.5%?
(ii) If income was later received for work carried
out prior to March 1976, where is it shown?
(iii) The claimant’s business was a trading
business between 1968 and 1971 but by 1974-75 it was a plant-hire or haulage
business.
(iv) On 21 December 1976 a valuation of assets was
made at £26,180, but the accounts show only £650; this suggests more than one
business.
(v) The date of the haulage business could have
been as late as December 1976.
With regard to basis 1, Mr Hutchings said that
there is insufficient evidence to support an annual increase of 15.5% in
turnover: an inflation-adjusted figure is preferable. With regard to basis 2,
Mr
1975-76 omitted from the accounts, and to clarify when the business closed. If
it closed due to the haulage licence cancellation, then no loss resulted from
the compulsory purchase order.
Submissions
Mr Parsley referred to various paragraphs in Halsbury’s
Laws of England, vol 40 (Road Traffic) regarding HGV licences. He said that
I should exercise caution when considering Mr Williams’ evidence on this
matter. It was not explained why he surrendered his licences before they
expired. There was no change in the reference land during the period when the
compulsory purchase order was in force. It has not been explained how the order
affected Mr Williams’ licences.
Mr Parsley referred to the penultimate paragraph
in the decision on the preliminary issue (p204G-H) and said that this makes it
clear that Mr Williams must prove his loss. He also had a duty to act
reasonably and mitigate his loss. At no time during the compulsory purchase
order period was it imminent that the council would require his land. By
January 1977 it was known that it would not be required. Mr Williams’ business
was being run down late in 1976, but it did not come to a full stop as a result
of the compulsory purchase order. In 1978, when the rating appeals were heard,
the land appears to have been in use as a plant-hire depot.
Mr Parsley urged me to reject the claim under
basis 1 because the business was not irrecoverably destroyed. I should approach
basis 2 with caution. It has a number of unsatisfactory aspects, including
missing accounts, the bad debt in 1976 and the absence of any reference to the
plant and machinery valued at about £26,000. The accounts put in evidence
appear to refer only to part of the claimant’s business.
Any compensation should be determined as at the
date of the withdrawal of notice to treat and should be assessed gross, ie
without the deduction of tax. If I feel that Mr Williams suffered some loss, I
should use the robust approach to determine a modest figure.
Decision
By the decision on the preliminary point of law,
the council are required to compensate Mr Williams ‘in respect of such loss by
disturbance to his business or otherwise as he may prove to have sustained by
reason of the making of a compulsory purchase order and service and later
withdrawal of the notice to treat’ (p204G-H). This liability arises out of an
agreement that the notice to treat could be withdrawn by the council subject to
payment of the compensation that would have been payable if the withdrawal had
been effected under section 31 of the 1961 Act, namely ‘for any loss or
expenses occasioned to [Mr Williams] by the giving and withdrawal of the
notice’. I have found that the notice to treat was withdrawn on 9 May 1977.
Coupled with the agreement, this produced the council’s liability. In my
judgment, compensation should be assessed as at the date of the withdrawal of
the notice to treat, 9 May 1977. It should not be increased, as argued by Mr
Auld, to a higher sum as at the date of the hearing. It is the function of
interest to compensate for the loss of use of compensation and I deal with this
matter in the last part of this decision. This should not be done by increasing
the principal sum (the compensation) to a greater amount as if the loss had
occurred at a later date. In considering the claim, I therefore reject the
higher figures and look at the claim for £6,163 loss of profits on basis 1 or
£3,296 on basis
It is common ground that the burden of proof is on
the claimant. The loss claimed is similar to compensation for disturbance when
land is compulsorily acquired and, in my view, is subject to the same
conditions. There must be a causal connection between the withdrawal of the
notice to treat and the loss; the loss must be the natural and direct
consequence of the withdrawal of the notice to treat; it must not be too
remote; and the claimant must have acted reasonably and mitigated his loss: see
Harvey v Crawley Development Corporation [1957] 1 QB 485 at pp492
and 494 and Director of Buildings and Lands v Shun Fung Ironworks Ltd
[1995] 2 AC 111* at pp125C and 126A).
*Editor’s note: Also reported at [1995] 1 EGLR
19; [1995] 19 EG 147
I look now at the alternative claims for loss of profits.
Basis 1 is on the assumption that there was a total closure of the claimant’s
business. The important questions are: did the claimant close his business down
in consequence of the compulsory acquisition; and, if so, was this action
reasonable?
Mr Williams said that he was forced to close down
due to the impending acquisition and the loss of his HGV licences. The council
said that, if he did close down his business, this was not caused by the threat
of compulsory purchase. He was not required to vacate the land nor was there
any restriction on its use.
