|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Lands Tribunal
You are here: BAILII >> Databases >> England and Wales Lands Tribunal >> Land & Property Ltd v Restormel Borough Council  EWLands LCA_47_2002 (9 August 2004)
Cite as:  EWLands LCA_47_2002
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
 EWLands LCA_47_2002 (9 August 2004)
LANDS TRIBUNAL ACT 1949
COMPENSATION – modification of planning permission by deletion of retail use from permitted development – depreciation in land value – no approval of reserved matters at valuation date – basis of valuation – whether it is to be assumed that approval granted – compensation for depreciation in land value, £1,586,000 – abortive costs – professional fees – Town and Country Planning Act 1980, ss 73, 107(1)(2), 117(1); Land Compensation Act 1961, s5.
IN THE MATTER OF A NOTICE OF REFERENCE
LAND AND PROPERTY LIMITED
RESTORMEL BOROUGH COUNCIL Compensating
Land at Victoria Business Park,
Victoria, Roche, Cornwall
Before: P H Clarke FRICS
Sitting at 48/49 Chancery Lane, London WC2
on 1-4 December 2003, 2-5 February and 1-3 March 2004
(with closing submissions in writing received on 12 and 22 March 2004)
Guy Roots QC and Reuben Taylor instructed by Stephens and Scown, solicitors, for the claimants
Christopher Katkowski QC and James Maurici instructed by Sharpe Pritchard, solicitors, for the compensating authority.
The following cases are referred to in this decision:
R v Restormel Borough Council ex p Corbett and Parkin  JPL 445
R v Restormel Borough Council ex p Corbett  EWCA Civ 330;  1 PLR 108
R v Bolsover District Council ex p Ashfield District Council (1995) 70 P & CR 507
Horn v Sunderland Corporation  QB 26
Director of Buildings and Lands v Shun Fung Ironworks Limited  AC 111
Pointe Gourde Quarrying and Transport Co Limited v Sub-Intendent of Crown Lands  AC 565
Wilson v Liverpool City Council (1970) 22 P & CR 282
Myers v Milton Keynes Development Corporation (1974) 27 P & CR 518
Central Land Board (Liquor Traffic) v Cannon Brewery Co Limited  AC 744
Lithgow v United Kingdom  8 EHRR 329
Inverclyde District Council v Lord Advocate (1981) 43 P & CR 375
British Telecommunications Plc v Gloucester City Council (2002) 2 P & CR 512
Westminster City Council v Great Portland Estates Plc  AC 661
R v Hammersmith and Fulham London Borough Council ex p Greater London Council (1985) 51 P & CR 120
Shemara v Luton Corporation (1967) 18 P & CR 520
Lewis Thirkell Limited v Secretary of State for the Environment  JPL 844
Medina Borough Council v Proberun Limited (1960) 61 P & CR 77
East End Dwellings Company Limited v Finsbury Borough Council  2 AC 109
Ryde International Plc v London Regional Transport  RVR 59;  RVR 49
Lindon Print Limited v West Midlands County Council  2 EGLR 200
London County Council v Tobin  1 WLR 354
Loromah Estates Limited v Haringey London Borough (1978) 248 EG 877
J A Pye (Oxford) Limited v Kingswood Borough Council  2 EGLR 159
Pine Valley Developments v Ireland (1991) 14 EHRR 319
Baner v Sweden (1989) 60 DR 128
Trailer and Marina (Leven) Limited v Secretary of State for the Environment, Food and Rural Affairs and English Nature  EWHC 153 (Admin)
R v London Borough of Bromley ex p Barker  Env LR 25
Pye v Secretary of State for the Environment  3 PLR 72
Waters v Welsh Development Agency  UKHL 19  1 WLR 1304
Bolton Metropolitan Borough Council v Tudor Properties Limited  RVR 292
Sporrong and Lonnroth v Sweden  5 EHRR 35
James v United Kingdom (1986) 8 EHRR 123
Chapman v United Kingdom (2001) 23 EHRR 18
Fredin v Sweden (1991) 13 EHRR 784
Heron Limited v Manchester City Council  1 WLR 937
R v Docklands Development Corporation ex p Frost (1996) 73 P & CR 199
Yorkshire Traction Co Limited v South Yorkshire Passenger Transport Executive  RVR 67
DECISION OF THE LANDS TRIBUNAL
Planning permissions and agreements
"The total floor space to be used for non-food retail purposes shall not exceed 125,000 square feet in area comprising a maximum number of five units, four of which shall not be subdivided and shall each be occupied by a single non-food retailer.'
