These are conjoined applications under section 14(1) of the Land Compensation (Scotland) Act 1973 (“the Act”) to determine the amount of compensation payable for the depreciation in value of four dwellinghouses in Coupar Angus, consequential upon the construction of the A94 Coupar Angus Relief Road which was opened in January 1997, and arising from physical factors caused by the use of the by-pass.
The Tribunal determined the total amounts of compensation to be paid in terms of the Act as follows:-
|Klydon House, Union Street||£2,500|
|5 Queen Street||£1,350|
|24 George Street||£2,400|
|56 George Street||£1,300|
The Tribunal had also to consider an issue arising out of the fact that one section of the relief road had been constructed slightly earlier at the expense of a private housing developer in order to provide access to that development. The Tribunal decided that that section did qualify as public works compensatable under the Act when it was opened to public traffic, and accordingly accepted the submission on behalf of two of the applicants whose subjects adjoin that section of the road that they in fact had two separate claims, albeit for the same total amount, with consequences in relation to expenses and interest.
It was not disputed that physical factors in terms of the Act have reduced the value of the subject properties, and neighbouring properties in the vicinity of the by-pass, and that compensation is payable. It is also agreed that the adverse effects of all relevant physical factors can be subsumed within the impact of noise alone, and that the extent of compensation payable shall be 100% of the diminution in value of properties so caused, without any reduction for any deleterious effects caused by non-compensatable factors.
Issues were raised as to whether estimated open market values of certain houses were sufficiently reliable for inferences to be drawn from these figures, which, taken together with certain sales evidence, would represent the extent of diminution in value attributable to the use of the public works. This involved analysis of conflicting evidence from which values had to be determined.
Three of the houses fronted on to parts of the main thoroughfare through the town centre. That trunk route was replaced by the by-pass. There was a reduction of traffic and therefore noise from that source and this had to be taken into account in determining the level of depreciation, but no other issue of betterment was raised.
A separate issue arose out of the claimants’ contention that, in two instances, claims had to be made twice in respect of the separate occasions when sections of road were opened to the public. This arose because a private developer had constructed one section of the relief road earlier, in order to provide access to a housing development. It was claimed that these two applications required separate accounting for the purpose of claiming fees for the preparation of separate claims. This was disputed.
s 1 Right to compensation
(1) Where the value of an interest in land is depreciated by physical factors caused by the use of public works, then … compensation for that depreciation shall, subject to the provisions of this Part of the Act, be payable by the responsible authority to the person making the claim.
(3) The public works mentioned in subsection (1) above are –
(a) any road;
(b) any aerodrome; and
(c) any works or land (not being a road or aerodrome) provided or used in the exercise of statutory powers.
(4) The responsible authority mentioned in subsection (1) above is, in relation to a road, the appropriate roads authority and, in relation to other public works, the person managing those works.
(9) Subject to section 9 below, “the relevant date” in this Part of the Act means –
(a) in relation to a claim in respect of a road, the date on which it was first open to public traffic;
(b) in relation to a claim in respect of other public works, the date on which they were first used after completion.
s 4 Assessment of compensation: general provisions.
(2) In assessing depreciation due to the physical factors caused by the use of any public works, account shall be taken of the use of those works as it exists on the first claim day and of any intensification that may then be reasonably expected of the use of those works in the state in which they are on that date.
s 9 Alterations to public works and changes of use.
(1) This section has effect where, whether before, on or after 23rd June 1973 –
(a) the carriageway of a road has been altered after the road has been open to public traffic;
(b) any public works other than a road have been reconstructed, extended or otherwise altered, after they have been first used; or
(c) there has been a change of use in respect of any public works other than a road or aerodrome.
(2) If and so far as a claim in respect of the road or other public works relates to depreciation that would not have been caused but for the alterations or change of use, this Part of this Act shall, subject to subsection (3) below, have effect in relation to the claim as if the relevant date (instead of being the date specified in section 1(9) above) were –
(a) the date on which the road was first open to public traffic after completion of the alterations to the carriageway;
s 13 Information for ascertaining relevant date.
(1) The responsible authority in relation to a road or other public works shall keep a record and, on demand, furnish a statement in writing of –
(a) the date on which the road was first open to public traffic …
s 17 Interpretation of Part 1
(1) In this part of the Act –
“public works” and “responsible authority” have the meaning given in section 1 above.
“the relevant date” has the meaning given in sections 1(9) and 9(2) above.
(3) In the application of this Part of this Act to a road which has not always since 17th October 1969 been a road –
(a) references to its being open to public traffic shall be construed as references to its being so open whether or not as a road; …
and no claim shall be made if the relevant date falls at a time when the road was not a road and the road does not become a road within three years of that date.
s 80 General interpretation.
(1) In this Act-
‘road’ has the same meaning as in the Roads (Scotland) Act 1984.
s. 151 Interpretation
(1) In this Act, unless the context otherwise requires-
‘private road’ means any road other than a public road.
‘public road’ means a road which a roads authority have a duty to maintain
‘road’ means … any way … over which there is a public right of passage (by whatever means) … ; and any reference to a road includes a part thereof
Horton & Griffin v Worcester County Council (unreported Lands Tribunal LCA/64&66/2001, 15 October 2001).
Hallows v Welsh Office (1995) 70 P&CR 117
Lewars v Greater London Council (1981) 259 EG 500
Noise Insulation (Scotland) Regulations 1975 SI 1975/460 HMSO
Scottish Development Department Memorandum on the Noise Insulation (Scotland) Regulations 1975: Regulations 3 and 6 1975 HMSO
Scottish Office Design Manual for Roads and Bridges: Volume 11Section 3 Part 7 Traffic Noise and Vibration August 1994
Department of Transport - Welsh Office Calculation of Road Traffic Noise 1988 HMSO
The Scottish Executive, The Effect of Road Traffic on Residential Property Values January 2001
The applicants are Frank Robertson and Mrs Sheila J Robertson, in respect of 24 George Street, Coupar Angus; Martin King and Mrs Leila E King, in respect of Klydon House, Union Street, Coupar Angus; Elaine M McKinlay, in respect of 56 George Street, Coupar Angus; and Albert H Croll, in respect of 5 Queen Street, Coupar Angus. They were all represented by Mr R C H Sheridan BSc who himself gave evidence. None of the claimants gave evidence.
The respondents are Perth and Kinross Council as Roads Authority in terms of the Roads (Scotland) Act 1984 as amended. They were represented by Mr R Thomson advocate who led in evidence James Carney BSc MRICS senior surveyor in the respondents’ property management department, John R Martin BSc, CEng, MICE senior engineer in the respondents’ planning and transportation department, Richard Bowdler BSc CEng CPhys FIOA FCIBSE MCIArb, a noise consultant and director of New Acoustics, and Douglas Bowers MRICS, senior valuer, Scotland South East Valuation Office Agency.
The hearing was held at Edinburgh on 20-23 September 2004 and an unaccompanied inspection of the subjects and the surrounding area was undertaken on 6 October 2004.
The claims made by the applicants and the offers made by the respondents as to the proper amount of compensation payable in respect of the diminution in value of the respective properties were as follows. For two of the properties the claims were made in two parts relevant to when separate sections of road were opened to the public.
|Klydon House, Union Street||£17,100||£2,500|
|5 Queen Street||3,800||(83%)|
|24 George Street||14,000||(78%)|
|56 George Street||£6,175||£1,300|
Before Mr Carney gave evidence Mr Sheridan made objection on the grounds that it appeared that two surveyors were to give evidence when only one expert witness should be permitted.
Not more than one expert witness on either side may be heard in cases brought under the Land Compensation (Scotland) Act 1963 (section 9(3)), unless the Tribunal directs otherwise. Additional witnesses may be heard on technical matters. However, there is no such provision in the 1973 Act. It refers to the 1963 Act only in respect of the application of the statutory rules for valuation contained in section 12 of that Act. In cases brought under Part 1 of the 1973 Act it is not unusual to have additional expert evidence given, for example in respect of scientific aspects of the physical factors involved. In the present case the evidence given by Mr Carney was in respect of the background to the claims. Only Mr Bowers gave valuation evidence. The Tribunal allowed Mr Carney to give evidence. Although given leave to do so, Mr Sheridan made no further objection for any prejudice to the claimants’ case for this reason.
In setting out a summary of the facts we do not feel it is necessary to give a highly detailed description of every aspect of the physical circumstances when these are well known to the parties. We were supplied with very detailed productions including maps and photographs and we have carried out an inspection.
Coupar Angus is a small town located on the A94 Perth/Forfar road. It is residential in character with predominately older private housing. The centre of the town is at the former junction of the A923 with the A94 which formerly ran along George Street and Union Street. At this junction, The Cross, there is a modest commercial area. Running parallel to George Street/Union Street, and behind the gardens of the properties fronting on to these roads, is the Coupar Burn. Parallel and immediately adjacent to it is the line of the abandoned Strathmore railway. These physical barriers to the southeast of the town were breached only by the A923 Coupar Angus/Dundee Road. A signal box and other former railway buildings were located beside this crossing point. Queen Street is that part of the A923 running south west from this point through the southern suburbs of Coupar Angus.
24 and 56 George Street and Klydon House are older stone properties fronting on to George Street and Union Street respectively. They have large gardens to the rear bounded by the Coupar Burn. 5 Queen Street, also an older stone built property, is located close to the crossing point of the A923 and the former railway line.
The scheme comprises the Coupar Angus Relief Road. The purpose of the scheme was to divert through-traffic away from Coupar Angus town centre along a new by-pass following the line of the disused railway, about 70 metres south of George Street and Union Street. As well as diverting traffic from George Street and Union Street the scheme provided for the diversion of the A923 along the eastern limb of the by-pass. The effect of this was to locate a new traffic light controlled junction where Queen Street meets the by-pass and to remove through traffic completely from the short section of the former A923, High Street, between there and The Cross.
