This is a reference for the determination of the amount of disputed compensation payable, under Schedule 4 to the Electricity Act 1989, to the claimants in respect of losses suffered by them as a consequence of the granting of a wayleave to the respondents for the installation and maintenance of an overhead transmission line over land of which the claimants are heritable proprietors.
The parties disagree as to whether land has been sterilised as a consequence of the presence of pylons and overhead transmission lines across the subjects. The claimants assert that areas of land within particular distances from the transmission line were otherwise capable of residential development. They claim loss on the basis that these areas (so far as not already designated for landscaping) cannot be sold for residential development and are thus sterilised. The respondents do not dispute the level of value of these areas for residential use but assert that any disturbance is restricted to a requirement to permit access to the pylons and overhead transmission lines. They deny that there is any further loss of value than that.
In the particular circumstances, and on the evidence led in this particular case, the Tribunal has decided that although there was no bar to housing development within the areas covered by the claim, the practice of house-builders at the relevant date was such that some corridor or ‘cordon sanitaire’ would have been left, and that accordingly there was some sterilisation in the sense contended for. The Tribunal accepted that the areas covered by the claim would otherwise have been developable, but restricted the extent of the claim to the areas (so far as not already designated as landscaping) up to 12 metres from the centre line of the transmission lines, and awarded compensation on that basis.
On 3 September 1998, the Secretary of State for Scotland granted an application by the respondents’ predecessors, in terms of paragraph 6 of Schedule 4 to the Electricity Act 1989, for an indefinite wayleave to keep installed a 275 kV electricity transmission line over land at Chapelhall, North Lanarkshire (‘Dunalastair’), owned by the claimants, and for necessary access for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing that electricity transmission line.
Paragraph 7 of Schedule 4 of the Electricity Act 1989 provides:-
“(1) Where a wayleave is granted to a licence holder under paragraph 6 above –
(a) the occupier of the land; and
(b) where the occupier is not also the owner of the land, the owner,
may recover from the licence holder compensation in respect of the grant.
(2) Where in the exercise of any right conferred by such a wayleave any damage is caused to land or to moveables, any person interested in the land or moveables may recover from the licence holder compensation in respect of that damage; and where in consequence of the exercise of such a right a person is disturbed in his enjoyment of any land or moveables he may recover from the licence holder compensation in respect of that disturbance.
(3) Compensation under this paragraph may be recovered as a lump sum or by periodical payments or partly in one way and partly in the other.
(4) Any question of disputed compensation under this paragraph shall be determined by the [Lands] Tribunal [for Scotland]; and … sections 9 and 11 of the Land Compensation (Scotland) Act 1963 shall apply to any such determination.”
The claimants have referred the question of disputed compensation to the Tribunal. The respondents are the owners of the beneficial interest in the relevant wayleave as licence holders, as statutory successors to Scottish Power UK plc (formerly Scottish Power plc).
The claimants’ contention that developable land in the areas covered by the claim would have had a value at the relevant date of £130,000 per acre was not disputed at the hearing. Parties were agreed that compensation should be a lump sum, based on the grant of a permanent wayleave.
The issues may be summarised as follows:-
Venables v The Department of Agriculture for Scotland 1932 SC 573
Horn v Sunderland Corporation  2 KB 26
Turris Investments Limited v The Central Electricity Generating Board 1981 258 EG 1303
Macleod v National Grid Company plc 1998 2 EGLR 217
The claim was heard at a hearing on 9 to 12 December 2002 and 27 January 2003. The claimants were represented by Mr S L Stuart, Advocate and the respondents were represented by Mr J W McNeill QC.
Both sides lodged documentary productions in addition to leading oral evidence.
The claimants called five witnesses, viz:-
The respondents called three witnesses, viz:-
The Tribunal also made site inspections of the subjects and of other developments, referred to in evidence, carried out in proximity to overhead transmission lines.
The facts which do not appear to be in dispute are as follows:-
A 275kV power line was erected between Easterhouse sub-station and Newharthill sub-station in 1965, and over Dunalastair Estate, with the consent of the Secretary of State under the Electric Lighting (Clauses) Act 1899. By a voluntary wayleave agreement consent was given by the landowners at the time to the South of Scotland Electricity Board (the predecessors of Scottish Power plc) to the placing of 4 pylons and 4 spans of the transmission line across the lands of Bailside and Lauchope Farms, Chapelhall. That agreement gave the land owner power to serve 12 months notice to quit to the statutory undertaker.
In 1988 G S Brown Construction purchased a one-third pro indiviso share in the Dunalastair Estate. The claimants subsequently bought the interests of the other two shareholders and are sole owners of the subjects. In 1988 these extended to 83.365 hectares (205.99 acres) later enlarged to 86.113 hectares (212.79 acres) by the acquisition of a railway line traversing the land holding.
The estate was bought in the knowledge that there were overhead lines and pylons located on the subjects. The length of line across the relevant claimants’ land is 657 metres. On the land there are two pylons (XX45 and XX44) and one half of one pylon (XX43). They are 45 metres in height.
The estate had been bought for development with housing and commercial use. On 8 May 1989 conditional planning permission was granted over 42.56 hectares (105.17 acres) of the claimants’ land for the, “Erection of residential development (approximately 800 houses) in outline…”
The overhead transmission line bisects the site on a north-south axis (as does a 26" water main). The land proposed for residential development lay on either side of the overhead transmission line. To the south of this land a proposed distributor road (now Lancaster Avenue) runs in a curve, along the boundary, between two roundabouts.
On 7 October 1994 detailed planning consent was granted for the formation of landscaped open space for the whole subjects. The area given over to landscaping in the detailed consent, as conveyed to the Scottish Greenbelt Company Limited, extended to 8.411 hectares. The area given over to landscaping has been extended between 1994 and the present, to include inter alia some land now claimed to be sterilised. The amount of land now given over to landscaping and recreational use extends to 10.00 hectares (24.71 acres) or 23.5% of the whole area covered by the outline planning consent. That left 32.56 hectares (or 80.46 acres) for residential development and for shops and parking (approximately 0.65 hectares). The net developable area for housing was therefore about 32 hectares (or 79 acres). The landscaping standards were based on those of the National Playing Fields Association and included both active and passive uses of the land. The landscape design took account of the physical features on the site such as the line of the former railway, an area unsuitable for building because of former mineral workings, the water main (which requires a sterilised corridor) and the overhead transmission line.
The landscaping areas are 5 in number. The numbers now referred to are those shown in claimants’ production 3, which are different from those shown in the drawing approved by the planning authority and submitted as claimants’ production 8. Area 2 to the west exploits the railway line as a pedestrian route and provides an active play area. Area 1 to the east is a substantial wooded area over the old mineral workings. Areas 3, 4 and 5 form a corridor along the alignment of the overhead transmission line and the water main. Area 3 to the south comprises a large area for active use including an area with play equipment and a kick-about area lying between the water main and the overhead transmission line. To the north the line of a proposed residential street follows the line of the water main in order to make use of the ground which otherwise has been sterilised for building.
The objective of obtaining these permissions was to enable the claimants to pursue their primary purpose, which was to dispose of the land for development, while retaining the option to develop parts themselves if they wished. After implementing the construction of the distributor road and the landscaping they would be in a position to sell on serviced sites suitable for housing, to the north, and commercial use, to the south. In March 1997 the claimants entered into an agreement with the Scottish Greenbelt Company Limited for the implementation and maintenance of the landscape areas. The claimants paid the Greenbelt Company £188,250 (excluding VAT) over a period of phased development of the landscape areas. When the whole of development is finished and all the public open space has been completed the title to the landscape areas is to be transferred to the Scottish Greenbelt Company.
In December 1992 the claimants sold 3.586 hectares (8.86 acres) of land on the west side of the subjects to Saltire Homes, later referred to as the ‘Saltire’ site. The western part of the distributor road was constructed to allow access to these sites. The claimants’ interest was then reduced by 1.619 hectares (4.00 acres) by the grant of the ‘Raeburn ground’ to a Mr John A Stewart one of the former part owners. That site is part of the 32 hectares of land with outline permission for residential development.
The claimants then sold land on the east side of the subjects and completed construction of the distributor road. In May 1996 4.654 hectares (11.50 acres) was sold to Wimpey Homes Limited (‘Wimpey phase 1’). The proceeds from that sale enabled the distributor road to be completed. In December 1996 1.878 hectares (4.64 acres) were sold to Laing Homes Limited (‘Persimmons phase 1’). In March 1997 the claimants sold 1.700 hectares (4.20 acres) to Turnberry (‘Turnberry’). In July 1997 the claimants sold 1.967 hectares (4.86 acres) to Laing Homes (‘Persimmons phase 2). In January 1998 the claimants sold 1.736 hectares (4.29 acres), including 0.117 hectares (0.29 acres) of land to be used for a roundabout, to Henry Boot Homes Limited (‘Henry Boot phase 1’). In May 2000 a second tranche of land extending to 2.710 hectares (6.70 acres) was sold to Henry Boot Homes Limited (‘Henry Boot phase 2).. In November 2000 a second tranche of 2.180 hectares (5.39 acres) was sold to Wimpey Homes Limited (‘Wimpey phase 2’).