Other conditions related to the completion of development in accordance with approved plans; commencement of development; petrol/oil interceptors; development close to existing sewers; surface water drainage; storage of goods and equipment; electricity and telephone cables; and foul water drainage.
Applications for approval of reserved matters
(i) "that in the appeal against the non-determination of the application for approval of reserved matters, the Council's case should include a legal submission that the application does not comply with Condition No. 14 of the outline planning permission granted on 13 May 1997;"
(ii) "with regard to application No. 97/16/00972, for the non-food shopping village, the Planning Inspectorate be advised that this Authority does not support the application on the basis of unsuitable design, layout, landscaping and highway/traffic implications."
Modification of 1997 permission and determination of reserved matters applications
A30 and B3274 roads
"… preparation work will continue to progress the following to remove a bottleneck on the A30 in Cornwall to enable it to be taken forward without delay subject to full appraisal and the views of the regional planning conference:
A30 Bodmin – Indian Queens Improvement"
Other transport facilities
Contracts and offers relating to the reference land
Factory outlet centres
Atlantic Village, Bideford
Claim for compensation
(i) the modification order had been made and therefore the land had planning permission only for B1, B2 and B8 development;
(ii) it was reasonable to expect to obtain promptly approval of reserved matters for a development with approximately 40% site cover;
(iii) there were no abnormal costs.
(i) Head 1 – abortive expenditure, the cost of holding the reference land for the period during which it was said to have been sterilised by the process leading up to the making of the modification order, £68,379.27;
(ii) Head 2 – depreciation in the value of the reference land, £3,904,553;
(iii) Head 4 – professional costs, £86,481.85.
|Abnormal costs (agreed)||1,124,000|
|Consideration for retail land||4,020,000|
|Divided by 123,022 sq ft ITMS||32.68|
|125,000 sq ft @ £32.68||4,085,000|
|Larger catchment||+ 30%|
|Differences in time & planning||+ 7.5%|
|Deficiencies of site||- 7.5%|
|Net adjustment||+ 30%||1,225,500|
|Abnormal costs (agreed)||780,947|
|Value of reference land||£4,529,553||£4,529,553|
|Abnormal costs (agreed)||1,124,000|
|Divided by 123,022 sq ft ITMS||32.43|
|125,000 sq ft @ £32.43||£4,053,750|
|Larger catchment||+ 25%|
|Differences in time & planning||+ 5%|
|Local catchment||- 10%|
|Effect of Trago Mills||- 10%|
|Deficiencies of site||- 15%|
|Net Adjustment||- 5%||202,687|
|Abnormal costs (agreed)||780,947|
|Parking deficiencies, 10%||307,012|
|Effect of risks & uncertainties||1,000,000|
"… where planning permission is … modified by an order under section 97, then if, on a claim made to the local planning authority within the prescribed time and in the prescribed manner, it is shown that a person interested in the land …. –
(a) has incurred expenditure in carrying out work which is rendered abortive by the … modification; or
(b) has otherwise sustained loss or damage which is directly attributable to the … modification,
the local planning authority shall pay that person compensation in respect of that expenditure, loss or damage."
Subsection (2) deals with expenditure on plans:-
"For the purposes of this section, any expenditure incurred in the preparation of plans for the purposes of any work, or upon other similar matters preparatory to it, shall be taken to be included in the expenditure incurred in carrying out that work."
"For the purpose of assessing any compensation to which this section applies, the rules set out in section 5 of the Land Compensation Act 1961 shall, so far as applicable and subject to any necessary modifications, have effect as they have effect for the purpose of assessing compensation for the compulsory acquisition of an interest in land."
Subsection (2) applies the section to compensation payable in respect of depreciation of the value of an interest in land.
DEPRECIATION IN LAND VALUE
Basis of valuation
"The word 'compensation' almost of itself carried the corollary that the loss to the seller must be completely made up to him, on the ground that, unless he received a price that fully equalled his pecuniary detriment, the compensation would not be equivalent to the compulsory sacrifice."
Later he referred to the "…. principle of equivalence which is at the root of statutory compensation, the principle that the owner shall be paid neither less nor more than his loss" (at 49).
"The purpose of these provisions, …, is to provide fair compensation for a claimant whose land has been compulsorily taken from him. This is sometimes described as the principle of equivalence. …., a claimant is entitled to be compensated fairly and fully for his loss. Conversely, and built into the concept of fair compensation, is the corollary that a claimant is not entitled to receive more than fair compensation: a person is entitled to compensation for losses fairly attributable to the taking of his land, but not to any greater amount. It is ultimately by this touchstone, with its two facets, that all claims for compensation succeed or fail."