Physically the new road was constructed in two parts. In 1995 the developer of a housing development, Brodie’s Yard on the site of a timber yard, constructed 97 metres of the road thereby enabling access to his development. This road was completed on 7 November 1995 and was used as a service access to the houses at Brodie’s Yard. The service road was adopted by the local roads authority, and added to the list of public roads, on 11 December 1996. The contract for the completion of the road was carried out between May 1996 and 20 January 1997 when the whole length of the by-pass was opened to the public.
The date of valuation for claims arising from the opening of the by-pass has been agreed as 20 January 1998.
As a result of the construction of the by-pass the houses facing on to Union Street and George Street were exposed to traffic movement and noise from the new carriageway running past the rear of their gardens, separated only by the Coupar Burn. This was a new source of nuisance in the form of traffic noise, street lighting, vehicle lights and dust. On the other hand the volume of traffic, and therefore noise, emanating from the front of their properties, and from the High Street, was reduced. At 5 Queen Street the same volume of traffic passed along the A923 but that traffic now stops and starts at the new traffic light controlled junction. In addition the western leg of the by-pass now presented a new source of noise to the north where it affected the rear of the property.
Figures based partly on an actual and partly on a calculated basis show that there has been a reduction in noise levels of some 20dB in respect of the front facades of the Union and George Street subjects. The noise level at the front façade of 5 Queen Street remained constant. These values were based on calculations carried out in accordance with the recommendations of the Noise Insulation (Scotland) Regulations 1975 or on actual readings taken by New Acoustics in July 2004.
Mr Sheridan made subjective estimates of the pre-scheme noise levels at the rear of the four subject properties, based on similar schemes in similar circumstances.
The difference between before and after decibel levels as calculated by the respondents and estimated by Mr Sheridan are as follows:-
|5 Queen Street||8dB||2dB|
|24 George Street||12dB||5dB|
|56 George Street||10dB||3dB|
Approximately 46 claims for compensation in terms of the Act were submitted. Two agents have been involved in negotiating these claims. Some twenty five settlements of compensation have been made in respect of some of the properties along the line of the by-pass. In 1999 fifteen claims were settled with the Ricketts Partnership in a range from 1%-2.78% of the nominal capital values of the properties affected. Ten claims settled by Mr Sheridan displayed a range of 2.4%-4% of nominal capital value. These various settlements ranged in amount from £380-£2,700. One of these settlements had been made, by the William Ricketts Partnership, in respect of a house known as Denburn located in Union Street immediately next to Klydon House. Against a nominal capital value of £72,000 the settlement amount of £2,000 represents 2.78%.
Agreement could not be reached with Mr Sheridan on eighteen outstanding claims. After some discussion of a joint referral, the respondents employed the District Valuer, who reported to the respondents with a second opinion in relation to five sample cases, in March 2003. The claims, respondents’ offers and District Valuer’s opinions, in respect of the subjects, then bore the following relationships:-
|5 Queen Street||£4,550||£1,350||£1,350|
|24 George Street||£18,000||£2,400||£2,040|
|56 George Street||£6,480||£1,300||£1,300|
Mr Sheridan is an experienced valuer. He has had extensive experience in England of claims under the Land Compensation Act, initially while working in local government and latterly in practice on his own account. He has some familiarity with Coupar Angus through a family connection. He has no expertise in noise measurement.
Mr Sheridan had rejected the opinion of the District Valuer, who he considered had been brought in by the respondents to “add a name to their low figures”.
Mr Sheridan’s evidence was that a sale of Denburn at £70,000 in November 1999, subsequent to the construction of the by-pass, indicated a fall in value of nearly 18% from a ‘no-scheme world value’ of £85,000, rather than the £72,000 previously attributed to it when £2,000 compensation had been agreed. He understood from a conversation with the seller that a ‘fair number’ of prospective purchasers had referred to the noise from the by-pass. He justified his no-scheme value by reference to a comparable dwelling, Strathisla, 1 Blairgowrie Road. That house was just outside the zone affected by noise from the introduction of the by-pass and was therefore indicative of the level of value for properties unaffected by physical factors emanating from it. It had a reduced area of 133m2 in comparison with Denburn which has a reduced area of 234m2 and which was therefore over 40% larger. They were otherwise similar both being on trunk roads and both being ‘cheek by jowl’ with neighbouring properties.
Strathisla had sold for £72,000 in December 1997. In Mr Sheridan’s opinion the pre-scheme value of Denburn therefore had to be higher than that and he attributed a figure of £85,000 to it. Considering that Klydon House was next door to Denburn, was the same distance from the by-pass and was exposed to the same level of noise, he was of the opinion that there should be an equivalent loss in value to that property. A reduction of 18% on a no-scheme value of £95,000 would cause a diminution in value of £17,100.
Mr Sheridan estimated the diminution in value of 24 George Street to be 15%. He based this on a post-scheme sale in January 2002 of this property at £85,000. He understood this property had been on the market for some 18 months, initially at a price of £107,000, and that all the prospective purchasers had commented on the by-pass, particularly in relation to the attractive garden which ran down to the Coupar Burn. Making an allowance for 3% for changes in value between the date of the sale and the valuation date, he applied a cumulative percentage of 18 to an agreed no-scheme value of £100,000 to arrive at the claim figure of £18,000. He described this as a large and spacious house (275m2) with a very nice garden. Like Klydon House and other relatively more valuable properties, he expected a proportionately greater impact on capital value than less expensive properties. This phenomenon had been observed and adopted in Horton.
Accordingly 5 Queen Street and 56 George Street, as lower value properties, should expect to suffer proportionately lower reductions in value from the impact of noise.He considered that the percentage reduction in value was in the range of 3.6%, established by agreement of compensation in the sum of £1,000 against a no-scheme value of £28,000 for 1A High Street, to 18% as proposed by him in respect of Klydon House and 24 George Street. He proposed percentage reductions in capital value of 7% for 5 Queen Street and 11.8% for 56 George Street.
Mr Sheridan pointed to properties which had suffered comparable degrees of loss on account of the scheme. 12A George Street had a no-scheme value of £35,000 having been sold by the respondents’ predecessors in 1991 for £30,000. It had been sold in November 2001 at a post-scheme value of £32,000 (a reduction of 8.6%). 12B George Street had sold in July 2001 for £26,000 (a reduction of 35%) although Mr Sheridan conceded that it was “in a bit of a mess” when presented to the market.
1 Grayburn, Union Street, had not had an agreed no-scheme value (his value had been £50,000 while the respondents’ had been £45,000). It had been sold in April 2001 for a price which he understood to be £44,500 (a reduction of 11% from his estimate of capital value). 2 Grayburn, Union Street, which had not had an agreed no-scheme value (his value had been £48,000 while the respondents’ had been £42,000), had been sold in October 2001 for a price which he understood to be £43,500 (a reduction of 9.4% from his estimate of no-scheme value although his calculation was 10.4%). He had derived his no-scheme values on a consideration of Council Tax bandings with a 21-25% increase since the tax valuation date. Both these properties were in Band D. In April 1991 Band D represented a range of value from £45,001 to £58,000.
In his opinion it was unthinkable that these properties had not suffered a diminution in value as a consequence of the scheme. It was significant that the value of 2 Grayburn had gone down from its no-scheme valuation while there was evidence of a general rise in property values in Coupar Angus. It was a modern, spacious property which overlooked the scheme and which was only 13 feet from the carriageway. The drying area is polluted with diesel specks and dust. In his experience a loss in value would be expected for this type of property in relation to a similar road scheme. In his opinion it had suffered a substantial diminution in value and that supported his estimate of the no-scheme value.
His no-scheme value for Pinewood, George Street had been £45,000. It had sold in May 1998 and therefore close to the valuation date, at a price of £39,000. This again suggested a substantial reduction in value (13.3%) attributable to the scheme.
Mr Sheridan spoke to one other comparable located at 41 Weatherly Drive, Broadstairs, in Kent. He did not seek to make any direct comparison with the subjects here, other than to point out that the nature of the scheme of public works at that location was similar to those at the subjects in that a new trunk road was introduced to the rear causing properties to be ‘sandwiched’ between the new road and an existing road at the front. His reason for introducing this comparable was that it had been a situation where there had been a post-scheme sale of the affected property which could be contrasted with sales at the same date of identical properties not affected by the scheme. In that case the percentage loss attributable to physical factors arising from the use of the works was 15.15%, the total loss being 24.22%.
Mr Sheridan summarised his evidence at this stage by contending that, notwithstanding the evidence of settlements made for similar claims or the evidence regarding levels of noise, the evidence from the sale of Denburn was market evidence indicating the actual degree of loss suffered on account of the scheme. He said that in a dull market the effect of any adverse factor would be exacerbated. He accepted that there was some reduction in noise at the front, but said that this was not too relevant as anyone expects a level of noise at the front of their house. He did not accept that there would be a significant level of noise in rear gardens before the implementation of the scheme.
Mr Sheridan spoke to his Schedule 2 which he contended demonstrated that higher value houses suffer a greater proportional loss due to the impact of noise than lower value houses. It listed details of settlements in Broadstairs, Kent. For increases in decibel of 9 or 9-14 it indicated that percentages of no-scheme values (as a basis for compensation) rose as no-scheme values themselves rose.