The Raeburn ground, Saltire site and Persimmons’ sites are all at the west side of Dunalastair, well away from the overhead transmission lines. The other parcels are located east of the transmission lines and of the corridor of landscaping running along its alignment. The overhead transmission lines run alongside the land comprising the Henry Boot phase 2 development. The Henry Boot phase 1 site is generally distant from the overhead transmissions lines but, at its northern end, it comes near to the lines and pylon XX44.
The claimants retained four parcels of land within the area having the outline planning permission. There is the small commercial area which fronts on to Lancaster Avenue and is located next to the Persimmons development. Next, there is a large parcel lying between the overhead transmission lines to the east and the Persimmons development and the Raeburn ground to the west. It is bounded on the south by Lancaster Avenue, from which it has access, and to the north by neighbouring residential development. We shall refer to this area of land as ‘Brown West’. Adjacent to the parcel to the east but separated from it by the overhead transmission lines and a corridor of landscaping there is a parcel bounded to the south by Lancaster Avenue, and to the east by a landscaped corridor over the water main, which separates it from the Turnberry site. To the north it is bounded by landscape area 3. It has access through Brown West under the overhead lines, or through the Turnberry site. We shall refer to it as ‘Brown East’. Finally, at the north of the site, there is a triangular parcel of ground lying to the west of the overhead transmission lines and a corridor of landscaping. It is bounded to the west by existing residential development and to the north by a small parcel of land adjacent to the A73 trunk road. Access is from the east through the Henry Boot phase 2 site. We shall refer to it as ‘Brown North’.
On 6 December 1996 the claimants received planning permission for the erection of 45 houses at the Brown East site. The plan showing the layout of these houses in detail indicates a boundary line 5 metres from the centre line of the transmission lines. Two houses are 7 metres from the centre line and others range from 13 to 15 metres from the centre line. Two houses are located about 11 metres from the base of a pylon. In February 1997 the claimants prepared an alternative layout plan for the same site for the erection of 36 houses. The boundary line adjacent to the overhead transmission lines is shown about 20 metres from the centre line and the nearest houses are about 30 metres from the centre line. One house is located about 26 metres from the base of a pylon. Planning permission for the 36 house site was granted on 6 June 1997.
In early 1997 (about the same time as the sale of the 1.700 hectares to Turnberry Homes) Turnberry Homes, jointly with Taywood Homes, expressed an interest in purchasing this site but later withdrew from negotiations.
In July 1997 McLean Homes Scotland Limited offered £2,030,000 for an area of land extending to 5.868 hectares (14.50 acres) within the Brown West site. The area for which they offered was mainly about 100 metres, and no closer than 50 metres, from the centre line of the overhead transmission lines. This offer was not accepted.
Later that year the claimants approached Scottish Power to establish whether an alternative route could be found for the line (with its removal from the subjects) or whether the line could be relocated underground. Scottish Power were unable to offer an alternative route, or means of routing, for the transmission lines. On 26 November 1997 the claimants called upon Scottish Power to remove the transmission line. On 2 February 1998 Scottish Power applied to acquire a wayleave under Paragraph 6 of schedule 4 to the Electricity Act 1989 in order that their equipment could be maintained in position. The claimants objected to that application.
The Secretary of State ordered a Public Local Inquiry that was held in May 1998. The Reporter submitted his recommendation to the Secretary of State, on 22 July 1998, that the wayleave should be granted subject to no dwellinghouse being erected within 50 metres of the centre line of the pylons and overhead lines for reasons both of visual amenity and concern about possible health risk from electromagnetic fields.
In his decision letter dated 3 September 1998 the Secretary of State accepted the Reporter’s recommendation but rejected the need for any conditions. The Secretary of State felt that it would be contrary to the advice given to Government by the National Radiological Protection Board, that there is no firm evidence of carcinogenic hazard from exposure that might be associated with residence near major sources of electricity supply. In addition, the Secretary of State considered that concerns about visual amenity were more properly for the planning authority to consider when determining applications for planning consent on the site.
In December 1999 the claimants received a letter from a divisional manager in the Department of Planning and Environment of North Lanarkshire Council accepting that there was capacity, within the land having outline planning permission, for a maximum of 984 units.
In April 2002 Strathclyde Homes Limited were provided with information about both the Brown East and Brown West sites. It was confirmed to Strathclyde Homes that the Brown East site had the benefit of detailed planning permission subject only to the approval of particular house types. The boundary of that site was shown on plan to be about 5 metres from the centre line of the overhead transmission lines. Strathclyde Homes’ interest was withdrawn following a site inspection and the reason given in writing was, ‘due to the proximity of the overhead power lines’.
The tribunal was referred to the following technical publications:-
The extent of the claimants’ original ownership of land at Dunalastair is shown on claimants’ production 2. Part of this is the land for which outline planning permission was obtained for the development of 800 houses. This land is adjacent to, and forms an extension of, Chapelhall. The distributor road, Lancaster Avenue, connects with principal routes, including the A72 to the east of the site, into the town centre. Honeywell Crescent and Main Street are the nearest pre-existing thoroughfares to the Dunalastair site. They lie to the west of the overhead transmission lines. Encompassed within these streets is a large, high density local authority housing scheme built, probably, in the 1960s.
The houses in this scheme are closest to the overhead transmission lines at the corner of Honeywell Crescent and Main Street, where pylon XX44 is located. Houses there are as near as 12 metres to the centre line. One short terrace of houses is about 16 metres from the base of that pylon. There is ribbon development along the east side of Main Street. The rear gardens of these properties form the western boundary of the subjects at the Brown North site. These properties comprise private homes on individual plots, also probably built in the 1960s. The house near the Honeywell Crescent/Main Street corner is under the overhead lines and about 4 metres from the centre line. This house is also about 16 metres from the base of the pylon.
Main Street continues beyond the corner with Honeywell Crescent to run under the overhead transmission lines where it becomes Biggar Road. This forms a short cul-de-sac between landscape areas 3 and 4, and next to the western edge of the Henry Boot phase 1 site. There are two single storey houses there. One has the overhead transmission lines passing over its garden with the centre line about 12 metres from the building.
On the south side of Honeywell Crescent is a development of twenty houses facing on to the Crescent or grouped round two short culs-de-sac. Their rear gardens form the boundary with the northern boundary of Dunalastair at the Brown West site. These houses have been constructed on land extending to about 1.5 hectares originally owned by the claimants and sold off as individual plots with specified building envelopes. They appear to have been completed in the recent past, but the actual dates are not known to us and the dates of the sales of plots of land were not provided to us in evidence. The nearest house to the overhead transmission lines has a garden boundary 14 metres from the centre line with the building 24 metres from the centre line.
The areas of claim are shown on claimants’ production 9. The areas to the north in the vicinity of the Henry Boot phase 2 site are located between the landscaped area 5 and the lines on each side of the overhead transmission lines drawn at a distance of 21 metres from the centre line. The areas to the south are located between the landscaped area under the overhead transmission lines and lines drawn at a distance of 30 metres from the centre line.
Reference to the planning permissions given as productions shows that some 639 houses have been completed or are under construction on about 22 hectares. The evidence of Mr Baxter was that there was about 30 acres (12.14 hectares) of land, within the area of the original outline planning application, still available for development. If that land were developed at the same density as the already developed land an additional 350 houses could be physically located on that land giving a total for the whole area of some 990 houses. This compares with the figure of 984 mentioned in the planning letter of December 1999. On that basis, the areas involved in the claim would be required for development. There was no indication of any lack of housing demand which might limit development at this location in the foreseeable future.
The respondents referred in evidence to eight locations in Lanarkshire where development of private housing estates had been completed or were still under construction and where houses were constructed in close proximity to overhead transmission lines. Productions were lodged showing the layout of houses on these estates in relation to a corridor represented by the pylons and overhead transmission lines. Lines measuring 21 metres and 30 metres from the centre of the overhead transmission lines were shown. Information as to date and price of some house sales was also provided.
The comparable situations are in the following locations, and were undertaken by the specified developer:-
A brief description of the relevant circumstances at each location follows: -
The 132kV overhead transmission lines run along a green corridor between the rear gardens of adjacent houses. There is a pylon (25m in height) where a change of direction occurs and the overhead transmission lines cross over an estate road between the houses.