"It is well settled that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition."
A scheme has also been referred to as an "undertaking" or "project" (see Wilson at 293). The question in this reference is whether the elimination of the retail element in the 1997 permission under the modification order can constitute a scheme for the purposes of the Pointe Gourde rule? I do not think that it can. The modification order is an administrative act, complete in itself and not linked to, or in furtherance of, any underlying scheme. In my judgment, a scheme must be a physical occurrence, e.g. the building of a road or other development. It cannot be an administrative process leading to an administrative order (as in a modification order) although a scheme can comprise an administrative process leading to an acquisition and to a scheme or project of development. In Waters v Welsh Development Agency  UKHL 19, Lord Nicholls said (at para 58):-
"A scheme essentially consists of a project to carry out certain works for a particular purpose or purposes."
"… an underlying scheme of development, in consequence of which the compulsory purchase order was made."
In Pye this Tribunal found that the scheme underlying the acquisition was "the completion of the link road by acquiring the reference land." On appeal this finding was attacked by the appellants. Buxton LJ said (at 162M-163A):-
"[Counsel for the appellants] argued that the tribunal's decision was flawed on two separate grounds. First, the tribunal had erred in law in failing to appreciate the distinction between the acquisition and the scheme underlying the acquisition. Second, the decision was perverse, because given that the link road had been a proposal since 1971, the only reasonable finding for the tribunal was that the link road as a whole was the reason for the acquisition of the reference land.
As to the first of these criticisms, I agree that the 'scheme' cannot be the acquisition itself. So to hold would not only be logically inconsistent with Pointe Gourde, but also inconsistent with statements, such as that in Wilson and in Pointe Gourde itself, that the scheme must underlie the acquisition. But that is not what the tribunal did hold. It held in terms that the scheme for the furtherance of which the land was acquired was the completion of the link road. The acquisition was a necessary precondition to that completion, but on no view was it, or was it held by the tribunal to be, the same thing as the scheme of completion."
"… an intention to take away the property of a subject without giving to him a legal right to compensation for the loss of it is not to be imputed to the Legislature unless that intention is expressed in unequivocal terms."
In my judgment, this canon of statutory construction relates to the right to compensation and not to the amount nor to the basis to be used in assessing the amount. It is not in dispute that the claimants are entitled to compensation for depreciation in land value. The basis of assessment and amount are in dispute. I do not find this canon of construction of assistance. The claimants have suffered a loss of land value by the modification of the 1997 permission and a right to compensation is given by section 107 (1)(b) of the 1990 Act for "loss or damage which is directly attributable to the … modification." I do not think that those words must necessarily be interpreted to require the loss or damage to be assessed on the basis of hypothetical circumstances, as in Scenario A. As I explain below the additional loss of land value under Scenario A was not attributable to the modification process but to other factors.
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
Convention rights include Article 1 of The First Protocol (set out in Part II of Schedule 1 to the Act):-
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"The Court recalls that Article 1 in substance guarantees the right of property. In its judgment of 23 September 1982 in the case of Sporrong and Lonnroth, the Court analysed Article 1 as comprising 'three distinct rules': the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, is concerned, amongst other things, with the right of a State to control the use of property. However, the Court made it clear in its James and Others judgment of 21 February 1986 that the three rules are not 'distinct' in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule."
"This is an area in which a wide margin of discretion should be accorded to the decisions of the legislature and the executive. Although the margin of appreciation accorded to national decisions by the ECtHR is not the same conceptually as the area of discretion afforded by the Courts to the decisions of Parliament and of the Government, the width of the margin of appreciation accorded in such cases by the ECtHR is an indication of the appropriate width of the area of discretionary judgment accorded to the decisions of Parliament and of the executive. It is plain from decisions on the controls of the use and development of land, and in environmental policy generally, that a wide margin of appreciation is accorded by the ECHR to national decisions. Sporrong and Lonnroth v Sweden  EHRR 35, which in part involve a control of use and Chapman v UK  23 EHRR 18, which concerned the enforcement of planning controls so as to prevent a gypsy from living on her land within the Green Belt, both refer to the 'wide' and 'broad' margins of appreciation which such national decisions enjoy."
"The Court further accepts the Commission's conclusion as to the standard of compensation: the taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference which could not be justified under Article 1. Article 1 does not, however, guarantee a right to full compensation in all circumstances, since legitimate objectives of 'public interest', such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value.