He then spoke to his Schedule 3. It listed 20 properties where settlements had been agreed for nuisance caused by noise from public works. The settlements were made in the period 1994 to 2003 and there was a range of decibel increases at various locations in south-east England. No-scheme values and the post-scheme rise in decibels were stated. The settlement as a percentage of no-scheme value was calculated as was the ratio of that percentage to the value of the decibel rise for each property. Excluding two entries where there were direct sales evidence the average ratio was 0.54. By applying this average ratio to his estimate of decibel rise at each of the subjects he derived compensatable amounts as follows:-
|Property||No-scheme Value||dB rise||% No-scheme Value||Amount|
|5 Queen Street||£65,000||8||4.32||£2,808|
|24 George Street||£100,000||12||6.48||£6,480|
|56 George Street||£53,000||10||5.40||£2,862|
In cross-examination Mr Sheridan explained that he had based his claims originally on the application of the ratio of percentage of no-scheme value to rise in decibel value but that he had revised his claims because of the new evidence revealed by the sale of Denburn. He agreed that his no-scheme values had been assumptions. However, once a sale had provided evidence then measurements of noise levels were irrelevant. He did agree that if it could be shown that his estimates of noise level had been wrong and that they were actually less, then it might call into question the no-scheme values on which he assessed loss.
Mr Carney spoke to the history of the scheme and of the negotiations.
Mr Martin spoke to a report which he had prepared describing measurements taken in respect of noise and traffic flows following the construction of the by-pass.
Noise was taken to be a measure of all injurious affection. Road noise can be taken as a proxy for all of the seven physical factors for which compensation can be given under Part 1 of the Act because the effect of road noise is collinear with all other compensatable items. (See: Part 10. The Effect of Road Traffic on Residential Property Values). Apart from noise, only fumes and artificial lighting were thought to affect any properties near the by-pass.
To meet its duties under the Noise Regulations the respondents assessed the noise level as it might affect nearby buildings. In April 1996, pre-scheme noise levels were calculated from predicted traffic flows to be expected on the new road network and a map was produced. Dwellings which experience noise levels of 68 dB are eligible for grants to meet the cost of noise insulation. The map showed that on the north side of the by-pass only Grayburn Flats had windows eligible for noise insulation grants. The noise levels at Klydon House, 24, George Street and 56 George Street were 63, 60 and 61dB respectively. In July 1997, six weeks after the opening of the new road, traffic counts were taken on the A94 to the east and west of Coupar Angus. In January 1998 theoretical noise levels were re-calculated using the updated traffic figures. A map was again produced showing, as before, that only windows at Grayburn Flats were eligible for noise insulation grants. The noise levels at the three properties already mentioned remained unaltered. In May 2004 further traffic counts were carried out on each of the three legs of the A94/A923 junction. Actual traffic flows to the west of the junction were 13% lower than the 1998 assessment. The flow to the east of the junction was 9% lower than the 1988 assessment. A re-calculation of noise levels gave slightly reduced results at the three locations of 61, 58 and 59dB.
5 Queen Street had not been included in the earlier assessments because it lay on the unaltered A923 where it was thought that traffic flows would remain at the same level. The volume of traffic measured on the A923 and the western leg of the A94 is very similar. Using the slightly higher figure for the A94 a theoretical noise level of 64dB, at the rear of the property, was calculated
It was decided to take actual noise measurements at the four properties in 2004. Only Mr Croll gave permission. Measurements were taken (by New Acoustics) at 5 Queen Street and 58 George Street on 16 July 2004. The measurements were take at 1 metre from the rear façade of the properties and 1.2 metres above ground level. A free field measurement was also taken in the open area to the west of the Co-operative Supermarket opposite 56 George Street and 10 metres back from the kerb. The values obtained for 5 Queen Street and 58 George Street were, respectively, 57.2dB and 56.6dB.
No measurements of noise were taken in the rear gardens of any of the four properties before the by-pass was opened. Theoretical noise level calculations were carried out for their front facades. These showed levels of between 74 and 76dB. However, because all of these properties are closer to the noise source than the standard measuring distance of 7.5 metres the actual levels would be higher.
Taking into account the physical circumstances at each property, including the location and width of any gaps between buildings and the screening effects of walls and buildings Mr Martin adjusted these figures to obtain noise level values (from traffic at the front) for the rear of these properties, at Klydon House 55dB, at 24 George Street 50dB, at 56 George Street 55dB, and at 5 Queen Street 60dB.
Mr Bowdler examined Mr Martin’s calculations and found them to be correct. He re-calculated noise levels from the traffic count figures using later methodology contained in The Calculation of Road Traffic Noise published in England and Wales in 1988. The results were slightly higher than those made on the 1975 methodology. This he attributed solely to the differences in the calculation methods.
He noted that the measured results were less than the calculated results. This he attributed to no adjustments for the angles of view or any barrier effects having been made. He observed that if adjustments were made at 56 George Street for shielding by the garage at 54 George Street and some slight attenuation, because the house was some 2m metres below the surface of the road, then the result would be very similar to the figure measured at 58 George Street. Similarly, at 5 Queen Street the 1988 methodology would require a deduction of 3dB because the rear façade was at right angles to the A94 and a further 3dB because of the presence of a garage in the neighbouring garden. This would give a figure the same as that actually measured.
Mr Bowers had inspected Klydon House and 24 George Street in December 2002 when conducting the earlier independent exercise on the five jointly agreed properties. He inspected 5 Queen Street and 56 George Street in January 2004.
Mr Bowers was of the opinion that the increase in noise at the four subjects was substantially less than that estimated by Mr Sheridan. From his experience of road schemes he formed the opinion that while there had been a noticeable increase in noise to the rear of the subjects it was less than that claimed and was ameliorated by reduced traffic flow to the front of those on Union Street and George Street. He accepted the noise levels determined by the respondents contained in the report prepared by Mr Martin and as confirmed by Mr Bowdler.
He accepted that the perception of noise by the claimants, used to enjoying quieter rear gardens, would be that the increase in noise was substantial. However, he did not think that the level of noise experienced at the subjects would be a major consideration in the mind of a potential purchaser and that as a consequence there would not be a substantial decrease in the values of the subjects. He cited the sale of 24 George Street at £85,000. He had inspected the property at about the time of purchase and the purchaser had indicated to him that he had not been particularly aware of the road to the rear and it had not been a consideration in his purchase of the property.
Mr Bowers had carried out an analysis of sales of houses in the centre of Coupar Angus over the period 1989 to 2004. He identified those properties in individual streets which had changed hands more than once enabling a view to be taken of changes in property values over time. His analysis showed that properties on George Street backing on to the by-pass and which had pre-scheme and post-scheme sales had shown an annual (uncompounded) rate of increase over various periods between 1992 to 2002 in the range of 3.75%-4.6%. A similar exercise had shown an annual rate of increase range of 2%-10% for properties in Union Street over the period 1991 to 2002. One property in Queen Street rose in value between 1993 and 2001 at an annual rate of 9.4%.
He also analysed the sales of properties outside the influence of physical factors from the by-pass confining the investigation to larger properties. He found that Strathisla, 1, Blairgowrie Road had risen at an annual rate of 2.33%, Inglewood, Forfar Road, at 2.25% and The Hirsel, Dundee Road at 3.32%
He concluded that while there was clearly an increase in property values over time there was no firm pattern of increase. However, properties within the penumbra of the scheme showed no apparent difference in growth rates to those outside it.
Mr Bowers considered that the settlements made for claims arising from the by-pass were relevant as an additional source of evidence. He noted that 15 settlements negotiated by the William Ricketts partnership showed a percentage relationship to nominal capital values of 1%-2.78%. He further noted that the 10 settlements agreed between claimants represented by Mr Sheridan and the respondents indicated a similar relationship of 2.4%-4%.
Mr Bowers considered that the no-scheme capital value of £85,000 adopted by Mr Sheridan for Denburn was excessive. He had not had the benefit of an internal inspection of Denburn and did not seek to place his own value on it. However he was of the opinion that there was sufficient evidence to suggest that the figure of £85,000 was too high. He referred to the sale of 15 Grampian View at £76,000 in 1997 and Beech Bank, Forfar Road, at £105,000 in 1999. These were in much better locations than Denburn. The Hirsel, Dundee Road, had sold for £87,500 in 1997. It was on the edge of Coupar Angus with a much better outlook.
24 George Street had an agreed no-scheme value of £100,000. Mr Bowers considered this to be excessive. In his opinion £100,000 was high for any house in Coupar Angus at that time and it would have been difficult to obtain that price for any house other than one on the outskirts of the town. His no-scheme value of £85,000 compared with the sales of The Hirsel, Dundee Road (£87,500, 1999), Elthorne, Dundee Road, which had sold for £83,289 in 2001, and Norbreck, Blairgowrie Road, which had sold for £82,000 in 1997. They were all in better locations. 24 George Street had a poorer town centre location, it abutted the pavement and had traffic and parking problems. It had structural problems and was run down. While he agreed with the no-scheme value for Klydon House of £95,000 he considered this to be a much more desirable property than 24 George Street. It has higher ceilings, is in better condition and has a small front garden.
Mr Bowers also disagreed with the no-scheme value of £65,000 agreed for 5 Queen Street. He considered that this property had many disadvantages. It did not have an attractive frontage. It was located on a narrow street with a narrow pavement and a heavy traffic flow. It had a poor internal layout and had old fashioned fittings. One room lay below part of the first floor of the neighbouring property, 3 Queen Street. There was therefore no fire separation between the properties which could give rise to difficulties in borrowing money on the property.