Two houses shown on the production map on the estate road and underneath the overhead transmission lines have not been built. One house (No 27), not coloured on the plan, has been built in close proximity to the pylon and the overhead transmission lines. It is 17 metres from the base of the pylon and some 12 metres from the centre line.
Other houses are located at 12 and 17 metres from the base of the pylon
Four houses are located from 12 to 15 metres from the centre line of the overhead transmission lines with gardens from 4 to 10 metres from the centre line.
Twenty four houses have been built within the 21 to 30 metre corridor with gardens closer to the centre line of the overhead transmission lines.
Sales of houses in these locations have occurred over the years 1999 to 2001.
The 132kV overhead transmission lines run on a straight line in a green corridor behind the gardens of houses on the estate. The line crosses two estate roads with houses on either side.
Two houses, not shown on the production map, were under construction in February 2003 in close proximity to the overhead transmission lines.
Houses are located at 17 and 19 metres from the base of a pylon (25 metres in height).
One house has been built 16 metres from the centre line of the overhead transmission lines and another 19 metres for the centre line. In each case the garden is 11 metres from the centre line. One has been built at 17 metres from the centre line with its garden 12 metres from the centre line.
About 20 houses (in rows) have been built within or have gardens within the 21 – 30 metre corridor.
Sales of houses in these locations have occurred over the years 1998 to 2002
The 275kV overhead transmission lines run on a straight line in a green corridor behind the gardens of houses on the estate.
Houses are located at about 27 metres from the base of a pylon.
Only three houses have been constructed within the 21 to 30 metre corridor, at distances between 27 and 29 metres from the centre line of the overhead transmission lines.
A small number of garden boundaries are about 26 metres from the centre line.
Sales of houses nearest the overhead transmission lines have occurred over the years 1997 to 2000.
The 275kV overhead transmission lines run on a straight line in a green corridor behind the gardens of houses on the estate.
One house is located some 40 metres distant from the base of a pylon.
No houses have been built within the 21 to 30 metre corridor. A small number of houses have their gardens a few metres inside the 30 metre line.
Sales of houses nearest the overhead transmission lines have occurred over the years 1997 to 2000.
The 275kV overhead transmission lines run on a straight line in a green corridor behind the gardens of houses on the estate.
One house is about 68 metres from the base of a pylon.
No houses have been built within the 21 to 30 metre corridor.
In the row of about twenty houses built parallel to the overhead transmission lines the gardens are about 26 metres, and the buildings about 35 metres, from the centre line.
Sales of houses nearest the overhead transmission lines have occurred over the years 1997 to 1999.
The 400kV overhead transmission lines run above and along similar lines to the estate roads, with houses on either side.
There are several houses within 16 to 20 metres of the base of a pylon which rests on open space beside an estate road and therefore in front of the houses.
Six houses have been built under the overhead transmission lines with front elevations on the centre line.
Nine houses have been built within the 21 metre line at distances of between 6 to 12 metres from the centre line and with gardens closer to and under the centre line.
There are about fourteen houses which have been built within, or partly within, the 21 to 30 metre corridor.
Sales of houses nearest the overhead transmission lines have occurred over the years 1989 to 1992
The 275kV overhead transmission lines run along a green corridor to the west of the estate.
There are no pylons in the locality of these houses.
The garden boundaries are defined by a line about 24 metres from the centre line and parallel to it.
Only two houses have been built within the 21 to 30 metre corridor, at distances of about 27-28 metres from the centre line.
Sales of houses nearest the overhead transmission lines have occurred over the years 1995 to 1996.
The 275kV overhead transmission lines run along a green corridor to the west of the estate.
There is a pylon at a distance greater than 30 metres from the nearest house.
The houses nearest the overhead transmission lines are built in a row with garden boundaries either a little inside or a little outside the 21 metre line.
Only two houses are, marginally, within the 30 metre line and the rest range in distance from 31 metres to 35 metres from the centre line.
Sales of houses nearest the overhead transmission lines have occurred over the years 1994 to 1995.
Mr Smith explained that the purpose of his company was to sell parcels of land on the Dunalastair Estate to private builders, although they retained the option to develop part of the site themselves. He agreed that development at Dunalastair had been relatively slow because of the time taken to obtain planning consent and to construct site services and the distributor road. However, the sales detailed earlier had proceeded and from 1997 residential development had ensued. That development had not been in close proximity to the overhead transmission lines. It was because of Taywood/Turnberry Homes’ decision in 1997 not to proceed with the purchase of the Brown East site, and an indication from Henry Boot that they would not purchase land within 30 metres of the line, that the claimants sought removal, or relocation underground, of the line.
All the land sold was net developable land, serviced, and with no requirement for additional landscaping beyond that provided for on the detailed landscape planning permission. The cost of landscaping was to be recovered at the rate of £250 per unit from the house developers.
Mr Smith was referred to respondents’ production 2.2 which was the approved plan accompanying the detailed planning consent for 45 houses dated 6 December 1996 in respect of the Brown East site turned down by Turnberry/Taywood Homes shortly afterwards. The claimants had made the planning application. It showed roads and the exact location of six different house types on a layout which allowed for the extension of the road network through the landscaped area under the overhead transmission lines to connect with the developable land at Brown West. The drawing showed the garden boundaries of houses to be 5 metres from the centre line of the overhead transmission lines and with some buildings as close as 7 metres and a number at 15 metres from the centre line. Mr Smith maintained that this application for detailed planning permission had only been to test the area for development. It had been done with the public local inquiry into the alignment of the transmission lines in mind. It was intended to show what effect that stand-off distance would have on development. The proposed layout had therefore been taken up to the edge. He rejected a suggestion that, at that time, the claimants were prepared to develop seven metres from the centre line. He acknowledged that the boundary of the Brown East site offered, later, to Strathclyde Homes was shown 7 metres from the centre line. His company considered 21 metres or 30 metres (depending upon circumstances) to be an appropriate distance from the centre line, and he denied that the selection of these distances was arbitrary. He agreed that the Brown East site was one that the claimants might develop themselves if they wished to do so.
The claimants produced a subsequent detailed layout of the Brown East site in February 1997. It illustrated development with 36 houses, with the boundaries of the gardens adjacent to the overhead transmission lines at a uniform distance of 21 metres from the centre line and with buildings at about 30 metres from the centre line. Mr Smith said that this second plan had been prepared following a withdrawal of interest by Taywood and Turnberry Homes.
Mr Smith said that the joint interest by Turnberry and Taywood Homes in the Brown East site, which he considered to be a natural extension of the original Turnberry site, had been withdrawn because of the proximity of the overhead transmission lines. That was what he had been led to believe. The later offer to purchase land in the Brown West site by McLean Homes had been turned down by the claimants, because it would have sterilised the land remaining between the land offered for and the overhead transmission lines. That remaining land would have an awkward shape and be on a slope; it would be expensive to develop and would be difficult to market.
Mr Smith referred to the letter dated 9 December 1999 from the divisional manager of the department of planning and environment of North Lanarkshire Council written following a meeting he had had with that department. In that letter it was stated:-
“The numbers shown on drawing no. 9CDLP, total 984 which I am prepared to accept but must regard this figure as an absolute maximum.”
This question had been raised as a consequence of the roads authority seeking improvements in respect of the Henry Boot phase 2 and Wimpey developments. The claimants had considered these improvements inappropriate and had considered it prudent to obtain confirmation of an acceptable position in writing.
Although he doubted whether a total of 984 would in fact be achieved, the number of houses was less important to the claimants than the developable acreage. There was no landscaping requirement for the houses additional to the 800 already approved, and, but for the sterilisation of developable land by the overhead transmission lines, this evidence further demonstrated that planning permission would be granted for the 1.497 hectares (3.70 acres) of sterilised land.
Mr Smith said that certain perceptions by the public had caused developers to resist purchase of land for development within a 30-metre corridor of the centre of an overhead transmission line. The public perceived a health risk. They were also concerned about possible diminution in value of houses close to the line, or at least the risk of a failure of value to appreciate in line with surrounding properties. Developers were therefore reluctant to build in close proximity to overhead transmission lines, so avoiding the risk of being unable to sell these houses.
Mr McClure gave advice on land valuation matters to the claimants when negotiations were taking place with the respondents regarding the wayleave for the overhead transmission lines. He considered that the claimants had had to devote more land to landscaping than would otherwise be the case, because of the sterilisation of developable land in the vicinity of the pylons and lines. Without the lines the landscaping would have been distributed throughout the site more evenly and would have been less in extent.