In this connection, the applicants contended that, as regards the standard of compensation, no distinction could be drawn between nationalisation and other takings of property by the State, such as the compulsory acquisition of land for public purposes.
The Court is unable to agree. Both the nature of the property taken and the circumstances of the taking in these two categories of cases give rise to different considerations which may legitimately be taken into account in determining a fair balance between the public interest and the private interests concerned."
"There was no formal expropriation of the property in question, neither, in the Court's view, can it be said that there was a de facto deprivation. The impugned measure was basically designed to ensure that the land was used in conformity with the relevant planning laws and title remained vested in Healy Holdings, whose powers to take decisions concerning the property were unaffected. Again, the land was not left without any meaningful alternative use for it could have been farmed or leased. Finally, although the value of the site was substantially reduced, it was not rendered worthless, as is evidenced by the fact that it was subsequently sold in the open market.
Accordingly, as for example in Fredin v Sweden, the interference must be considered as a control of the use of property falling within the scope of the second paragraph of Article 1."
"It follows from the case-law of the Convention organs that as regards deprivation of possessions there is normally an inherent right to compensation (Eur.Court HR, James and Others judgment of 21 February 1986, …, and Lithgow and Others judgment of 8 July 1986 …). However, in the Commission's view such a right to compensation is not inherent in the second paragraph. The legislation regulating the use of property sets the framework in which the property may be used and does not, as a rule, contain any right to compensation. This general distinction between expropriation and regulation of use is known in many, if not all, Convention countries.
This does not exclude that the law may provide for compensation in cases where a regulation of use may have severe economic consequences to the detriment of the property owner. The Commission is not required to establish in the abstract under which circumstances Article 1 may require that compensation be paid in such cases. When assessing the proportionality of the regulation in question it will be of relevance whether compensation is available and to what extent a concrete economic loss was caused by the legislation."
"I regard Baner as showing what the general but not necessarily universal position is in relation to a control of use. Compensation for it is not inherent in the Convention, control of use legislation does not 'as a rule' contain provision for compensation. Given the fact-sensitive nature of the ECtHR jurisprudence however it would be foolhardy to treat a general statement as one which permitted of no exceptions, until the degree or nature of the control had become such as to amount to expropriation. Nor does the Court express itself in such a way. It is better to say, drawing on the article by David Anderson QC 'Compensation for Interference with Property'  EHRLR 544 that there is no presumption in favour of compensation in a control of use case, and that its availability is one of the factors relevant to whether a fair balance has been struck between the public interest and an individual's rights. The payment of compensation would generally support a finding of non-violation but many instances existed where a fair balance had been struck notwithstanding the absence of such provision."
He then concluded (paras 83-84):-
"In my judgment, that contention of Mr Maurici's is well founded. In James, …, the ECtHR held in para 54:
'The Court further accepts the Commission's conclusion as to the standard of compensation: the taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under Article 1. Article 1 does not, however, guarantee a right to full compensation in all circumstances. Legitimate objectives of 'public interest', such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value. Furthermore, the Court's power of review is limited to ascertaining whether the choice of compensation terms falls outside the State's wide margin of appreciation in this domain.'
Although compensation terms in an expropriation case are material to whether the relevant balance had been struck fairly, if full market value was not required there because of countervailing legitimate objectives of a public interest nature, even more so does that argument apply in relation to interference by way of control of use."
Market value of reference land
"The value of land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise:"
Scenario B reflects the position in the real world at the valuation date, subject only to the necessary assumption that the Secretary of State decided not to modify the 1997 permission. On this basis Mr Ovenden's valuation is £3,250,000 and Mr Cussen's valuation is £1,625,000. Both valuers arrived at their figures by analysing the sale of land at Clovelly Road, Bideford, later developed as Atlantic Village, then applying their analysis to the reference land. Mr Ovenden also sought to justify his valuation by reference to the contracts and offers for the reference land. I will follow the common approach.
The alternative figures for the reference land are:-
It is agreed that the number of tourist nights in the 90 minutes drive time for Bideford is 22,362,700 and for the reference land 43,029,600.
(i) TRICS 1996 Database (referred to by the inspector), 929 to 1,102 spaces (with her comment that 945 spaces is at the lower end of the range and may be sufficient for a low catchment situation).
(ii) The contracts and offers envisage parking for 1,000 cars for an FOC of 125,000 sq ft retail floorspace.
(iii) Atlantic Village indicates 900 car spaces for the reference land.