He considered that sales of properties in the vicinity suggested that his figure of £45,000 no-scheme value should be preferred to that of Mr Sheridan at £65,000. He noted that Kirksyde, 25 Queen Street, had sold for £35,000 in September 1999. It appeared to have been modernised. Although it was smaller it was further away and was a post-scheme transaction. 9 Queen Street had sold for £28,500 in August 1993 and then £33,000 in February 1996. It was also smaller than 5 Queen Street but was further away from the junction. He referred to the sale of The Hirsel, Dundee Road, (a detached villa on a large plot) at £87,500 in November 1997. This property was, in his opinion, twice as desirable as 5 Queen Street. He also referred to Elthorne, Dundee Road (again a detached villa on a large plot) which had sold in March 2001 for £83,289. In his opinion Mr Sheridan’s assessment of £65,000 for 5 Queen Street was too close to this figure given the comparative qualities of these two houses. He also considered that 5 Queen Street may have suffered from starting and stopping traffic prior to the scheme because traffic would then have tailed back from the former junction of High Street, George Street and Union Street.
Mr Bowers did not disagree with Mr Sheridan’s figure of £53,000 as the no-scheme value of 56 George Street.
On behalf of the claimants Mr Sheridan submitted that there were two instances of ‘public works’ in terms of the Act which affected two of the subjects. The first works were carried out by the developer of Brodie’s Yard. These were carried out on land owned by the Council. The letter from the respondents to him dated 3 May 2002, confirming that that road was completed on 7 November 1995, was ‘certification’ of that fact in terms of section 13 of the Act. Section 17 defines the ‘relevant date’ as the date as ‘the date on which [the road] was first opened to the public’. (Section 1(9)(a)). The responsible authority were required by section 13 to keep a record of the date on which a road was first open to the public and to furnish a statement confirming that date when requested to do so. A claim could not be duly made unless the ‘relevant date’ was entered on the claim form. Where part of a roads work was opened to the public, as here, a claim had to be made in respect of it since there was no guarantee that the remainder of the works would actually be completed.
It was incorrect to suggest that the relevant date was the date when this section was incorporated into the by-pass. The fact that the first stage of the by-pass was not used as such but was used as an access to a private development was irrelevant. In his experience it was normal practice for claims to be accepted by responsible authorities for private roads which were open to the public. Section 17 refers to the works being ‘open to public traffic’ whether or not as a ‘road’. Here a deal had been done between the developer and the respondents. It was a commercial deal whereby, in exchange for access to Brodie’s Yard, the developer had to build part of the by-pass. That part had been open to public traffic
Mr Sheridan invited the Tribunal to assess the fees due to his firm. Since there were two public works, and two occasions where different claims had to be made by certain affected properties then two fees, based on Ryde’s scale, were appropriate. However, in his submission, an addition to the fees of £100 where two claims had been made would be appropriate. This was justified by the negotiations in these cases being unusual. Initially the respondents would not supply the dates when the works were open to the public. He had to get this information from the contractor who carried out the works. After the dates had been agreed there had been a change in the person dealing with the matter on behalf of the respondents and agreements made had been abandoned. When agreement could not then be reached Mr Sheridan had requested that the head of the department responsible should be asked to intervene. The respondents said that they would bring in the District Valuer. This had involved a considerable amount of additional work which had not resolved the matter. As a consequence of these difficulties in the negotiations Mr Sheridan had been involved in correspondence with claimants’ solicitors explaining why fees were outstanding.
On the claims as a whole Mr Sheridan emphasised that the prime evidence in the case was the sale of Denburn. Lewars demonstrated that the Lands Tribunal had a clear preference for evidence of open market transactions over settlements. It was necessary to estimate the no-scheme value of Denburn. He submitted that the no-scheme value of Klydon House and the sale of Strathisla were relevant. On the other hand the evidence provided by Mr Bowers lacked credibility. It was not first hand. No details of properties, in respect of their areas or any special circumstances, were provided. He had no experience of the sales of houses and failed to meet the standard of evidence that the guidelines produced by the Lands Tribunal expected of a witness.
The principle established in Horton, that purchasers of higher value properties are likely to be more sensitive to noise intrusion and that higher value properties are likely to be more adversely affected, should be applied in this case. Mr Bowers had agreed that that the effect of noise arising from the scheme was the same for Klydon House, Denburn and Burnlea and was represented broadly by 2.5% of no-scheme value. If the 2.25% of no-scheme value agreed at Burnlea was applied to the £2,000 compensation paid for Denburn (rather than the 2.78% which was applied) then the equivalent no-scheme value of Denburn would be £88,888 which he called £90,000.
The £2,000 paid in respect of Denburn was a capital sum not a percentage of capital value. It was disingenuous to use 2.78% to suggest a pre-scheme value of £72,000. In fact Denburn had suffered a gross depreciation of £18,000 or 20% of its pre-scheme value of £90,000. Mr Sheridan referred to his list of comparisons. There was evidence of substantial loss at other properties. He observed that ‘Pinewood’, George Street, had been sold in May 1998 at a figure of £39,000 representing a loss of £6,000 or 13.3%.
Despite identifying rises in the Coupar Angus residential market Mr Bowers had not explained the depreciation in no-scheme value which had occurred at 1 and 2 Grayburn, Union Street, and 12A and 12B George Street. It was not sufficient for him to say that flats were a different market segment. 12A George Street had suffered a 8.57% loss. 12B George Street had suffered a 25% loss. The settlement at 1A High Street was agreed to be 3.75% (actually 3.6%) of the no-scheme value. It was the lowest on his list and could be explained by the ‘Horton principle’.
Turning to the evidence about noise as a physical factor emanating from the scheme Mr Sheridan submitted that the perception of a purchaser was more important to an assessment of impact on property value than scientific measures of noise. Mr Bowers had agreed with this and had made his own observation on value on the same precept. However his ability to take account of the impact of noise on value was limited by lack of experience.
He submitted that the loss of £18,000 on 24 George Street should be confirmed. It was similar to Klydon and Denburn, but larger. The prior agreement to the no-scheme valuation had not been adequately explained away. There was no contrary evidence that could be properly verified. He recommended that the award should be apportioned £14,000 to the first phase and £4,000 to the second phase of the scheme.
He submitted that since Denburn had shown a post-scheme loss of £18,000 or 20%, and since Mr Bowers had conceded that the physical impact of the scheme was the same on both it and Klydon House then a loss of £17,100 for the latter should be confirmed.
He submitted that in respect of 56 George Street there had been no evidence submitted to justify a depreciation of £1,300 or £1,350. No contrary view had been offered on his analysis of Pinewood which was similar. Therefore his assessments of loss at 11.8% or £6,175 should stand.
He submitted that in respect of 5 Queen Street Mr Bower’s view on value had been coloured by the repossession of 3 Queen Street. He and Mr Bowers had different overwall areas. Mr Bowers had admitted that one room of the house was larger and that it had special features. Mr Sheridan conceded that the pre-scheme level of noise had been greater than he had estimated, but nevertheless noise and traffic lights affect the property. The perception of the potential purchaser was the important consideration. Having regard to a ceiling value of £60,000, and allowing for the ‘Horton principle’ he recommended a percentage reduction of 5.6%, which was only 2% above the lowest agreed payment, and was a figure of £3,136 rather than the £4,550 originally claimed. He recommended that the award should be apportioned £2,636 (84%) to the first phase and £500(16%) to the second phase of the scheme.
For the respondents, Mr Thomson submitted that Mr Sheridan’s position that there were two claims (in respect of certain properties) was untenable. He had suggested that that there was statutory provision defining when a road became public works. But there was no such provision. The question of whether the claims made in respect of the first part of the by-pass were valid depended not on the issue of any supposed certificate but on the provisions of the Act. Mr Sheridan had asked the respondents for information about the road works and he had been provided with the facts. There had been no statement by the respondents of a ‘relevant date’. These claims were not valid.
Section 1(4) of the Act confirms that the ‘public works’ require the exercise of statutory powers by a responsible authority. Subsection (3) does not define ‘public works’, and it is not a section intended to provide a definition. Section 17 defines ‘public works’ as having the meaning given in section 1 of the Act. Section 80, dealing with general interpretation of the Act is silent in respect of ‘public works’. Therefore, ‘public works’ will have its normal meaning, being works carried out for the public good at public expense.
Mr Thomson referred to definitions of ‘public works’ in; The Chambers Dictionary - ‘building, etc funded by the state’; Black’s Law Dictionary (7th Ed) – ‘structures (such as roads or dams) built by the government for public use and paid for by public funds’; Words and Phrases legally defined (3rd Ed.) – (New Zealand) ‘something done for the common good: and done by a body charged with furthering the common good in one or more of its aspects’.
Therefore the provider of the ‘public works’ had to be a public body. Here the access to Brodie’s Yard had not been provided for the public good but by the developer in the interests of his private development. It did not follow that the relief road would necessarily come to fruition, albeit that it may have been constructed to a standard higher than that required for residential access only. Any idea that ‘public works’ included works by private companies for private use ran contrary to the purpose of the Act. The whole Act presupposed that the works were being carried out by a body acting under statutory powers.
The claimants had argued that it was necessary to look at the intensification of use of the road when assessing compensation in terms of section 4(2) of the Act. But the requirements of that section only become relevant when the road becomes a ‘public work’. The access road into Brodie’s Yard only became a ‘public work’ when it was adopted by the respondents. Until then it was a private road in private use. If that were not the case anyone could make a claim for injurious affection because of increased traffic levels on an existing road. That situation would also make nonsense of the ‘relevant date’ provisions. If the relevant date were to be other than when a road was adopted that would have been included in the drafting of the Act.
Mr Thomson submitted that the respondents’ principal argument was that it was apparent from the scheme of the Act that, as set out in section 1, the depreciation in physical factors had to be caused by the ‘use’ of ‘public works’. Until the by-pass was completed the ‘use’ was entirely as a private access road. Section 80 of the Act defined ‘road’ by reference to section 151 of the Roads (Scotland) Act 1984 as, ‘any way over which there is a public right of passage’. The solum may have been public but the road was private. There was no ‘public right of passage’.