He referred to Guidance Note 1.13(1)(e)(6) in the Red Book, which advised chartered surveyors to draw attention to high voltage cables or electricity transformers in close proximity to a dwelling. The public perception was that higher than normal electro-magnetic fields may affect the marketability and/or future value of a house. In his opinion most surveyors ‘will devalue the ground in the vicinity of such equipment’. He agreed that the Red Book was being updated. He had no experience of the situation where a first purchaser would have to pay a developer’s asking price. He was not involved in advising institutions lending to purchasers of individual houses.
He considered that the distance of 21 metres from garden boundary to the centre line adopted at the Henry Boot phase 2 site, was a reasonable standard to apply to define developable land in the same vicinity but to the west of the overhead transmission lines at Brown North. While housing would not be marketable within the 21 metre boundary the clear evidence for the Henry Boot phase 2 development was that houses built on land beyond that distance were marketable.
Having been advised by the respondents that the sale of land at Brown East and Brown West adjacent to the southerly section of the line had met with resistance, and being of the opinion that that land was more greatly affected by the appearance of the pylons and overhead transmission lines, he considered that a distance of 30 metres from the centre line would define the boundary of land capable of being sold for development. He referred to the reluctance of McLean Homes to offer for land to the east of the Brown East site, near the overhead transmission lines, and the withdrawal of interest of Strathclyde Homes in land there because of the proximity of the overhead transmission lines.
In his opinion houses within the 21 and 30 metre lines would not sell at all.
He referred to the Glasgow and Clyde Valley Structure Plan 2000 which identified a requirement of housing land for 250 units in the Airdrie/Coatbridge area. This requirement was additional to the supply available at Dunalastair.
He observed that suggestions of housing development being slow at Dunalastair could be countered by the fact that developers paid £130,000/acre for land there, which price would allow for an anticipated normal rate of sale of houses. In his opinion £130,000 was the value of the sterilised land at the time of the granting of the wayleave. That level of value reflected the fact that the developable land was supplied with necessary infrastructure and further landscaping was not required. The cost to the claimants of the original landscaping was to be recouped at £300 per unit from each developer.
Mr McClure was referred to the respondents’ productions of plans showing the layout of housing developments in North Lanarkshire where there were pylons and overhead transmission lines. He said that these comparables showed the distances from the centre lines of overhead transmission lines where builders will not locate houses, and the distances from the centre lines where they draw their site boundaries. He had not visited these sites, but relied on the productions. He presumed that these developers would not have purchased land beyond these boundaries next to the overhead transmission lines.
While buildings were located within 21 metres or 30 metres of the centre line he drew a distinction between the qualities of the relative locations, and indicated that such incursion was not typical of the overall layout at any particular location. Where development was at an earlier date than 1998 he suggested that public perception then, of any danger from transmission equipment, was less sensitive. He agreed that there was no detectable difference in prices between houses sold close to and further away from overhead transmission lines on the basis of the information provided by the respondents at the comparative locations, although there were potential anomalies between selling prices and dates of sale. While he admitted the possibility that developers might build within the 30 or 21 metre lines, he thought that there might be a distinction between locations where that occurred, such as Carnbroe, and Dunalastair.
Mr Hutchison spoke principally to his experience with Wimpey Homes with whom he had been a development director for a period of three years from the end of 1998 when he became involved with the Wimpey phase 1 development at Dunalastair. He was involved in the purchase of land from the claimants for Wimpey’s second phase of development. These two phases of development were not close to the overhead transmission lines. Nevertheless, Mr Hutchison was required to confirm this fact to his main board. He had been instructed not to purchase land closer than 35 metres from a building to the nearest point of any pylon or power line. In 1997 the company had laid down a policy that any land acquisition falling within 100 metres of overhead transmission lines or pylons had to be referred to the full board.
In his opinion most builders would not build closer than 30 metres from overhead transmission lines and pylons. He was not aware of any Wimpey development where building was closer than 35 metres to overhead transmission lines and pylons.
Prior to his employment with Wimpey Homes Mr Hutchison had been employed by Lynch Homes as a development manager. In 1995 the board of Lynch Homes had turned down an offer to purchase a phase of Persimmons’ development at Carnbroe because of the proximity of overhead transmission lines. He said that construction had commenced there in 1994 or 1995 and progress on the site had been slow. Since builders did not leave houses completed and unsold this suggested that sales had been protracted over a long period of time. At Lindsay Field, East Kilbride, in 1995 or 1996, Lynch Homes had experienced considerable marketing resistance in respect of houses in close proximity to overhead transmission lines because of the public perception of health risk. He believed that a development by Miller Homes, which went closer to the overhead transmission lines in that location, also met considerable customer resistance, and the developer had to reduce prices.
He referred to the policy which had been adopted by South Lanarkshire Council in relation to overhead transmission lines because of perceived health risks. That authority now required a 52 metre (i.e. 26 metres on each side) cordon sanitaire along the route of overhead transmission lines.
In his present capacity as a development manager with Elphinstone Homes he is involved with a purchase of 54.633 hectares (135.00 acres) of land, with outline planning permission for housing, at Slackbuie, Inverness. His company are seeking to maximise the developable area and are negotiating with Scottish and Southern Energy plc for the under-grounding of overhead transmission lines. They seek this solution because of marketing and amenity issues, and are supported by the local planning authority in this matter.
Mr Finn was involved with both Henry Boot phases of development at Dunalastair. The centre line of the overhead transmission lines is fairly close to the phase 1 development, but more than 30 metres away at its nearest point, at its northern end. There is also a pylon there. He said that pylons have a greater impact than conductors. The remainder of the site was not affected in terms of value by the overhead transmission lines. He considered that the overall price paid for the site would have been affected by the presence at the north end of the overhead transmission lines. The development at phase 1 was successful, and all the houses had been sold and on time. On the northerly part of the site, where the houses were nearer to a pylon and to the overhead transmission lines, there was customer resistance to the purchase of houses. Concerns were expressed about visual impact and effects on health. Various incentives were used to enable sales including supplying blinds (to conceal the transmission system) or supplying carpets and curtains. The value of these items could be £2,000 to £2,500. On occasion the price of a house was discounted. A discount of £3,000 on an asking price of £115,000 was 2.5%.
In 1997 Henry Boot purchased phase 2 extending to 2.711 hectares (6.7 acres). They were encouraged to do so because of the success of phase 1, even although phase 2 was located nearer to the overhead transmission lines than phase 1.
Henry Boot proposed a layout with a boundary 21 metres from the centre line of the overhead transmission lines and with buildings 30 metres from the centre line. This proposal was put to the local planning authority. Mr Finn understood that the planning authority consulted the respondents on that proposal. Neither had any objection. Consequently Henry Boot made an offer to purchase land from the claimants up to a boundary determined by a line 21 metres from the centre line of the overhead transmission lines. The purchase was of net developable land. For each unit the developer was required to pay to the claimants £300 for landscaping costs.
The purchase was concluded in May 2000 at a purchase price of £965,000. Mr Finn explained that if any land closer to the overhead transmission lines was included in a sale of land it would be accounted for at nil value. If the land had not been so close to the overhead transmission lines Henry Boot would have been prepared to pay more. As it was the price offered was discounted to some extent in anticipation of the selling prices of houses nearer to the line being less than those further away. This discount was taken into account in assessing the price to be paid for the whole site. He said that houses closer to the centre line than 30 metres would be very difficult to sell.
He said that sales at the phase 2 site had progressed as anticipated. All the houses had sold.
Speaking in general terms he said that developers’ reluctance to build in proximity to overhead transmission lines was also conditioned by the risk of bad publicity about health scares, particularly if a company’s own site received exposure.
Mr Finn was of the opinion that in a high value area, with planning approval and given that sales were practical, then his company might develop within 15 metres of the centre line of overhead transmission lines. But they would not do so at Dunalastair.
Mr Finn said that Henry Boot were in the process of withdrawing from house building and that the undeveloped northerly section of their phase 2 site had been sold to George Wimpey West Scotland Limited. He said that Henry Boot had considered purchasing land at Brown North to the west of phase 2 on the other side of the overhead transmission lines.
Mr Heath was involved with Turnberry Homes’ development, from 1997, of 1.700 hectares (4.20 acres) of land at Dunalastair. The houses they had built there had sold very well. In 1998 his company considered purchasing land at Brown East, but decided not to proceed. The two reasons for not proceeding were the public perception of health risk and the visual intrusion of the pylons and the overhead transmission lines. The transmission line at Dunalastair is a major one, and therefore particularly intrusive.