(iv) Mr Tucker's selection of FOCs (excluding the highest and lowest) indicates 1,078 spaces with a range of 833 to 1,250.
(v) Mr Tonks' selection of FOCs (excluding the highest and lowest) indicates 900 spaces for the reference land with a range of between 786 and 1,059.
(vi) The combined selection of FOCs in (iv) and (v) above indicates that 954 spaces are required on the reference land with a range between 786 and 1,250.
"When an application is made for approval of a reserved matter, the application must be within the ambit of the outline planning permission and must be in accordance with the conditions annexed to the outline permission…. If the applicant desires to depart in any significant respect from the outline permission or the conditions annexed to it, he must apply for a new planning permission."
In R v Hammersmith and Fulham London Borough Council ex p Greater London Council (1985) 51 P & CR 120, Glidewell LJ said (at 130):-
"What is necessary where there is an application for approval of detail, there having been an outline permission which specifies a number of purposes or uses, is to decide, to use Lord Denning MR's words at the beginning of the passage I have just quoted, whether the application is 'within the ambit of the outline planning permission.' If, for instance (which is not this case), the application for approval of detail shows some added uses, it will often be easy to say: 'That is not within the ambit of the outline'. But where the application for approval of detail omits one or more of the uses, it seems to me to be more difficult to decide the question."
"Whether there can legally be a division of five buildings, which have been constructed as five shops but never used as shops, into 70 shops without there being any development of land may still be argued. It will involve asking whether the shop is used as a shop merely because it has been erected as a shop. It will be for Bolsover to consider this problem if this problem presents itself. It seems that certainly the present intention of BAA is to subdivide without there having been any use of the units as shops if use connotes the actual offer of goods for sale. However, as was argued for BAA, it is only possible with the objective approach which is required to consider the problems created at each stage of construction or change."
"This is not a field in which technical rules would be appropriate, … The planning authority must simply deal with the application procedurally in a way which is just to the applicant in all the circumstances. That being so, there is no good reason why amendment of the application should not be permitted at any stage, if that should prove necessary in order that the whole merits of the application should be properly ascertained and decided upon. There is, however, one obvious limitation upon this freedom to amend, namely that after the expiry of the period limited for application for approval of reserved matters … an amendment which would have the effect of altering the whole character of the application, so as to amount in substance to a new application, would not be competent. In this context it is to be noted that section 40(7)(b) of the Act 1972 provides: 'an application for approval of a reserved matter, if it is made after the date by which the conditions require it to be made, shall be treated as not made in accordance with the terms of the permission.' This makes it clear that application for approval of all reserved matters must be made before the date fixed by the conditions. So an application which dealt with some only of the reserved matters could not competently be amended after that date so as to deal also with others."
"(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.
(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and –
(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and
(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.
(3) Special provision may be made with respect to such applications –
(a) by regulations under section 62 as regards the form and content of the application, and
(b) by a development order as regards the procedure to be followed in connection with the application.
(4) This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun."
"The statute, in section 73(2), does confine the local planning authority to considering only the matter of the conditions on the permission. That may, with some conditions such as a noise level condition or an hours of work condition, appear to confine the authority's consideration within a relatively narrow compass, although even then it is to be recognised that the planning authority is still able to consider the conditions as a whole and not merely the one or two which the applicant may wish to have varied. But when the condition in question is one imposing a time-limit for application for approval of reserved matters or for beginning development, the scope of matters to be considered in relation to conditions will be defined, in effect, by the question: should this planning permission be allowed to continue in force for a period of time beyond the original dates contemplated? That is, to all intents and purposes, the same question which arises on a renewal, however that renewal is sought. And the Secretary of State's guidance in renewal cases, such as in paragraph 60 of Circular 11/95, would be relevant. It is potentially a question which may go to the principle of a development to be judged in the current situation at the time when the application for variation is under consideration."
"15. … He accepts the Inspector's reasoning and conclusions, that at the time permission 97/326 was granted, the proposals were in clear conflict with the relevant policies and provisions in the development plan …; with national policy guidance in PPG6 and PPG13 on the location of large scale retail development and in relation to the failure to comply with the requirement to adopt a sequential approach to site selection … He further agrees with the Inspector's appraisal of the likely retail impact on nearby town centres … and he has no doubt that whether in the form of 5 retail warehouses or a factory outlet village, the development of 11,613 sq m of out-of-centre retail floor space would materially harm the vitality and viability of the centres of Truro, St Austell, Newquay and Bodmin and undermine the strategy for future investment in these and other town centres in Cornwall. In his view, the development would thereby undermine the aims of national and local policies to sustain and enhance existing town centres.