In any case the Act made prefect sense if one only claim was made. That did not strain the provisions of the Act. One simply looked at the consequences flowing from the completion of the by-pass. There was no suggestion of further intensification of its use. To do otherwise was to engage in an artificial exercise to determine the effects of bits of road at different times with different levels of traffic, when the reality was that there was one by-pass with one level of traffic on it.
Whether or not he was correct on this matter the position of the respondents was that this was a nil point. There were no detrimental effects from the first part of the by-pass. To proportion the effect between the two stages was therefore arbitrary and without any real foundation. The second stage included the ‘intensification’ provided for in section 4(2). There were no negative effects until the access road became part of the relief road; therefore, logically, it was only the opening of the by-pass at the second stage which gave a basis for claim.
Regarding fees Mr Thomson submitted that only one fee was appropriate. Even if there were an entitlement to two sets of fees he suggested that there was no complexity in the preparation of the claims.
For the respondents Mr Thomson submitted that the burden of proof was on the claimants to justify losses attributable to physical factors associated with the public works. He noted that the ongoing negotiations had undergone a change of emphasis following the sale of Denburn. It was claimed that there were adverse effects on all four properties based on Mr Sheridan’s guess as to the increase in noise levels. But his intuition could not compete with the measurements taken by the respondents.
Also, Mr Sheridan’s past association with the area had put him in the position of the proprietor of an affected property rather than the purchaser, whose perception he recommended. It was in any case very difficult for the unskilled to estimate noise levels. Mr Sheridan had limited experience and understanding of noise measurement. He wrongly assumed that two different sources of noise should be added at the reception point. His statement that noise had doubled was therefore undermined. In short, his evidence on noise could not be relied upon. In contrast Mr Bowdler was in a much better position to provide estimates of noise. He was an experienced noise expert and there had been no cross-examination of his evidence. Cross-examination of Mr Martin elicited no significant concessions.
Another flaw in the claimants’ evidence was that there had been a decrease in one source of noise at three of the subjects. That called into question the whole approach to the claims. Mr Sheridan had given insufficient consideration to the pre-scheme noise levels at the rear of these subjects. He suggested that there had been a rural atmosphere to their rear, but the figures showed that there had been a significant amount of noise to the rear of these subjects from the original through traffic. The claimants had underestimated this factor.
Regarding the evidence referred to by Mr Sheridan from elsewhere, this was not from situations comparable with the conditions at Coupar Angus. They largely involved residential properties in rural areas (often with rural aspects) where there had previously been no significant roads to their fronts and no significant traffic. The noise increases of between 9 and 10 decibels inferred that noise levels must have been higher than at Coupar Angus and to that extent supported the respondents’ position.
The emphasis of the claim at 5 Queen Street was on the stopping and starting of vehicles at the traffic controlled junction, but Mr Bower’s evidence was that there had always been stopping and starting there because there had not previously been a smooth uninterrupted flow of traffic.
Regarding Denburn, Mr Sheridan’s estimate of loss was based not on sales evidence but on his estimate of no-scheme value. His view that noise levels didn’t matter, because the difference in value expressed the extent of loss, was too simplistic. He was not comparing like with like. Mr Bowers had produced better evidence of before and after values. He gave good reasons for concluding that £85,000 was too high a no-scheme value. Comparison with settlement awards did not assist. There was evidence in one case that the payment was not made with reference to a percentage of estimated no-scheme value.
Mr Sheridan had claimed that the application of the ratio of 0.54 represented the settlements that he had been involved with. But the application of his figures here produced a result that bore no relationship to that ratio. He estimated a noise increase of 13dB and a percentage reduction of 17.65 in capital value. The ratio produced by these figures was 1.358, not the figure one would expect if Mr Sheridan was right. Thus Mr Sheridan’s own evidence undermined his position.
Regarding 24 George Street and Mr Sheridan’s other comparisons, they would all show figures of supposed loss which were less than those proposed by Mr Sheridan if the respondents’ noise figures were applied. Mr Thomson submitted that the application of the ratio of 0.54 should be rejected.
Regarding Klydon house and 56 George Street, Mr Thomson submitted that the pre-scheme values had been agreed but the increase in pre-scheme noise levels now established required adjustment to be made.
Mr Thomson submitted that Mr Sheridan had not compared actual sales in the locality of the scheme to determine any actual effect. There had been no attack on Mr Bowers’ approach or conclusions. It would be impossible to find a surveyor with direct knowledge of a sufficient number of properties to speak with authority about the pattern of prices in the locality. The method adopted by Mr Bowers had been preferred by the Lands Tribunal (Hallows). It was based on before and after figures comparing like with like. This had not been done by the claimants.
Regarding the settlements, Mr Thomson submitted that the respondents put no great weight on these. They showed a range of percentages. Their circumstances were not said to be completely unlike the circumstances under consideration here. Indeed the circumstances appear to be analogous. Therefore there was some support for the tone of decrease in value which had been established.
Mr Thomson submitted that for all these reasons the applications should be refused in respect of the claimants’ estimates of noise and depreciation in value.
The question whether the initial development of a stretch of road as access to a private housing development prior to its incorporation into the relief road, qualifies as ‘public works’, enabling affected proprietors to have claims under the 1973 Act both in relation to the opening of that stretch and again when the remainder of the relief road was opened, admittedly does not affect the assessment of total compensation (other than interest and expenses). It does, however, raise an interesting issue as to the scope of the Act. Do its provisions apply to access roads, not yet publicly maintainable, to private developments? If so, in the particular circumstances of this case, is there a valid claim for depreciation on the date when the access road was first used, as well as on the date when the relief road was opened?
We accept Mr Thomson’s submission that the respondents certification dated 3 May 2002 is not conclusive of the issue.
It appears to us that the clear meaning of these provisions, and in particular the reference in Section 1(3) to ‘road’ rather than ‘public road’, is that the opening of such a road to public access brings it within the scope of the Act whatever the status of the development served. Although Mr Thomson at one stage expressed some doubt as to whether the public had a right of access at that stage, we do not think that that can be seriously doubted, and we accordingly accept Mr Sheridan’s submission that the two claims made in respect of the opening of this stretch as an access road are valid claims subject to proof of resulting depreciation in value.
It seems to us that Section 1(3), taken along with Section 17(1), does have the effect of defining ‘public works’ in terms of its three sub-paragraphs (a), (b) and (c), and that it is not possible to read in a further requirement that the works be ‘public’ in the manner submitted by Mr Thomson. As Mr Thomson acknowledged, ‘road’ is defined in the Roads (Scotland) Act 1984 as meaning any way over which there is a public right of passage. ‘Public road’ has its own definition in that Act and that expression is not used in the 1973 Act. ‘Any road’ therefore seems to us clearly to include roads not yet taken over. Assistance is also gained from looking at (b) and (c) : (b) brings in ‘any aerodrome’, while (c) introduces, in relation to other works, a limitation to works provided or used in the exercise of statutory powers if they are to qualify as ‘public works’. Parliament appears to have taken the view that the element of public authorisation and then the subsequent building and opening of any road open to the public is sufficient. Provision for this earlier date, rather than the later date when the road is taken over, would appear to fit the scheme of compensating only affected owners at the time when the works are first used, or when there is a relevant ‘alteration’ within the meaning of section 9 of the Act. All the Act’s subsequent provisions, for example Section 1(9), Section 4(2), Section 9(1)(a), Section 13(1)(a) and Section 17(3), appear consistent with this interpretation. As Mr Sheridan pointed out, proprietors who are benefited by the opening of the road will generally be excluded by the provisions of section 6(1). In any event, one would not normally expect the use of private access roads to give rise to relevant depreciation.
Mr Thomson urged us not to accept this interpretation and to hold that Section 1(3) is not in fact a definition section. ‘Public works’ must, he said, be works publicly provided at public expense. Apart from the difficulty of reading the provisions this way, we are not persuaded that this is what Parliament must have meant. This would mean that public use of an access road leading to a public development would be compensatable but public use of an access road leading to a private development would not, even if the nuisance effect on adjoining properties were of the same order. It also has to be said that Mr Thomson’s characterisation of public works is not at all definitive in these days of private financing initiatives.
Mr Thomson also argued that roads would not necessarily become public even when adopted by the Council. We have great difficulty with this when it is considered that this is the definition of ‘public road’ in the Roads Act.
Mr Thomson developed his argument based on the purpose and scheme of the Act by submitting that the relevant use had to be use as public works, which, again, could not be said of this access road before the relief road was opened. Section 1(1), however, refers to ‘use of public works’ (our underlining), not use as public works.
He further argued that the Act made perfect sense if simply one claim arose in the circumstances of this case. We have more sympathy with this point, but that should not constrain us to adopt a wrong interpretation of the scope of the Act.
It remains, however, to be considered whether any relevant depreciation has been established. Mr Sheridan does not suggest that the initial use of the access road was such as itself to cause depreciation. Rather, he relies on section 4(2), which allows account to be taken of any intensification in use which may, on the ‘first claim day’ (one year after opening) “be reasonably expected of the use of those works in the state in which they are on that date”. He correctly points out that this is the only way in which intensification of use can give rise to a claim, (unless there is relevant ‘alteration’ which, in the case of a road, is limited to physical alteration). It was not suggested that the ‘state in which they are on that date’ allowed consideration of the fact that when it was opened this road served only the private housing development. We think that the applicants are entitled to rely on section 4(2) in the way sought.