He would not recommend purchase of land for house building, even garden ground, closer than 30 metres from the nearest cable (not the centre line). That had been his company’s policy for the last eight years. He would only pay for the net developable area. There was no landscaping requirement within the Turnberry site. A charge of £300 per unit was levied for off-site landscaping and that cost was deducted from the price paid for the land. He would not purchase a marginal site close to overhead transmission lines. He had previously considered Brown East a marginal site, but would consider purchase now, although he would not take land closer than 30 metres from the overhead transmission lines. He would wish a buffer landscape zone, to screen off the line with trees, to be planted; although he would expect that to be done by others, and not be a cost on the development.
He was of the opinion that the Brown East site will be developed. Subject to his company’s criteria in respect of a sterilized zone along the overhead transmission lines he would recommend purchase today at around £740,000/hectare or £300,000/acre.
He considered his company’s policy in respect of the purchase of land in proximity to overhead transmission lines was also common to other development companies. He did not consider that any developer had built directly under overhead transmission lines in the last ten years, despite electricity industry advice that it was safe to do so.
Turnberry Homes have purchased a site at Renfrew for £840,217/hectares (£340,000/acre) where, after consultation with Scottish Power, they may develop land up to 20 metres either side of the overhead line, or from the closest cable. There are planned to be 109 units on the site of which five, 3-bedroom semi-detached houses, will be constructed 20 metres from the nearest overhead line. The closest a plot will be to a pylon is 31 metres. However, they hope that the overhead transmission lines may be placed underground.
Ms Menzies had been involved in the negotiations with Mr McClure, on behalf of the claimants, in respect of compensation for the grant of the wayleave. These negotiations had continued from 1997 until a few months prior to the hearing. Previously the claim had been advanced on the basis of compensation for loss of land plus diminution in value of adjacent land due to injurious affection. Latterly the claim had been advanced on the basis of sterilisation of a zone of land prescribed by reference to distances from the centre line of the overhead transmission lines. Negotiations had broken down leading to this reference to the Tribunal.
The respondents would have preferred a servitude, of 30 metres width, in order to obtain an heritable right. 30 metres was a normal requirement although they could narrow that corridor if necessary. Developers usually worked with the respondents to arrange landscaping along the wayleave. It was unusual to have, as here, a claim for diminution in the value of adjacent land.
Ms Menzies instructed INGENCO Limited to provide layout plans of several estates in North Lanarkshire, which she had selected, for the reason that they had been developed about the time relevant to this claim, showing the location of houses with respect to overhead transmission lines. The information contained in these drawings had been obtained from the Ordnance Survey. By a layering process detailed layouts of developers’ sites from geographical information systems had been added. That information had been supplied by the respondents’ data management department who in turn received it from builders as detailed arrangements were made for electricity supply to completing housing developments. Finally each plan had shown on it lines at 21 metres and 30 metres from the centre of the overhead transmission lines.
Ms Menzies had obtained the selling prices and dates of sale of houses from the Interactive Scottish Property Online Information Service, provided by the University of Paisley. This information was provided as lists and was also shown on the layout plans with reference to house type and location.
From an analysis of this information Ms Menzies concluded that there was no direct evidence to suggest a reduction in house price as a result of the presence of overhead transmission lines. Since the prices of the same types of house both close to and distant from the overhead transmission lines were the same, she concluded that there was no loss to developers who built in close proximity to overhead transmission lines.
She agreed that delay between completion of a house and its selling date could be a relevant factor, but she did not have that information.
Ms Menzies said that enquiries to the respondents from developers were normal, when technical information such as guidance on the extent of swing on overhead transmission lines would be given. The respondents were not a statutory consultee within the town planning system although local planning authorities did contact the estate department on occasions. She knew of no approach made by the local planning authority in respect of proposed development at Dunalastair.
Mr Blair has responsibilities for the operation maintenance of the claimants’ power systems including overhead transmission lines. He is able to provide information to developers on technical matters such as clearance distances from pylons and lines and information about the electrical influence of overhead transmission lines on any object. The advice given is in conformity with nationally issued guidelines on these matters. He referred to Overhead Line Clearances. These guidelines were solely in respect of the personal safety of individuals.
He had prepared a drawing of the overhead transmission lines at Dunalastair showing how the ground level and the conductors relate. He had adopted a worst case scenario and assumed lower sag under a maximum operating temperature and 45 degree swing distance, although these extreme conditions were unlikely to be experienced. He had assumed a typical height of 8 metres above ground level for housing and had identified those areas below, and to the side of the lines, where the guidelines would be infringed by the location of a typical house. Superimposed on this drawing were those areas between 21 metres and 30 metres from the centre line of the overhead transmission lines which were said by the claimants to be sterilised.
The descriptions and areas on this drawing were agreed between the parties. The drawing shows that none of the land under the northern leg of the overhead transmission lines was within an infringement area. Under the southern leg of the overhead transmission lines there was an area of infringement running as a strip below the middle half of the overhead transmission lines. However, an area of some 0.49 hectares (1.21 acres) between the 21 metre and 30 metre lines was shown as being suitable for use as garden ground.
Mr Baxter said that the local planning authority had neither a local plan nor informal policy in respect to the location of housing relative to overhead transmission lines. He confirmed that the respondents were not a statutory consultee for town planning purposes. Developers were referred to the respondents for technical information and his department could also take the advice of the respondents. He had not been aware of developers’ concerns about proximity to overhead transmission lines when proposed layouts were being submitted to the local planning authority. He said that there were one or two sites in the Coatbridge area where development had occurred within 15 to 20 metres of overhead transmission lines. He gave as examples the Bellway Homes and Persimmons developments at Carnbroe. In the former case the distance between the centre line and a building was 15 metres, in the latter case 20 to 28 metres. These were developments recently completed or still under construction.
He had considered proximity in relation to the Henry Boot phase 2 site at the planning approval stage in 2000. There had been no discussion on the limit of building relative to the overhead transmission lines. The only constraint that he was aware of was the edge of the approved landscaping area.
Regarding the determination of the 800 houses permitted by the outline planning permission, he was unaware of how this had been established. He thought that it may have been connected with a green belt release and a shortfall of 800 houses in the structure plan at about that time. He was unsure as to how the phrase ‘approximately 800 houses’ in the outline permission should be interpreted, although he was of the view that the area covered by that permission was probably capable of accommodating more than 800 houses. In his opinion the actual number would effectively be decided by the aggregation of each decision made on reserved matters. As to the discussions held between the developers and the local planning authority in 1999, from which a figure of 984 houses resulted, he confirmed that that discussion related to a traffic capacity relative to the road network. If an application for housing bringing the total at Dunalastair to 950 were made the local planning authority would be likely to grant it for the reason that all of the land was zoned in the local plan for housing. However, the questions would remain of the physical capability of the land to accommodate that amount of housing and capacity of the infrastructure to support it. He also considered that it would not be unreasonable to increase the landscaping requirements. In his opinion the original master plan for the 800 units could be revisited in that event.
Regarding the permission granted for landscaping at Dunalastair Mr Baxter said that where large areas of green belt were to be developed, as at Dunalastair, then normally the landscaping scheme would be designed to allow for grouping of housing development so that the whole area was broken up visually. There were no criteria for the sizes of individual groups. The landscaping which had been approved had been based on the claimants’ own development brief and master plan. The landscaping observes pedestrian movement desire lines and footpaths are laid out to accommodate these. The use of the abandoned railway line as a footpath at Dunalastair was a pragmatic example. The current standards for play provision for schemes of 30 to 200 houses are 500m2 for play areas and 1000m2 for amenity areas. For larger housing areas additional space should be provided for active recreation or ‘kick-about’ areas.
He confirmed that there had been about six planning applications for development at Dunalastair since December 1999. Since that date the only additional requirement made for landscaping had been the provision of play equipment. This had been provided by the claimants in areas 3 and 5.
For the claimants Mr Stuart submitted that the claim for compensation fell within para. 7(2) of Schedule 4 of the Electricity Act 1989. This was not a claim for disturbance under section 12 (3) of the Land Compensation (Scotland) Act 1963. He referred to Macleod v National Grid Co. plc  2 EGLR 217. The Tribunal member in that case had said that the compensation in respect of a grant of a wayleave had to be made in accordance with the fundamental principle of equivalence as set out in Horn v Sunderland Corporation  2 KB 26. He said:-
“It follows, therefore, that [the claimant] is entitled to compensation for all the loss (that is not too remote), that flows from the grant of the necessary wayleave. This includes direct loss due to the siting of the pylons and line on the land and indirect loss due to the depreciation in value of the reference land that is not under the pylons and the line.”
