Highway scheme — Link road — Agricultural land — Part of retained land likely to obtain planning permission — Certificate of appropriate alternative development — Whether increase in value due to scheme — Whether increase in value of retained land to be set-off — Whether certificate obtained after vesting date valid — Award disallows authority’s contention of betterment set-off and accepts validity of certificate
The claimant was the owner of a large area of agricultural land, part of which was subject to the Lothian Region Edinburgh By-Pass (Sighthill Section) Compulsory Purchase Order 1983. Missives (in England exchange of contracts) were concluded on August 31 1984 (the agreed valuation date) in respect of three plots of land. In June 1987 the acquiring authority obtained certificates of appropriate alternative development in respect of the three plots. In respect of one plot (“plot 7”) the certificate was positive stating that on or after December 19 1985 planning permission for specified development would have been granted in outline. For the other two plots negative certificates were issued.
The acquiring authority contended that: (1) the certificates were invalid because they had been applied for after the vesting declaration in September 1984; (2) any increase in value of plot 7 was attributable to the scheme and had to be disregarded; and (3) betterment to the claimant’s retained land must be set-off against compensation payable for the land taken and that no compensation for severance or injurious affection was payable because of the betterment.
Held 1. By section 25 of the Land Compensation (Scotland) Act 1963 (in England section 17 of the Land Compensation Act 1961) an application for a certificate may be made where the interest in land is one which is “proposed to be acquired”. If the acquiring authority had considered that the certificate was invalid they could have pursued the matter in other ways. The tribunal is faced with a certificate and it is not within the tribunal’s jurisdiction to reject it.
2. The scheme of the authority consisted of a bypass, a roundabout and a link road. The bypass would have been unlikely but for the authority’s scheme; however, the link road provided access to adjoining development land belonging to three owners and it was a distinct possibility that this would have been built in the absence of the bypass. The claim for plot 7 for £900,000 reflecting hope value for a shopping centre, alternatively for £2,900,000 based on the certificate, was rejected as the prospect of a shopping centre was dependent on the scheme, the bypass and roundabout, and had to be disregarded. £52,432 reflecting industrial development was awarded.
3. No betterment fell to be set-off pursuant to section 35(3) of the Roads (Scotland) Act 1970 (in England section 261 of the Highways Act 1980). The claimant’s submission that the section only applies in respect of the benefit to him from the actual length of road fronting his retained land was rejected; the link road did not front the claimant’s land but it was a purpose which the tribunal takes into account in applying section 35. However, in the absence of the proposal of the authority, it was accepted that the link road would have been created. If section 14 of the 1963 Act was applicable (in England section 7 of the 1961 Act), that finding would mean that no set-off would be deducted. In applying the more liberal section 35 the same applies and no set-off arises. In the absence of statutory betterment, the claimant was entitled to severance and injurious affection compensation in respect of the two remaining plots acquired at agricultural values.
Robert L Martin QC (instructed by Archibald Campbell & Harley WS, of Edinburgh) appeared for the claimant and called Roger F Durman FRICS and Ian M Darling FRICS; and Brian Gill QC and Neil F Davidson (instructed by the solicitor to Lothian Regional Council) appeared for the acquiring authority and called Ian F Elvin FRICS.