Depreciation has to be assessed as at the ‘first claim date’, in this case 7 November 1996, some two months before the completion of the relief road. We are satisfied that the increased use could reasonably be anticipated at that date. Exceptionally, therefore, this private access road does give rise to claims. Apportionment is necessarily inexact. It appears to us that by November 1996 the substantive effect of noise etc of the traffic directed from the centre of the town could reasonably be anticipated and would therefore have a depressing effect. Mr Sheridan’s actual apportionment was not disputed and we shall apply the same distribution (albeit rounded for convenience to 80% to the first claims in respect of 5 Queen Street and 24 George Street and 20% to the second).
We consider later the effect of this decision on expenses.
In view of Mr Sheridan’s heavy reliance on the sale price of Denburn, we consider first the nature of the available evidence.
The evidence in this case is not easy to interpret. In the affected part of Coupar Angus there is a wide variety of sizes, ages and physical siting of houses. Each of the valuers, Mr Sheridan and Mr Bowers, was attempting to do his best with the material, but we feel more confidence in Mr Bowers’ approach. We think that Mr Sheridan tended to underplay the beneficial effect to the houses in George Street and Union Street of the diversion of most of the through traffic onto the by-pass; that he over-estimated the increase in noise levels; and, that he placed too little weight on the settlements. He placed heavy reliance on one transaction, the sale of Denburn. Although Mr Bowers did not have the status of a jointly appointed expert, and indeed we note that as a representative of the Valuation Office Agency he is free to give evidence on one side only of such cases, we found his approach to be impartial and thorough. He attempted a wider look at the housing market than Mr Sheridan, and the picture derived from that, while not conclusive, seemed to fit in with the level of settlements, and indeed with our own general impression that in these cases, where one substantial nuisance was considerably diminished, the level of depreciation was likely to be on the modest side.
Mr Sheridan considered the sale of Denburn to be the prime evidence. The evidence of that sale was to be preferred to settlements already made. He referred to Lewars. Once market evidence had been captured showing actual diminution in value then previous settlements became irrelevant as did actual measurements of noise, because the perception of the purchaser had been made manifest in the price paid for the property.
The propositions that market evidence is to be preferred to settlements, and that the perceptions of purchasers in that market place were more relevant criteria than scientific measurements of physical factors attributable to the public works are unexceptional. Nevertheless these propositions, while attractive as simply expressed, require some further consideration.
Firstly, the proposition that market evidence should be preferred to settlements has been accepted by the Lands Tribunal not in cases brought under Part 1 of the Act but in cases such as Lewars under the Land Compensation Act 1965 (or the Land Compensation (Scotland) Act 1963) where land and buildings have been acquired and where the object of the exercise has been to establish their actual open market capital values. Here we are dealing with a different exercise. Under Part 1 of the Act the object is to determine the diminution in value of property as a consequence of the injury caused by the effects of physical factors emanating from public works where no land has been taken. These effects can cause substantial diminution in value as certain of Mr Sheridan’s examples from elsewhere demonstrate. They are more typically a modest percentage of an estimated capital value. The exercise to quantify the extent of injury is not carried out as a systematic attempt to determine the open market value of every property affected, from which a deduction for injury to the value is made. Instead it is a negotiation on the payment of relatively modest amounts of money where reference may be made to nominal capital value to represent the sum as a percentage, which, as the evidence shows, is often used to compare the effects of public works.
This simpler approach may well be more appropriate to the purpose and scale of the exercise. If a more rigorous approach to determination of open market values had been taken by the agents acting for these and other claimants in Coupar Angus we would have expected to have received such evidence. It seems to us that ‘no-scheme world’ values, even when agreed, were only broad estimates that experienced valuers had made for the purpose of this limited exercise.
These estimates may be found to be unreliable when further researched, but these no-scheme values do not appear to be critical to the exercise the object of which is to achieve mutual satisfaction in the amount of a payment for injury to the property. The settlements which have been made reflect the satisfaction of both parties to these relatively modest amounts of compensation determined without systematic reference to market evidence. Where there is evidence of widespread acceptance of compensation payments, and where these establish a tone or range within which further settlements may be anticipated to lie, then they are additional evidence to be considered and not to be dismissed out of hand. Their evidential value, for present purposes, is for these reasons distinguishable from settlements in compensation cases where land is taken and where the determination of open market value is the core issue.
That observation is not intended to suggest that market evidence is not prime evidence. But there is a second distinction to be made. Where market evidence is compared with settlements in compensation cases there is normally a body of such evidence. Here, Mr Sheridan relies overwhelmingly on the sale of Denburn. As both he and Mr Bowers agreed, there can be aspects of any single transaction which cause it to be unrepresentative of the general level of open market value. Where the prime evidence is fragmentary, and knowledge of it is incomplete, it need not necessarily outweigh more extensive evidence taken from settlements.
A third distinction here is that it is not the market evidence of the sale of Denburn which is relied on by Mr Sheridan. Indeed, its sale price is used by the respondents to justify their settlement. It is the non-market evidence of Mr Sheridan’s estimate of its no-scheme value which is the critical evidence for him. He does not suggest that all the no-scheme world estimates of capital value made in Coupar Angus are wrong to the same extent. That would, of course, reflect badly on the skills of the agents acting for claimants in these and other cases. However, it would be necessary to recognise the no-scheme estimate as robust before drawing any inference from any open market sale. Here, of course, the no-scheme estimate of value is disputed.
For these reasons we do not accept Mr Sheridan’s submission that market evidence from the sale of Denburn displaces all other evidence. We consider it appropriate in these cases to further examine the estimated no-scheme world values, with reference to the subsequent market information now provided, and also to have regard to the settlements. Where there are questions of disputed values we consider it prudent to consider all the available evidence, although the weight to be attached to each source of evidence may vary.
Before proceeding to consider the extent of injury to the subject properties we turn to deal with the evidence relating to the cause of the nuisance.
From the evidence and from our inspection we take the view that the level of pre-scheme noise at these subjects was higher than that assumed by Mr Sheridan. The noise level in their rear gardens could not have been the ambient level associated with a rural setting as proposed by Mr Sheridan, but would have been one subjected to the invasion of sound from the surrounding streets. Even the lower level of noise now sourced from George Street and Union Street is significant in the rear gardens of subjects there. In the case of 5 Queen Street the continuing level of noise from the A923 was observed as being particularly intrusive to the rear of that property.
We accept the unchallenged technical evidence of Mr Martin and Mr Bowdler as to the probable levels of pre-scheme noise at these locations.
The intrusion of noise at all these subjects from the new source of the by-pass is obvious. We accept the unchallenged evidence of Mr Martin and Bowdler as to the post-scheme levels of noise, and we also accept their evidence that the overall position regarding the nuisance of noise has been ameliorated by the reduction of noise from the George Street and Union Street frontages.
In short we accept the respondents’ estimate of the pre-scheme/post-scheme difference in noise levels.
Mr Sheridan had suggested that should the Tribunal not agree with his evidence from the sale of Denburn then his ratio of percentage of capital value paid as compensation: rise in decibels of 0.54 should be applied. If this constant were applied to the levels of noise which we accept then the amounts of compensation which would be derived are as set out below:-
|dB rise||% compensation
(0.54 x dB rise)
|5 Queen Street||65,000||2dB||1.08||702|
|24 George Street||100,000||5dB||2.70||2,700|
|56 George Street||53,000||3dB||1.62||859|
These results are much closer to the respondents’ offers than the claims. However, the derivation of 0.54 as a universally applicable constant is suspect. The method of selection of the sample for the intended purpose was not made clear and the sample size is restricted. There is therefore a risk of bias in the result (whether or not intended). Looking at the sample, the range of values from which the average was derived is large, running from 0.42 to 0.72, thereby potentially concealing widely different features of public works and/or individual circumstances.
For these reasons we reject the application of the ratio as a tool for deriving compensation for diminution in value of these subjects.
In any case Mr Sheridan’s submission is that levels of noise are of no consequence where there is evidence of open market transactions which reveal the actual extent of losses.
Mr Sheridan started with the assertion that the no-scheme value of Denburn was wrongly agreed by the William Ricketts Partnership and the respondents at £72,000. The proof of that assertion was said to be that in direct comparison with Strathisla, which sold for £72,000 close to the valuation date, Denburn, as a larger house, must have been worth more. He further justified this assertion by comparing the no-scheme values of Millburn and Klydon House with Denburn. Given that Denburn and Klydon House are similarly affected by the scheme, he attributed the same percentage loss to Klydon House as is claimed to have been suffered at Denburn.
His reasoning to prove the loss at Millburn, 24, George Street, is more direct. On a no-scheme value of £100,000 Mr Sheridan attributes a 15% loss of capital value on the evidence of the sale of that property in January 2002 at £85,000. Adding 3% for a rise in general values over the period he identifies a loss of £18,000 or 18%.
His approach to the claims at 5 Queen Street and 56 George Street is different. He identifies the lowest agreed percentage at 1A High Street of 3.6% and taking the range to be up to 18% for Klydon House he attributes a diminishing percentage in line with diminished values on the proposition that nuisance increases in its degree of effect in proportion to value. He referred to his third schedule for support for the relationship between percentage and value.
Mr Sheridan’s assessment of losses in each case is therefore fundamentally predicated on the no-scheme values of the relevant properties being unimpeachable. For the reasons already given we consider that these amounts were merely indicators of no-scheme value for the purpose of the kind of exercise being undertaken. Whether ‘agreed’ or not, they are for that reason open to challenge. Should further inquiry cast doubt on any of these figures then they should be re-considered, as Mr Sheridan himself has invited us to do. The District Valuer’s independent assessment had been sought, by agreement, between the respondents and Mr Sheridan. His earlier report and Mr Bowers’ oral evidence call into question the reliability of the no-scheme values attributed to some of these subjects in the original exercises involving both agents.