He stressed that the claimants had mitigated their loss by using the land under the pylons and the lines for landscaped open space. They made no claim for the loss of the land due to the siting of the pylons. The claim was for depreciation in value of land not under the pylons or the overhead transmission lines. He referred to Turris Investments Ltd. V Central Electricity Generating Board 258 EG 1303, where the Tribunal had proceeded on the basis of valuation of the land taken together with injurious affection to the remaining land, for evidence of the correctness of that approach.
Mr Stuart reviewed the evidence given by the claimants’ witnesses in respect of the reluctance of developers to purchase land for residential development in close proximity to overhead transmission lines. This was for the reasons of public perception of health risks and the visual impact of the pylons and towers. The reality of these concerns was manifest in the guidance to chartered surveyors in the Red Book and the reference to public concern in the National Grid Guidance on Development Near Lines.
The evidence was that developers took into account various factors such as the quality of the site, infrastructure costs, anticipated selling prices and also, near lines, public perception of health risks. Where the latter concern meant that they would not be able to sell houses then this would affect their decision as to how close to build houses to the lines and how close to the lines they would purchase land not usable for housing or gardens. The reality of that aversion was evident at Dunalastair where Turnberry Homes had declined to proceed with the Brown East site because of the proximity of the lines. Mr Heath, who had said he might reconsider that site, maintained that his company would not purchase land closer than 30 metres measured from the nearest line. Taywood Homes had withdrawn their interest because of the proximity of the overhead transmission lines. McLean Homes’ offer for land at the Brown West site was limited to a purchase a considerable distance from the line. More recently Strathclyde Homes have indicated that they would not proceed because of the proximity of the line.
Looking at the matter more widely, Mr Finn of Henry Boot and Mr Heath of Turnberry Homes had indicated that their companies would not purchase land closer than 30 metres from centre lines. Mr Hutchison had referred to an instruction from Wimpey Homes not to allow the nearest point of any building to be closer than 35 metres from the nearest point of an overhead line. He had referred to a main board policy of not normally approving land purchase within 100 metres of overhead transmission lines. He also spoke of South Lanarkshire’s policy, in East Kilbride, of establishing a 26 metre cordon sanitaire either side of an overhead line.
Mr Stuart submitted that the evidence supported the claimants’ contention that at Dunalastair it would be difficult to find a buyer prepared to develop and sell houses nearer than 30 metres from the centre line of the overhead transmission lines.
He was critical of the exercise conducted by Ms Menzies who had set out to prove that there was no sterilisation of land for residential development in close proximity to overhead transmission lines. The selection of sites appeared to be partial and she accepted that there could be residential developments located further away from overhead transmission lines than those she had selected. Her claim that the selling houses of prices were not affected was not as useful as the claimants’ evidence that the value of development land, which was the relevant issue here, was affected. In any case, in the absence of information as to how long it took to sell houses after completion of construction, evidence of the ultimate sale was of limited use.
These examples did show, however, that generally builders would not place buildings or site boundaries near to overhead transmission lines. The instances where development was closer than 30 metres were exceptions to that general position. Thus, the evidence of site layout and building positions in the comparables do not detract from the evidence in support of the claimants’ position. Nevertheless, it was only the position at Dunalastair which was relevant.
Mr Stuart addressed the position at the northern part of the Dunalastair site where Henry Boot had purchased no closer than 21 metres from the centre line at their phase 2 site. He submitted that Henry Boot were encouraged by the planning authority to build up to 30 metres from the centre line and to use the remaining 9 metres as garden ground. It was also relevant that the evidence of Mr Finn and Mr Smith was that at the northern part of Dunalastair the pylons and lines were less noticeable than at the southern part. At the northern part the lines ran down a slope and were for that reason less noticeable. At the southern part there was a pylon in the middle of the proposed area for development and the lines were more visible. Accordingly there was a proper basis for maintaining that the extent of marketability to the north was defined by the 21 metre line while that to the south was defined by the 30 metre line.
Regarding the question of the extent of landscaping relative to the number of houses to be constructed, Mr Stuart submitted that the specification of 800 houses in the outline planning permission was unusual. However, 600 had already been built and Mr Smith’s evidence was that the balance available, from 984 houses, of about 380 could be accommodated on the 30 acres still available for construction. That being so there was nothing to suggest that the areas for which the claim was being made would not have been capable of development for housing.
As to whether there might be an additional demand for landscaped areas for housing in excess of 800 units, Mr Stuart submitted that the 22% of land at Dunalastair was considerably more than the 12% which Mr Hutchinson had said was normally expected for residential development. Given that the actual area devoted to housing remained the same for the larger number of houses then no more landscaping would be needed. Mr Smith was of the opinion that no additional landscaping would be required. Any policy subsequent to 1998 should be ignored. Since there was no basis for assuming that additional land would be required for landscaping, and that that land would be in the vicinity of the overhead transmission lines, the basis of the claim was unaffected.
There was nothing in the respondents’ evidence that would justify the Tribunal in not accepting the claimants’ case and their valuation of their loss in the form of disturbance to their enjoyment of their land. Accordingly the Tribunal should award compensation in the amount claimed.
Mr McNeill, on behalf of the respondents, noted that there was no claim in respect of the areas of land used for the pylon bases or under the overhead lines. This was not an area to be sterilised as a result of the operation of the overhead transmission lines. This land was part of a landscaping scheme arrived at after discussion with the planning authority. The claimants were paying £188,000 plus VAT to dispose of the landscape areas and would recoup either £250 or £300 per unit from developers. If 800 or 984 houses were built the claimants’ costs in relation to landscaping would be met or exceeded.
The averment in the Closed Record that, as result of the presence of the overhead transmission lines, more land had been devoted to landscaping than would otherwise have been the case had not been borne out by the evidence. The claim was confined to those areas of land lying on either side of the landscaped areas to the respective distances of 21 and 30 metres from the centre line in the north and the south.
The claim was based on the general contention that developers would not purchase land within 30 metres of the centre line, although it accepts that Henry Boot purchased up to the 21-metre line at their phase 2 site. But Mr Smith accepted that the 30 metre distance was arbitrary. The design brief prepared by the claimants’ architects in 1999 gave no indication that there would be no development under the overhead transmission lines. The detailed planning permission which the claimants applied for in 1996 for Brown East shows the closest elevation of a house at 7 metres from the overhead line.
There were, Mr McNeill submitted, some curious aspects to the claim. Firstly, the claim existed merely because the landscaped area, agreed with the planning authority, did not extend to the line(s) where the claimant now says that there is a restriction on development. Secondly, this was not a case where guidance could be sought from an open market within which precise considerations were known to exist. Thirdly, this was not a case where land had been marketed and failed to find a buyer, or had been disposed of at a reduced price. Fourthly, the Dunalastair estate was purchased as a land bank to be sold off in lots to other developers, albeit with an option to the claimants to undertake some development themselves. He submitted that it could not be said with any certainty whether or not the land the subject of the claim would be developed at some stage in the future. Accordingly it was important to examine the evidence to determine whether any restriction on development existed at September 1998.
Mr McNeill referred to the evidence of Mr Baxter which was that North Lanarkshire Council had no policy, formal or informal, as to minimum distances from overhead transmission lines. Ms Menzies and Mr Blair had confirmed that where a wayleave, rather than a servitude, was taken the only restriction on development related to clearances required in accordance with electricity industry standards. Since that evidence was clear it was necessary to examine the remainder of the evidence to determine with any reasonable degree of certainty that land in close proximity to overhead transmission lines was precluded from use for residential development.
Mr McNeill submitted that the evidence from Mr McClure was of no assistance on this question of the distance from overhead transmission lines that developers would purchase land. The evidence of Mr Hutchison, who was able to speak with insight into the way in which developers operated, was not conclusive on this issue. When he had been employed by Lynch Homes that company had purchased land in proximity to overhead transmission lines. Although he was able to speak to the policy of Wimpey Homes it was equally clear that policy could be overridden, an example being Wimpey’s acquisition of the Henry Boot phase 2 site at Dunalastair. He had agreed in cross-examination that much depended upon individual cases. There was no evidence from these or other witnesses of land being marketed in other locations.
Mr McNeill referred to aspects of Mr Finn’s evidence. Although there had been some problems selling houses at the northern end of the Henry Boot phase 1 site, that company had proceeded with plans to develop 21 metres from the centre line at the phase 2 site. He indicated that land closer than 21 metres might be purchased at nil value and put to open space use. It could be useful to take in land close to overhead transmission lines for open space, to be traded for a housing plot elsewhere in a development. He agreed that 30 metres was an arbitrary figure; he could envisage circumstances where development could occur as close as 15 metres. He indicated in cross-examination that he would consider developing next to the southern part of the overhead transmission lines at the same distance as had been developed at the northern part, although there may be difficulty about selling the houses closest to the line and inducement might have to be offered.