16. Turning to the issue of need, the Secretary of State concludes that there is no need for a development of five retail warehouse units, nor any requirement for such units to be sited at this out-of-centre location, for the reasons given by the Inspector… In his view, the same considerations on need would have applied to the five non-food retail units granted permission under ref 93/01385 if this had not been time-expired. In relation to the proposed factory outlet village, he accepts that such a facility in the County would widen the range and choice of quality comparison goods for Cornish residents and thereby meet a qualitative need. However, for the reasons given by the Inspector …, he is satisfied that the potential exists to meet any such need in a number of alternative, more central locations which would be consistent with the objectives of national policy guidance for sustaining and enhancing town centres. He accordingly finds no justification for the facility to be located at Victoria. These considerations would also have applied to the permission 94/00579, if this had not been time-expired. In reaching these conclusions, the Secretary of State notes the Inspector's view … that there has been little change in Government policy on large-scale retail developments since 1997. However, he considers it also necessary to take into account the Parliamentary statement made on 11 February 1999, …, which was intended to add to and clarify the guidance in PPG6, particularly in relation to the requirement for proposals in edge-of-centre or out-of-centre locations, which are not in accordance with the development plan strategy, to demonstrate both the need for additional facilities and that a sequential approach has been applied to site selection. That statement also recognised the need to search for sites in centres appropriate to the catchment the development seeks to serve.
17. Finally, the Secretary of State agrees with the Inspector's conclusion … that there is no evidence of there having been any material considerations taken into account at the time the permission was granted which would have outweighed the clear policy conflict…."
"5.15 … that there are fundamental flaws in the siting, design and external appearance of the proposed buildings and the means of access thereto in both of the schemes which are the subject of the reserved matters applications. The failure of both proposals to reflect the character of the area conflicts with Policy ENV12 of the CSP and Policies 6 and 51 of the Deposit Draft BRLP and the failure to make satisfactory provision for pedestrians and cyclists conflicts with Policy TRAN5 of the CSP and Policy 81 of the BRLP.
"5.16 Furthermore, the cramped form of both of the schemes and the unsatisfactory servicing arrangements could worsen problems of congestion at the A30/B3274 junction, likely to result from either a 'non-food shopping village' or 5 retail warehouses, and lead to 'rat running' through Roche, by impeding the flow of traffic using the estate road."
|Abnormal costs (agreed)||1,124,000|
|Divided by 123,022 sq ft ITMS||32.43|
|125,000 sq ft @ £32.43||4,053,750|
|Catchment (general & local)||+ 20%|
|Differences in time & planning||+ 5%|
|Effect of Trago Mills||nil|
|Deficiencies of site||- 12.5%|
|Net adjustment||+ 12.5%||506,719|
|Deduct: abnormal costs (agreed)||780,947|
|Deduct: parking deficiency, 2.5%||94,488|
|Deduct: uncertainties, 40%||1,474,014|
"I consider that it is appropriate that my valuation should be in accordance with rule 2 of section 5 of the 1961 Act and I have adopted the basis of Open Market Value as defined in the RICS Appraisal and Valuation Manual, …"
As it happened, Mr Ovenden's adoption of the Red Book definition of open market value (which differs from the statutory definition as explained in case law) did not have any practical consequences in this reference. I draw attention, however, to the need for considerable caution in this respect and repeat the observations I made in Yorkshire Traction Co Ltd v South Yorkshire Passenger Transport Executive  RVR 67 at para 67:-
"I would add that as a general rule I think it unlikely that the Red Book has any part to play in the valuation of land acquired on compulsory purchase. The definition of open market value in the Red Book is not the same as open market value in rule (2) as explained by the courts and in this tribunal. I would urge valuers engaged in the assessment of compensation to look first at the statutory compensation provisions and the substantial body of case law and only to have recourse to the Red Book to fill any gaps in compensation law and practice (as in Shevlin). Even then great caution should be exercised when applying the Red Book to compensation, a subject which it is not intended to cover."
Depreciation in land value
"To qualify for compensation a loss suffered post-resumption must satisfy the three conditions of being causally connected, not too remote, and not a loss which a reasonable person would have avoided. A loss sustained post-scheme and pre-resumption will not fail for lack of causal connection by reason only that the loss arose before resumption, provided it arose in anticipation of resumption and because of the threat which resumption presented."
DATED: 9 August 2004
(Signed) P H Clarke