From the available evidence, including the information regarding the sales of properties in the affected area, it is possible to test the estimated no-scheme values against that market evidence. In doing so we have used information taken from the official sources used by Mr Bowers. On occasion these differ from the figures quoted by Mr Sheridan as supplied to him by the persons for whom he has been acting in these matters. The figures in the official records may not always reflect the true market value of properties for various reasons. For, example, the sale price of 12B George Street, recorded in 1994 at £9,000 is quite incompatible with similar flats in the same block sold earlier for amounts of £28,000 and £30,000. We do not include that transaction in our analysis, but otherwise we prefer the official figures to anecdotal evidence.
We begin by examining sales in George Street. Mr Bowers’ evidence is that over periods from 1992 to 2002 three properties showed growth from pre-scheme to post-scheme values of 4.2%, 3.75% and 4.6% (uncompounded annual rates). As witnesses agreed, values do not rise at a regular rate over time. There may be peaks and troughs. The advent of the by-pass may have caused a reduction or a reversal of growth, for example. However, in the absence of any knowledge of any destabilising factor before the road was implemented in 1997 we consider it safe to assume a representative rate of steady growth in order to establish from pre-scheme sales what the no-scheme values may have been in January 1998. Taking an uncompounded rate of, say, 4%, and applying it to properties with pre-scheme sales to which no-scheme values have been attributed, the following results are obtained:-
|Property||Sale Date||Price £||Years to
@ 4% pa
|42, George Street||4/1993||30,000||4.75||35,700|
|48A George Street||5/1996||40,050||1.50||42,453|
|46 George Street||9/1995||35,000||2.33||38,262|
|12A George Street||7/1991||30,000||6.50||37,800|
|12C George Street||3/1992||28,000||5.83||34,532|
We then compare these results derived from market information with the no-scheme values proposed:-
|42 George Street||40000||35700||12.04|
|48A George Street||50000||48000||42453||17.78||13.07|
|46 George Street||40000||38262||4.54|
|12A George Street||37500||35000||37800||-0.79||8.00|
|12C George Street||37500||35000||34532||8.59||1.35|
We conclude from these results that the estimates of no-scheme values have been overestimated and are not a firm benchmark, in any particular instance, from which to measure changes in market values. We also observe, as Mr Bowers indicated, that there could be different market behaviour for flatted property and house property, the latter showing the greater departure from no-scheme value estimates. It may be also that there could be difference between the market performance of the former local authority flats and flats in older properties in George Street. Sufficient to say that when considering a change in value following the sale of a property we would generally expect the no-scheme value to be less than that indicated because of this market evidence, and to be deserving of further inquiry.
We have looked closely at the no-scheme valuation carried out by Mr Bowers of 24 George Street. When considering that value Mr Bowers had drawn comparison with the sales of houses of broadly similar quality in the few years before the implementation of the scheme: St Catherine’s, £94,000; Norbreck, £82,000; Beechbank, £105,000, Strathisla, £72,000; Dalbreck, £100,000; and The Hirsel, £87,000. Comparing similarities and differences in quality, size and location he has proposed a figure of £85,000 as the no-scheme value of Millburn. The ‘agreed’ no-scheme value of £100,000 is some 17.5% higher than this figure. That is consistent with the scale of difference observed at the house at 48A George Street.
Against that we have the evidence of Mr Sheridan that this property had been marketed at £107,000 in mid-1999. That price had not been achieved. The figure could be supportive of a no-scheme value of £100,000 at January 1998. On the other hand it might suggest that the owners did not perceive any diminution in value caused by the public works. Certainly the price achieved of £85,000 in January 2002 shows that, for whatever reasons, the asking price in 1999 must have been unrealistic. In the light of the evidence we consider it prudent to assume that the no-scheme value of £100,000 has been overstated.
We now turn to consider the situation in Union Street. The sales evidence shows that St Catherine’s Croft, a substantial property, for which no claim has been made, shows an appreciation in value over an 8-year period (including the period of the construction of the works) of some 24%. Burnlea shows an appreciation in value over a 10 year period (including the construction of the works) of about 20% and 12.5% higher than its no-scheme value in 1998. This suggests that properties in Union Street, whether or not affected by the scheme, were growing in value, possibly benefiting from betterment to some degree from the reduction of traffic brought about by the opening of the by-pass. If Burnlea’s sale price of £90,000 is discounted back to January 1998 at its estimated no-scheme value of £80,000 it equates with an uncompounded rate of 3.5%. If it had grown in value at an even rate between the two transactions its equivalent value at January 1998 would have been about £85,000. The ‘real’ value probably lies between £80,000 and £85,000, but the analysis suggests that the no-scheme value attributed to it at the time of settlement is a reasonable approximation.
Mr Sheridan insisted that the overall injurious effects of the by-pass on Klydon House, Burnlea and Denburn were much the same. If that is so it invites the question as to why Burnlea was improving significantly in value, on the evidence of actual sales, while Denburn, on the basis of his no-scheme value, fell dramatically in value. If the no-scheme world value of Burnlea was, on the basis of market evidence, about right, it invites the question as to how the no-scheme value of the nearby and broadly similar property would be wrong to the extent claimed. There was a reference in the proceedings to a higher no-scheme value being placed on Denburn by the William Ricketts Partnership who agreed a settlement of £2,000 with the respondents (2.78% of their no-scheme value) but the respondents’ letter of 13 October 2000 to Mr Sheridan makes it clear that there was no agreement and that the compensation was agreed as a sum rather than a percentage.
We do not draw any firm conclusions, however, from these observations for which there may be more than one explanation. We refer to them as examples of pertinent evidence which point away from Denburn suffering a serious fall in value as claimed. On the other hand there is no other immediate evidence pointing in the opposite direction.
We turn therefore to consider what the evidence of the sale of Strathisla and the evidence drawn from comparison with other sales of properties in Coupar Angus reveal.
In the absence of a systematic attempt to find open market values by making comparison on salient factors with close comparators, it is rarely possible to do other than form an impression of value. Because there has been no systematic exercise to value any of the relevant properties, there is no information available as to the significance of the various relevant criteria. The behaviour of purchasers locally is unknown. Neither valuer giving evidence in this case has experience of valuing houses for purchase or sale in this area. It may be that houses with gardens outside the town centre are favoured, but they may not be. It may be that older houses are preferred but not if they are in a town centre location. It may be that certain types of dwelling or location are more fashionable than others in the local market. In the absence of this local knowledge all that we can rely on is the limited local knowledge of valuers applying their own expertise.
Mr Sheridan says that Denburn and Strathisla are broadly comparable. They are of stone and slate construction. They are on main roads and very close to adjacent properties. He sees no distinction between these locations. The only difference he points to is size. Strathisla is only 57% of the size of Denburn. Given that difference in size he attributes a value of £85,000 to Denburn.
Mr Bowers notes that Strathisla has one less bedroom than Denburn, but he considers it to be in a better condition, and a better location with more garden ground to the front. He considers the suburban location of Strathisla to be preferable to the town centre location of Denburn. He considers the evidence from sales of houses in other suburban locations such as 15 Grampian View, Beech Bank and The Hirsel all to be superior to Denburn. These observations supported his opinion that Mr Sheridan’s estimate of its no-scheme value was excessive. He did not attempt to place a value on Denburn.
The Tribunal inspected these properties from the outside. We observed that Strathisla was in better condition than Denburn which displayed signs of lack of maintenance. Although both properties are on main roads the volume of traffic pre-scheme at Denburn (the same as that now on the most heavily trafficked leg of the by-pass) would have been very much greater than the relatively light (unchanged) traffic on Blairgowrie Road. We consider the location and surroundings of Strathisla to be preferable to those of Denburn. Strathisla is not in a wholly residential location (there is a fire station diagonally across the road from it) but it is associated with houses of similar size and quality setting a certain tone of residential desirability. On the other hand Denburn is in the town centre amongst a variety of land uses with various types of buildings. The overall impression of the town centre is that it is somewhat economically run down. In our opinion the location of Denburn is significantly less attractive than Strathisla. Experience of the pre-scheme situation, when traffic including heavy vehicles would be passing immediately beside the property could have only reinforced that view. To an extent these views must be subjective and we limit ourselves to saying that we agree with Mr Bowers on his view that the no-scheme value of Denburn attributed by Mr Sheridan is excessive.
Finally we consider the subjects at 5 Queen Street. This house is on two floors with a lounge and bathroom on the ground floor, a porch at the rear, and two bedrooms on the first floor. Also on the ground floor are a bedroom and kitchen which occupy space in the house next door, 3 Queen Street. The front is close to the heel of the narrow pavement. The wall on the front boundary is buttressed making it difficult to access the rear of the property. At the rear there is a small yard between the side of the house and the Tolbooth, an ancient tower. There is a path running across the property at the rear of the house beyond which is an extensive garden. At the site visit Mr Croll confirmed Mr Bowers’ evidence that the garden did not belong to him, but to the proprietors of the neighbouring factory. He had paid them a nominal rent, but this had lapsed in recent years. He was in no doubt that a sale of his property could not include the rear garden. Mr Bowers had calculated the overwall area at 110 m2. Mr Sheridan thought that the overwall area should be 140 m2 and it may be that the two rooms embedded in 3 Queen Street were not included in Mr Bowers’ figure.
Comparing this property with Mr Bowers’ comparables we have no difficulty concluding that his estimate of no-scheme capital value is to be preferred. Being so close to the trunk road, where it fits tightly between the adjacent buildings, with no garden at the rear and with the undoubted complications posed by its structural relationship with the neighbouring house, we believe that this property would be difficult to market.
From a position at the rear of the property the noise from the A923 was noticed as being particularly intrusive. The new source of noise from the western leg of the A94 was also noticeable and intrusive.