Mr McNeill submitted that Mr Heath’s evidence again demonstrated that there was no industry standard in respect of the distance from overhead transmission lines at which developers would buy and construct houses. Mr Heath remained interested in the site at the southern end of the overhead transmission lines, but his views on distance emphasised the differences that exist among housing developers. His evidence in respect of high value land in Renfrew, where development was to occur in close proximity to overhead transmission lines, showed that much depended upon particular circumstances.
Considering the evidence that particular developers had withdrawn from negotiations to purchase land in proximity to the overhead transmission lines at Dunalastair, Mr McNeill submitted that the McLean Homes negotiations failed because the proposal was not acceptable to the company. Mr Smith acknowledged that nothing was known of Strathclyde Homes. The evidence was that developers would purchase land at Dunalastair and would choose to move in the direction of the overhead transmission lines, ensuring sales on the best sites first.
Mr McNeill submitted that weight should be given to the respondents’ evidence from the comparable situations. Each comparison indicated a willingness of the developer to build closer to the overhead transmission lines than had been suggested in the oral evidence given on behalf of the claimants. Admittedly information was not available as to when land was purchased, although the earliest development was 1997. However, it was significant that Mr Hutchison gave evidence that builders did not leave structures partly finished and unoccupied and were careful to release their developments in small phases. He indicated that dates of sale would therefore reflect date of construction. The evidence from the maps showing the comparative situations was clear: house builders are, and have been, prepared to build in very close proximity to overhead lines.
In his submission the evidence did not disclose that as at the relevant date no developer would have bought land under the overhead transmission lines or within 21 or 30 metres of the centre line. There was no evidence that the land in question was exposed for sale and found no buyer. There was no evidence, therefore, that the relevant land had been sterilised by the grant of the wayleave.
So far as the guidelines in the Red Book were concerned, Mr McClure had confirmed that the content of the relevant section was still under discussion. These guidance notes did not indicate a preclusion of development. They did not offer any indication of what, if any, discount should be applied. While the guidance may be applicable to lending institutions and subsequent house purchasers, it was not applicable to developers as purchasers of land.
Considering all the evidence, Mr McNeill concluded that it did not disclose that the land was unsaleable or unable to be put to beneficial use for landscaping or infrastructure; there was no evidence that the claimants’ asset, the 42.56 hectare land holding with planning permission for housing, had been rendered less valuable by the existence of the wayleave, because the existence of the wayleave had not caused a reduction in the amount of housing able to be placed on the site as a whole; the claimants had produced no real evidence of diminished values, the land had not been offered for sale in the open market and there was no evidence that it had no market value; the claim was unusual and if wayleaves did make land unsaleable then many more claims would have been expected. The claimants’ own expectations when they purchased the land was that the overhead transmission lines would continue to be there and their landscaping scheme took advantage of that, so that there was no effective diminution in value of all of the land.
Mr McNeill submitted that in the whole circumstances the claimants had not shown that the areas of land in respect of which the claim was made, or any part of them, could not have been sold or developed as at 3 September 1998. Any disturbance was restricted to the requirement to permit access to the pylons and overhead transmission lines and a nominal amount of £5,000 would be adequate compensation.
While there was a slight difference in the parties’ analysis of the legal basis of this claim, there was no material dispute about the law. We should record that in our view Mr McNeill was correct to point out that this is a claim under Paragraph 7(1), which provides for ‘compensation in respect of the grant’ of the statutory wayleave, and not a claim under Paragraph 7(2), which provides a free-standing right to compensation open to anyone who suffers damage as a result of the exercise of the right conferred by the wayleave. The claimants, at least in their claim on record, had tended to conflate the two provisions.
At all events, the claimants, as owners of the land in question, are entitled to compensation in respect of any loss which they can establish they suffered as the result of the grant of the wayleave on 3 September 1998, even although the transmission lines were on the land when they acquired it some ten years earlier.
It is important to appreciate that the claimants claim to have suffered loss by sterilisation of certain areas and not by reduction in the value of either these or any other areas of their land. Furthermore, subject to one contention of the respondents, there is no dispute about the value, in the absence of such sterilisation, of any of the relevant areas. The claimed value of £130,000 per acre, arrived at on the basis of sales of nearby parcels of land around the relevant date to builders, was not disputed by the respondents. The evidence was that transactions with builders in relation to the claimants’ land at Dunalastair were on the basis that if the builders took any undevelopable land (an example being land required for a roundabout within the Henry Boot ‘Phase 1’ site) they acquired it at nil value and the purchase price was calculated by application of a rate for the developable land. While it would not be surprising to find some shading in value of areas in the vicinity of the transmission lines, and indeed Mr. Finn’s evidence was that the price paid by Henry Boot for their ‘Phase 2’ was so affected, the claim was not presented on that basis, and no such concession was offered. The primary issue for the Tribunal is therefore whether the claimants have established, on a balance of probabilities, that any areas of ground were sterilised, i.e. could not have been sold at any value, as at the relevant date; and if so, what areas. There is no suggestion that land in such a situation which could not be used for houses (and where there was sufficient landscaping provision) would have any other valuable use.
The contention of the respondents which qualifies their agreement on the land value is that, regardless of the presence of the transmission lines, the claimants did not establish that the claimed areas, or all of them, were developable. There appeared to be two strands to this contention. Firstly, the respondents pointed out that housing development of the Dunalastair land had been slow and it could not therefore be taken as established that all the developable land, i.e. the land which was outside the landscaping areas and the subject of the outline planning permission, would be developed. This was not advanced very strongly at the hearing, and we reject it. We think that as at September 1998, ignoring the issue of the transmission lines, all the land which had the benefit of the outline permission and which was not designated as landscaping, had development value. At best for the respondents, development might be some way in the future.
The second suggestion in support of the contention that the claimed areas might not all be capable of development was that the planning authority might not allow as many houses as the claimants wished, or at least not without more landscaping. We reject this also. While it is true that the outline permission granted in 1989 was, perhaps slightly unusually, for ‘approximately 800 houses’ and the claimants were, as time went on, looking for rather more than that amount, the planning authority, by December 1999 at least, had accepted a maximum capacity of 984 units. The evidence was that overall development was proceeding towards a figure well in excess of 800 but somewhat below 984. As regards landscaping requirements, in June 1999 the authority adopted a new policy in relation to landscaping, which may have led to a more critical look on the occasions of subsequent detailed applications at the provision of open areas, leading to further discussion and some possible effect on the number of houses. In December 1999 a planner (who was not himself called to give evidence) referred in a letter to Mr Brown to wanting to see ‘improvements to the present arrangements’ in relation to open space. These suggestions of a possible change in the planners’ attitude are not in our view sufficient to cast doubt on the position as regards developability of any of the ground outside the designated landscaping areas, at least at the relevant date. We therefore accept that, again ignoring the issue of the transmission lines, all the land included in the claim was, at the relevant date, land with housing development value.
What the claimants have failed, in our view, to establish, is that there was any bar to housing development close to the lines (except obviously within the footprints of the pylons and in so far as the respondents’ safety regulations prohibited building). We were told that South Lanarkshire Council and East Kilbride District Council each instituted local policies in the mid-1990s which was, at least in releasing green field sites, to sterilise a corridor up to 26 metres on either side of the centre line. North Lanarkshire Council had no such policy, either formal or informal, and tended to either consult with Scottish Power or leave it to the applicants to do so. In relation to the Henry Boot ‘Phase 2’ planning application, Mr Finn said in evidence that he understood that a planning official had approached Scottish Power and been told that they were looking for a ‘21-metre stand-off’. We, however, accept the respondents’ evidence that they had, despite enquiry, been unable to trace the source of any such advice, which would not have been in accord with their position. The fact of closer development at what to us appeared a similar site at Carnbroe also suggests that this was a wrong understanding of the respondents’ position. It may be that the position was, as it was put in Mr Finn’s written precognition, that Scottish Power indicated that there was no objection to the proposal to build up to 30 metres with garden ground up to 21 metres.
However, the claimants are entitled to try to establish that, even although there was no absolute bar, at the relevant date some land beyond the landscaping areas was effectively sterilised because no-one in the market would purchase it (or at least, if a builder took such land which was, because of the proximity of the transmission lines, not in practice capable of valuable development, the price would not reflect any payment for that land). The claimants sought to establish that position by leading the evidence, rehearsed above, of three experienced housebuilders, together with the evidence of their own Mr Smith, which included some indication of negotiations in relation to land at Dunalastair, and of Mr McClure, a chartered surveyor.