The events giving rise to this claim occurred 22
years ago and it is difficult, probably impossible, to ascertain the true
position at that time. I look first at Mr Williams’ evidence. Unfortunately, this
was often vague and sometimes inconsistent. At various times he said that he
ceased trading during mid- to late 1976; or he closed down the business at
about the time when a valuation was carried out of the plant and machinery
(which I have identified from the evidence of Mr Allan and contemporary
correspondence to have been on 21 December 1976); or that he had closed down
his business by July 1976. Mr Williams said that he did not start another
business and has not been employed since the closure of his business. The
position regarding the HGV licences is unclear. Mr Williams could not say when
they expired but he did say that he surrendered them two months early. Why he
did so was not explained. Why he did not renew them was not satisfactorily
explained. He said that he did not renew them because he would not have a yard
in the future due to the compulsory acquisition. Mr Williams’ accounts shed no
clear light on these questions. For the year ended 31 March 1975 he appeared to
have been trading normally and achieved an income (described as ‘sales’) of
£2,467. For the next year, however, a figure for sales of nil has been written
on the typed accounts, although he had outgoings. Why he received no income
during this year was not explained. All this evidence is inconclusive regarding
the closure of the claimant’s business.
I look now at the correspondence. Mr Williams was
represented by Mr R Pomfret frics
of Digby Turner & Co. He was instructed in about
was looking after Mr Williams’ interest in an efficient and active manner. The
correspondence throws some light on the closure of the business.
On 19 April 1977 Mr Pomfret asked the council for
a wayleave for an electricity supply to Mr Williams’ premises. On 11 May 1977
he wrote to the council requesting confirmation of the withdrawal of the notice
to treat ‘and that Mr Williams can now proceed to continue in business in these
premises’ (ie the reference land). These letters suggest that Mr Williams was
still in business in April and May 1977. On 15
submitted a claim for compensation for the withdrawal of notice to treat. I was
given a breakdown of this claim. It included a figure for loss of profit from
March 1974 to May 1977, cost of advertising and postage and loss of profit
during build-up of new business and a fee for a valuation of equipment ‘in
assessing loss on forced sale’. The claim does not include loss of goodwill or
future profits, which would have been likely if the business had been
extinguished, but it suggests closure in the claim for advertising and postage,
loss of profits during ‘build-up of new business’ and the value of equipment
for assessing loss on forced sale, although Mr Williams said in evidence that
he did not start a new business, did not advertise and did not sell his plant
and equipment, which is still stored on the reference land.
On 1 July 1977 the council replied to this claim.
Material parts of this letter are:
I understand that [Mr Williams] has neither ceased
occupation of the building nor ceased to carry on his business at these
premises…
Before vacating his existing premises, Mr
Williams required an alternative site for his business. A site was made
available to your client subject to planning consent being sought for the
development of the site.
Nevertheless, as the matter had not been settled
and circumstances permitted Mr Williams to retain his existing site, it was
considered that if Mr Williams desired to remain in his present premises then
the most satisfactory course of action would be for the Notice to Treat to be
withdrawn.
It was understood that this was your client’s
wish and for this reason the council agreed not to proceed with the compulsory
purchase order.
In a letter dated 16 April 1981 from the council
to one of the many firms of solicitors instructed by Mr Williams, the following
paragraph confirms the council’s view that Mr Williams wished to retain the
reference land:
I am informed that no statement was made in the
meeting of 15th December 1976 to the effect that the council did not require
the land. Because of the delay in acquiring your client’s land the Reclamation
Scheme on the surrounding area has been completed. Also, Mr Williams’ planning
application for the alternative site was yet to be determined. Having regard to
the overall situation, and notwithstanding the desirability of completing the
Reclamation Scheme as programmed, the council were prepared to consider the
possibility of Mr
resolving what had reached an impasse. It was suggested, therefore, that there
would be no objection if Mr
existing site, but the choice was his.
This letter also confirms that an electricity
wayleave and supply cable existed ‘to supply Mr Williams’s workshop’.
In May 1978 a member of this tribunal (WH Rees)
inspected the reference land following the claimant’s rating appeal (Williams
v Dickenson) and observed that the premises ‘are used as a plant-hire
depot but there are a number of machines in the building including a lathe and
a drill’.
The above evidence is inconclusive. I am unable to
find that Mr
giving and withdrawal of the notice to treat. I would go further and say that,
if he did close down his business, this would have been unreasonable in the
circumstances and he therefore failed to mitigate his loss. I reject the claim
for loss of future profits under basis 1.
I turn now to the claim for loss of profits before
the withdrawal of the notice to treat (basis 2). This claim is for £3,296,
representing loss of profits from 1 April 1975 to 31 December 1976. In
calculating this sum, Mr Allan took the turnover for the year ended 31 March
1975 (£2,467), increased it by 15.5% pa to produce notional turnover for the
years ended 31 March 1976 and 1977 of £2,849 and £3,291 respectively. Net
profit at 62% is £1,766 for 1976 and £2,040 for 1977. The whole of the notional
loss for 1976 is claimed (£1,766) plus three-quarters for the nine months to 31
December 1976 (£1,530). The accounts show that Mr Williams sustained a net loss
of £427 for the year ended 31 March 1976. Turnover (sales) was nil compared to
£2,467 in the previous year.