The sales recorded for this section of Queen Street indicate that it is characterised by properties which have had low values. Having regard to the limited garden ground, the internal and external physical features, the condition of the property and the age of the internal fittings we are of the opinion that these subjects have been correctly valued by Mr Bowers. We accept his opinion that the comparative properties that he referred to in Queen Street and Dundee Road suggest that Mr Sheridan’s figure is too high.
We therefore conclude that the no-scheme values are questionable when tested against such market information as is available. The values argued for by Mr Sheridan are not supported by the evidence and the no-scheme values for Denburn and 24 George Street are more likely to be nearer those suggested by the respondents. In particular we do not accept that the market evidence demonstrates a fall in value of Denburn of the scale submitted by the claimants.
We now turn to consider Mr Sheridan’s comparables. He referred to these for support for the degree of injury he said had been suffered by Denburn, and, by association, by Klydon House.
The first to be considered are 1& 2 Grayburn Flats. Number 1 was sold in April 2001 for £45,000 and Number 2 in October 2001 for £42,000. On Mr Sheridan’s estimate of no-scheme value and his understanding of the selling prices, these properties showed losses of 9.4 to 11%. He considered the level of loss to be proportionate to his estimate of loss at Denburn and Klydon House for the reason that they were less valuable properties (Hallows). He had agreed a settlement of £1,500 or 3% of his estimate of no-scheme value. On the respondents’ estimate of no-scheme value neither property suffered any loss. We accept the respondents’ no-scheme values where the likelihood is that such values may have been overstated. However, allowing for the difference in time between the valuation date and the sales dates these properties could have shown losses of around 3%-4% at the valuation date.
Because of their situation in back-land behind Union Street and High Street the betterment, if any, enjoyed by these properties would be much less than those fronting these streets. On the other hand they are very close to the by-pass and Mr Sheridan considered that they would suffer more from dust and diesel particles. Overall the impact of noise from the by-pass would be greater at these properties than at the three subjects in George Street and Union Street. He was therefore certain that they must have suffered a reduction in value and that the evidence of the respondents, demonstrating no loss, must be wrong.
The situation here is complicated relative to the other properties affected by the public works for a number of reasons. These properties were eligible for grant for double glazing. That right would ameliorate the injurious affection caused by noise and dust, and therefore modify the amount of any further compensation in comparison with other affected properties. As flats with drying areas but without gardens, they are less affected by noise than occupiers of houses who also seek to enjoy the use of their gardens. Although the evidence is not conclusive the rate of growth of flatted property in this part of Coupar Angus may have been lower than that for houses. We question therefore whether these subjects are suitable as direct comparables with the subjects which are all higher value houses in dissimilar relationships physically to the public works.
1A High Street had an agreed no-scheme world value of £28,000. It sold for £27,000 in December 2000. A settlement of £1,000 or 3.6% of the estimate of value was accepted by the owner and the subsequent sale price suggests that that amount was about right. This property (and the other flats in the building) are side-on to the by-pass and face on to High Street. The High Street, with traffic removed and pedestrianised, must provide real betterment to the general amenity of these properties. The by-pass traffic which would have passed in front of them is now at the side and slightly more removed from them. However, they are next to the traffic light controlled junction and the overall effect of the noise from the by-pass must be considerably greater than that of the subjects on George Street and Union Street. It appears to us that the betterment has gone a considerable way to reducing the overall impact of the changed source of noise affecting this property. That serves to explain the level of settlement, but does not make it easy to use in direct comparison with the subjects.
Among the settlements made Pinewood has the highest percentage of capital value paid as compensation (£2,000) at 4.9% on the respondents’ no-scheme world value of £41,000. Pinewood sold in May 1998 for £39,000 suggesting that the level of compensation was adequate. Pinewood and its neighbour Burnside are located in the gardens to the rear of properties fronting on to George Street. They have therefore enjoyed little benefit from the removal of traffic from there but they are now considerably nearer the principal source of noise than properties such as 24 and 56 George Street. For these reasons we would have expected the net degree of impact of the physical factors to be greater than on properties fronting on to George Street or Union Street.
12A George Street had a no-scheme world value of £35,000. It sold in November 2001 for £32,000 (a loss of 8.6%). A payment of £850 (2.4%) was agreed with Mr Sheridan. 12B George Street was valued by Mr Bowers at £28,000. We accept this as the no-scheme value. It was sold in July 2001 for £26,000 (a loss of 7.1%). Mr Sheridan said that the property was ‘in a bit of a state’. A payment of £850 (2.4%) was agreed with Mr Sheridan. The losses experienced by these properties in a block of former local authority flats are distinguishable from the general rise in property values apparent in George Street already referred to. The levels of settlement are consistent with others made in George Street but the changes in value are out of line with other properties in George Street. This is suggestive of a factor or factors other than the effect of the public works operating on the value of these properties.
Summarising our findings on the evidence of these comparables, we conclude that they are not useful for making a direct comparison with the subjects. Their locations and other physical circumstances make comparison of the degree of injurious affection difficult. The proportionate relationship they bear in respect of percentage of no-scheme value loss to no-scheme value itself is therefore incidental; and not demonstrative of the ‘Horton principle’ in operation.
Our analysis, however, tends to show that the degree of loss suffered at those subjects is more probably in the range of 3%-5% than in the range of 3.6% to 13.3% suggested by Mr Sheridan.
On our consideration of the evidence we are unable to find any higher levels of depreciation caused by use of the relief road, balanced as it is in three of the cases against considerably diminished use of the street immediately on the other side of the houses.
Considering all of the evidence we start by observing that the range of percentage loss of no-scheme values identified above is close to the range established in settlements for properties in broadly similar circumstances. For reasons given earlier we do not accept, in these cases, that the evidence of settlements is displaced in its entirety by market evidence. We do accept that market evidence may prove loss better than reference only to settlements, but the market evidence in these cases tends to support the veracity of the settlements rather than overturn them.
Although comparisons such as the Grayburn Flats, 1A High Street and Pinewood may have been affected differently and, at least in the case of Pinewood more severely, than properties located on George Street and Union Street with large gardens behind them, the market evidence tends to support the tone established by the settlements.
We note that at Denburn there was a settlement of £2,000 or 2.8% of £72,000. If the no-scheme value had been £85,000 then the percentage would be 2.4%. Regardless of the percentage figure the amount was considered acceptable by the parties. For reasons already given we are satisfied that although Denburn may have fallen in value, against the trend, it appears to have been for reasons unconnected with the public works.
Given, as witnesses agree, that Denburn, Klydon House and Burnlea are all similarly affected by the scheme we consider that compensation for injurious affection resonant with that established for the other two houses would be would be appropriate for Klydon House. We accept the respondents’ figure of of £2,500, (equivalent to 2.6% of the no-scheme value of £95,000).
Millburn at 24 George Street has shown an apparent loss although again against a trend in rising values. We accept the respondents’ figure of £2,400 (2.8% of the no-scheme value of £85,000).
For 56, George Street we accept the respondents’ figure of £1,300 (2.5% on a no-scheme value of £53,000).
For 5 Queen Street we accept the respondents’ figure of £1,350 (2.9% of the no-scheme value of £46,000).
It may be noted that these amounts, and the percentages of no-scheme value that they represent, do not display any linear relationship between no-scheme value and degree of compensation. We appreciate that this was a phenomenon which Mr Sheridan considered applicable in these cases, and which we feel intuitively to have merit. One reason why it may not manifest itself in these cases could be that the awards are relatively small amounts, reflective more of the circumstances of each instance, making the identification of any gradient of degree of loss less likely. The settlements already made in Coupar Angus with the two firms involved do not show any such relationship, possibly for the same reason. Whatever the reason the circumstances here, as evidenced from the settlements, are different in that respect from the circumstance of settlements elsewhere which Mr Sheridan used to illustrate the point.
Applying also the apportionments in the cases of 5 Queen street and 24 George Street, we therefore award the following sums:-
|Klydon House, Union Street||2,500|
|5 Queen Street||1080|
|24 George Street||1,920|
|56 George Street||1,300|
In terms of Section 3(5) of the Act, the applicants are entitled to payment of reasonable valuation or legal expenses incurred. Mr Sheridan sought awards of expenses on the basis of ‘Ryde’s’ scale, with two awards in the two cases with more than one claim, and also with an addition of £100 in relation to each of these two cases, to take account of extra work to which he says he was put because of what he considered to be the respondents’ unreasonable approach in these cases, for example in relation to certifying the relevant date in these cases. Mr Thomson, on the other hand, argued that even if he was wrong in relation to these earlier claims, it would still be inappropriate to award expenses on any other basis than that there were in reality single claims, there being no suggestion of any actual injurious affection at the time of the opening of the private access road.
We consider that Mr. Sheridan is entitled to two separate awards of expenses in these two cases, but not to any additional sum. While it is true that the assessment of depreciation in the two cases was essentially a single exercise in each, we are satisfied that some further work was reasonably necessary. Scale awards such as ‘Ryde’s’ scale awards are necessarily inexact, reflecting a degree of ‘swings and roundabouts’, and we are satisfied that the demands of these cases justify these awards. For the same reasons, and also because we are not persuaded that the respondents caused any extra work by their approach and conduct of the process of negotiation, we do not consider that any additional sums are warranted.
The applicants are also entitled to interest at the statutory rates in terms of Section 16 of the Act, and in the cases of 5 Queen Street and 24 George Street this also will require two calculations.
We were informed that parties had sensibly agreed that any award of expenses in relation to these applications would be limited to the various Tribunal fees incurred. The question whether any such award should be made was not, as we understand it, the subject of any agreement and would therefore require to be considered, following our normal procedure, on the basis of written representations should either party seek an award.