Put very generally, the evidence of Messrs Hutchison, Finn and Heath was that in recent times there has been a growing public perception of a health risk from electricity transmission lines, which has led to increasing customer resistance to purchasing new houses in close proximity, which in turn affects builders’ willingness to purchase building land. While housebuilders in the past were prepared to develop even immediately under transmission lines, they will not, it was said, now do so. Builders had a wary eye on publicity on the issue. There was mention not only of difficulty in selling the houses, but also of some worries about possible claims in the future. Various distances from the lines were suggested. The evidence naturally touched upon the specific situation at Dunalastair, with which each of these witnesses had had some involvement, but also referred in quite general terms to the policies of the companies with which they had been involved and of housebuilders generally. We think it was, however, accepted that there was no blanket general standard and also that different builders would behave in different ways. In a large greenfield site such as Dunalastair, the general tendency would be to develop towards the lines, building on successful development and sales in the areas further away, in the knowledge that the situation close to the line would be likely to be more difficult.
To this evidence, the respondents added evidence in a different form, involving consideration of the actual experience at sites affected by overhead lines in four other areas. It was contended that these locations showed housing development in the vicinity of transmission lines and sale prices extracted from searches of the Register indicated that there was no significant price difference. We would mention in relation to this evidence that while in the most general terms it tended to suggest that houses were being sold, the evidence was, understandably, not in sufficient detail to enable any clear conclusions to be drawn about price comparisons. It was only really inference that houses compared were of the same type (although our site inspections enabled us to get some more impressions about that); there was no evidence of how long houses had been on the market and no readily discernible pattern in relation to that; we did not feel it was always clear that sales listed were first sales; and there was no evidence of general house price movements over the periods in question, which made it difficult to reach conclusions on comparisons between sale prices on different dates. Moreover, there was no evidence of land sale prices, or of the extent of areas actually purchased for value, at these other sites.
While the existence of transmission lines, and more especially pylons, would obviously be an amenity factor of some importance, we do not consider that it is a factor of significance in considering the issue of sterilisation, as opposed to reduction in value. The effect on visual amenity will increase with proximity to the line, although there may be situations in which a house nearer the line with a rear aspect to the line may be less affected than a house say on the other side of the street whose frontage is affected visually, but we do not think there is any point of proximity at which the visual aspect will itself preclude building.
However, on the evidence and in the light of our own inspection of the various sites, we have no difficulty in accepting that current house-building practice is to leave some corridor or ‘cordon sanitaire’, which no doubt reflects the increasing public perception of possible health risk spoken to by the witnesses. At Dunalastair, the extent of landscaping areas sited underneath and around the lines is itself suggestive of this. The modern housing development to date, in particular the two Henry Boot sites, supports it. At each of the comparison sites apart from the Baillieston site, which was developed in the late 1980s, the immediate visual impression is of some corridor, even where, as at Carnbroe, there is new development on both sides of a line with an estate road running underneath the line. There is, in our view, no evidence to the effect that around the relevant date builders would purchase land for housing development at Dunalastair without allowing for at least some corridor. At Dunalastair, on the evidence available, if builders were to take any land closer than they would use, including as garden space, they would not pay for it. As we have indicated, we do not know the position at the other sites relating to the extent of areas purchased.
Such a corridor is not necessarily one with straight lines and therefore, again, gives no guide to any standard observed in the industry. Boundaries of land used for housing with gardens are often irregular relative to the straight lines of the overhead transmission lines, and apparently depend on topography, road layout and other such factors.
That leaves for us the difficult issue as to the extent of land sterilised in this way at Dunalastair at the relevant date. Did it extend at all outside the landscaped areas which are not included in the claim, and if so how far? On the available evidence, we can only deal with the issue on the basis of a straight line.
On a consideration of all the evidence, the view which the Tribunal has reached is that we do not accept that the areas sterilised in the manner contended for, as at September 1998, were as large as contended for by the claimants. We have reached the view, on a balance of probabilities, that as at that date the land which was sterilised in the sense that it could not be sold as developable land (including use as garden space), extends to 12 metres on either side of the centre line of the transmission lines.
As far as our assessment of the site is concerned, we first of all record that we were not persuaded that there was a material difference between the southern part, where the claimants claim 30 metres, and the northern part, where the claim is 21 metres. Having had the opportunity of inspecting not only this site but various other developments, and appreciating the difference in relation to topography between the two parts of this site, we do not accept that housing development is any more precluded at one part than at the other.
In 1998, unlike in South Lanarkshire, there was no planning constraint on house building in the proximity of these lines. Companies such as the claimants may acquire very large areas of development land, such as the whole Dunalastair site, with a view to development over quite a number of years or even to an extent as a ‘land bank’, and in that situation may have some degree of concern about future planning policies. The picture we have, however, of the purchase of smaller parcels of land at Dunalastair and other sites, is that the builders purchase for immediate or more or less immediate development. Such hypothetical purchasers, therefore, must be taken to know and rely on the relevant current local planning policy. To this there must be added the fact that in December 1996 detailed planning permission had been obtained in relation to the ‘Brown East’ site, involving a boundary line as close as 5 metres from the centre of the transmission lines, with actual building up to 7 metres.
There is also evidence of actual recent development at Dunalastair – at Honeywell Crescent – with a garden boundary up to 14 metres from the centre line.
Further, there is no indication, even now, of any alternative treatment, actual or planned, of the claimed areas of sterilisation. Mr Heath gave in evidence that, if he were purchasing, he would wish a buffer landscaped zone, providing an extent of screening off of the lines. There was no indication from the claimants of any plan to do anything of this sort outside the planned landscape areas – there is nothing on the ground to prevent development within the claimed areas.
There is of course evidence on the site of one developer, Henry Boot, purchasing a site no closer than 21 metres from the centre line, in April 2000. We accept that that is an indication of one builder’s position, some 18 months after the relevant date, and the fact that they may have misunderstood the respondents’ position does not completely negate Mr Finn’s evidence about the position at Dunalastair.
In considering whether there may have been a market in 1998 for land at Dunalastair including any or all of the areas claimed, we have derived particular assistance from the situation at Carnbroe. Of the four comparison areas, Baillieston does not appear to us to be of much assistance because the relevant land sales there must have been around 1989 at the latest. We accept that the adverse public perception, leading to acceptance of the necessity for at least some cordon, has developed in more recent years. That leaves Carnbroe and the two (former) New Town areas, Blackwood, Cumbernauld, and Greenhills, East Kilbride. It appears to us that Carnbroe, which is only some four miles away, and also within North Lanarkshire, provides a better comparison than the two areas which represent outward expansion of the two New Town areas. Although Cumbernauld is also now within the North Lanarkshire area, we think that the areas to which we have been referred in both Cumbernauld and East Kilbride exhibit planning, presumably as part of planned New Town development, which shows greater use of open spaces. Carnbroe seems to us a more comparable situation. Whether that is right or wrong, it is clear that at Carnbroe there has in recent years been housebuilding very much closer than 21 metres from the centre line. We refer to our detailed findings above on that. We appreciate that the transmission lines at Carnbroe are of lower capacity, but that does not seem to us to be a factor of much significance. We are not otherwise able to draw any distinction between the two housing development areas.
We have not been persuaded by the claimants’ evidence of their marketing activity that there would be no other builders in the market for developable land within their claimed sterilisation areas. Mr Smith described discussions, and produced correspondence, with some other builders, including Taywood Homes, McLean Homes and Strathclyde Homes, in addition to the evidence of Messrs Hutchison, Finn and Heath. The evidence was, however, that there is no consistent standard among house builders. While we can understand that marketing of parts of a large ‘green field’ site like Dunalastair may typically proceed in an informal and gradual fashion, the fact is that there is no evidence at all of any advertisement for sale of any site including any of the claimed areas of sterilisation. In that situation, when we have found recent house building, in closer proximity to overhead transmission lines and pylons, at what seems to us to be a similar site nearby and within the same planning area, and there was no practical obstacle at Dunalastair to closer building, we are not able to conclude that all the claimed areas had no market value at the relevant date.
In all the circumstances, having accepted that as at 1998 the market did require a cordon of sterilisation, we find that the extent of that of which we can be satisfied at Dunalastair is 12 metres from the centre line of the transmission lines. That figure of course allows for garden spaces, which would require to be purchased by the builder: actual house building might well be at a slightly larger distance away from the lines.
We should emphasise that this is a decision in relation to this particular site, at the relevant date, on all the material before us.
The Tribunal issued a draft decision and requested parties to reach agreement on the area, excluding the landscaping areas, covered by a corridor lying 12 metres on either side of the overhead transmission lines. The parties have helpfully agreed that the area of land sterilised on that basis is 0.298 hectares (0.737 acres), and also that the compensation payable to the claimants is accordingly £95,810. We have so ordered.
The question of expenses is reserved pending the receipt of written submissions.