I heard no evidence to explain why Mr Williams
received no income during the year ended 31 March 1976 and in 1976-77, for
which no accounts were produced. In the absence of such evidence, I cannot
accept that the effect of the impending compulsory purchase was to take away
the whole of Mr Williams’ turnover. I can accept that the service of notice to
treat created uncertainty and diverted Mr Williams’ attention away from his
business. I can accept that he suffered some loss. Both counsel, I think,
recognised that this is a case where accuracy of calculation must give way to a
more general approach. Mr Parsley said that, if I feel that Mr Williams has
suffered some loss, I should use a robust approach to the assessment of
compensation. I should pick a figure out of the air but it should be a modest
sum. Mr Auld also recognised that it might be necessary to use a general
approach due to the passage of time and the poor quality of the accounts.
A robust approach to the determination of
compensation was used by a former president, Sir Douglas Frank QC, in W
Clibbett Ltd v Avon County Council [1976] 16 RVR 131*. He said at
p132:
I propose therefore to adopt a robust approach
similar to that used by the courts in assessing general damages and to award a
sum which in my judgment in all the circumstances is reasonable.
*Editor’s note: Also reported at [1976] 1 EGLR
171; (1975) 237 EG 271
I adopt such an approach in this reference. It is
impossible for me, on the very limited evidence, to assess Mr Williams’ loss
with any accuracy. I agree with Mr Parsley that he should receive only a modest
sum. Doing the best I can with the evidence, I award Mr Williams compensation
of £500 for the giving and withdrawal of the notice to treat on the reference
land. This covers loss of profits and the claim for the claimant’s time, which
is in the nature of a loss of profits claim.
Interest
Submissions
Mr Auld said that section 80 and Schedule 18 to
the Planning and Compensation Act 1991 do not apply to this reference. I have a
discretion to award interest. This should be simple interest. He referred to
the Encyclopedia of Compulsory Purchase and Compensation,
para
Act is to put the claimant in the same position as if the notice to treat had
not been given. It would therefore be unjust to award Mr Williams compensation
at 1977 prices without the addition of interest to compensate him for the
interval between loss and payment. The alternative approach is to award
compensation at 1999 prices. On the question of delay, Mr Auld said that, after
the reference was made, it was open to the council to apply for an early
hearing. They did not do so and I should take this into account.
Mr Parsley agreed that there is no right to
interest in this reference under the 1991 Act and that I have a discretion in
this matter. He referred to the second limb of section 31(3) of the 1961 Act
and said that Mr Williams has never submitted a proper claim for compensation
for the land to be taken. Furthermore, the whole claim is uncertain and
unsupported. There has been considerable delay in pursuing the claim. It was
not referred to the Lands Tribunal until 11 years after the withdrawal of the
notice to treat. Simple interest should be awarded and it should not be for the
whole of the period from withdrawal of the notice to treat due to the excessive
delay on the part of the claimant.
Both counsel said that section 80 and Schedule 18
to the 1991 Act do not apply to this reference. I agree. These provisions state
that compensation under section 31(3) of the 1961 Act shall carry interest at
the statutory compulsory purchase rates from the date of withdrawal of the
notice to treat. Section 80 came into force on 25 September 1991 subject to
limitations: see Planning and Compensation Act 1991 (Commencement No 1
Transitional Provisions) Order 1991, Articles 3 and 4 and Schedule 2. Under
Article 4(1)(a) and Part I of Schedule 2, section 80(1) of the 1991 Act, in so
far as it relates to section 31(3) of the 1961 Act, shall not have effect in
relation to a compulsory purchase order before the commencement date. Thus, the
interest provisions referred to above do not apply to this reference. Interest
is not payable on the compensation awarded as of right under the 1991 Act. I
have, however, a discretion regarding interest.
This reference was commenced before 1 January 1997
and therefore r
applies: see r 12 of the Lands Tribunal (Amendment) Rules 1997. Rule 32
provides that certain provisions of the Arbitration Act 1950, including
sections 19A and 20, shall apply to all proceedings in the Lands Tribunal.
Section 19A gives the tribunal power to award
simple interest at such rate as the member thinks fit on any sum paid before
the award (up to the date of payment) and on any sum which he awards (up to the
date of the award). Section 20 provides that a sum directed to be paid by an
award shall, unless the award otherwise directs, carry interest from the date
of the award at the same rate as a judgment debt. The award of interest in this
reference is governed by these provisions.
The purpose of interest in litigation is to
compensate a party from being kept out of the use of money due to him: see London,
Chatham & Dover Railway Co v South Eastern Railway Co [1893] AC
429 per Lord Herschell LC at p437. In this reference, Mr Williams’ right
to compensation for the giving and withdrawal of the notice to treat accrued on
the date of withdrawal, 9 May 1977, and normally I would regard this date (the
date for the assessment of compensation) as the date from which interest should
run. This is the position now where interest is payable on compensation under
section 31(3) of the 1961 Act under section 80(1) and Schedule 18 to the
Planning and Compensation Act 1991. This reference has, however, been subject
to inordinate delay, mainly caused by the claimant and the many firms of
solicitors he has used, both before and after the start of the reference. This
delay should be taken into account. In Birkett v Hayes [1982] 1
WLR 816 Watkins
Usually this period will run from the date of the
writ to the date of trial, but the court may in its discretion abridge this
period when it thinks it is just so to do. Far too often there is unjustifiable
delay in bringing an action to trial. It is, in my view, wrong that interest
should run during a time which can properly be called unjustifiable delay after
the date of the writ. During that time the plaintiff will have been kept out of
the sum awarded to him by his own fault. The fact that the defendants have had
the use of the sum during that time is no good reason for excusing that fault
and allowing interest to run during that time.
Lord Denning MR and Eveleigh LJ both agreed with
these observations (see p825A and G). I now determine the period of interest
having regard to the history of these proceedings and the causes of delay.
The withdrawal of notice to treat occurred on 9
May 1977 and the claimant’s surveyor quickly submitted a claim on 15 June. The
matter was not, however, referred to this tribunal for another 11 years. I have
no evidence as to the causes of this delay other than the proceedings in 1987
commenced by the claimant in Blackwood County Court for the recovery of fees.
In my view, the claimant was dilatory in referring his claim to this tribunal
and I make no award of interest for the period prior to the reference. The
reference was made on 11 April 1988 but was incomplete. An amended notice of
reference was lodged on 30
period when the claimant’s solicitors made numerous requests for extensions of
time to submit expert reports, all agreed to by the council. An expert report
was lodged on behalf of the claimant on 18 July 1990 and then followed a period
of delay by the council. In July 1991 the council applied for the determination
of a preliminary point of law and shortly after Mr
solicitors (July 1991) and appears to have been without solicitors until 10
February 1993 when he appointed new solicitors. During 1992 the council were
relatively active in pursuing the preliminary point of law and it was set down
for hearing on 10
on the preliminary point of law (at p201J), this hearing was adjourned because
‘the solicitors on record as solicitors for the claimant had taken no steps to
further the reference’.
For the period of the reference up to 10 February
1993, I award interest from 30 November 1988, when the reference was completed,
to 31 July 1991, when Mr Williams dismissed his solicitors (I do not have the
exact date in July), which caused the hearing on 10 February 1993 to be
adjourned.
On that date, new solicitors were appointed by Mr
Williams but there then followed further delay on the part of the claimant,
resulting in an adjournment of the hearing of the preliminary point of law
fixed for 19
6
and the preliminary point of law was heard on 2 February 1994 and a decision
given on 21 March. On 27 October 1994 Mr Williams dismissed his solicitors
again and further delay ensued. In these circumstances, I award interest for
the period from 6 January 1994 to 27
After October 1994 there was no progress until new
solicitors were appointed on 25 April 1996. From that date until the hearing in
February 1999 the case proceed slowly with delays on both sides. I award
interest from 25 April 1996 to the date of this decision.
My conclusion is therefore that, having regard to
the delays caused by the claimant and his solicitors, he should receive
interest on the compensation awarded at the compulsory purchase rates for the
periods 30 November 1988 to 31 July 1991, 6 January 1994 to 27 October 1994 and
from 25 April 1996 to the date of this award. In addition, interest will be
payable on the compensation awarded under section 20 of the Arbitration Act
1950.
Award
I determine the compensation payable to the
claimant for the giving and withdrawal of the notice to treat dated 28 August
1975 to be the sum of £500 (five hundred pounds). This amount shall carry
simple interest for the time being prescribed under section 32 of the Land
Compensation Act 1961 and the Acquisition of Land (Rate of Interest after
Entry) Regulations 1995 for the periods 30 November 1988 to 31
6 January 1994 to 27 October 1994 and 25 April 1996 to the date of this award.
Interest after the date of this award will follow section 20 of the Arbitration
Act 1950.
This decision determines the substantive issues
between the parties and my award is final. The question of costs remains outstanding
and the parties are invited to make submissions as to the costs of this
reference and a letter accompanies this decision as to the procedure for
representations in writing. I 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 RSC Ord 61 will not accrue until the
decision has been thus completed, ie from the date of the addendum.
Editor’s note: This interim decision determines
all matters save for the question of the costs of the reference.
