Lands Tribunal for Scotland

OPINION

The Danzan Trust & The Dundas Trust
v
Edinburgh City Council

Introduction

[1] This application is a claim under the Land Compensation (Scotland) Act 1963 in relation to land comprising part of the Dundas Estate, near Kirkliston, taken under the Edinburgh M9 Spur Extension/A90 Upgrading (A8000 Upgrading) Compulsory Purchase Order 2002. The respondents are the acquiring authority.

[2] The applicants are the Danzan Trust and the Dundas Trust, who jointly own the parcels of land compulsorily acquired for, and injuriously affected by, the road scheme. It is a matter of agreement between parties that the areas to be affected by servitude rights of access should be treated as having been lost to the estate and accordingly, for purposes of assessment, such areas fall to be treated as land taken. The claim in respect of the land taken falls to be determined in accordance with section 12(2) of the 1963 Act. We require to determine the amount which the land, if sold on the open market by a willing seller, might be expected to realise. Parties were agreed that the relevant date for valuation purposes was 7 January 2005.

[3] The land acquired, together with the land subject to the injurious affection claim, can be taken to be in agricultural use at present although a small area is let to a company, Bedlam and used for “paint ball” gaming. The applicants have the benefit of a certificate of appropriate alternative development (hereinafter referred to as a “CAAD”) issued under section 25 of the Act. As will be seen, this certificate allows for a 27 hole golf course development over approximately 400 acres of land.

Representation

[4] The applicants were represented by Miss Ailsa Wilson, Advocate and the respondents by Mr Ralph Smith QC and Mr Alistair Burnet Advocate. The following witnesses were led by the applicants:- Mr David Seed, Chartered Surveyor, of Seed and Co Ltd; Mr Michael Jones, a golf course architect, of Par 72 Ltd; Mr Michael Reid Thomas, Chartered Surveyor of Davidson and Robertson Ltd; Mr Gordon King, Chartered Surveyor, of Baird Lumsden; Mr Steven Fraser, an acoustics consultant of The Airshed Ltd; and Mr Michael Wood a landscape architect and golf course architect. Mr Smith led evidence from:- Mr Jonathan Gaunt, a golf course architect of Gaunt Golf Design; Mr Mark Smith, Chartered Surveyor; Mr David Mitchell, Chartered Surveyor of the Valuation Office Agency; Mr Mike Lowry, Estates Surveyor, City of Edinburgh Council; Mr Paul Maddock, an acoustician; and Mr Alex Paterson, roads engineer, also of City of Edinburgh Council.

Procedure followed

[5] In course of the evidence of Mr Reid Thomas, on the third day of the hearing, it became apparent that while the main dispute between parties related to the question of whether the land had an enhanced value as a golf course, parties were not in fact agreed as to the base value. The respondents considered this to be agricultural value without any enhancement for location. They contended that the suggestion of a supposed enhancement arising essentially from proximity to Edinburgh fell to be treated as a claim for hope value and that no notice of such a claim had been given. Having regard to the terms of the written material lodged, we considered that the applicants should be allowed to contend that the value of land in agricultural use close to Edinburgh was higher than that of similar land in a more remote location. It was recognised that this might turn, implicitly, on an element of hope value and that it might be necessary to make special arrangements to allow the respondents to answer this contention. At that stage it was clear that there would, in any event, require to be an adjourned hearing to complete the evidence. Mr Smith also pointed out that any claim for hope value might be met by an assertion of betterment as access to the lands would be greatly improved by the relief of the A8000. We eventually advised parties that we would be prepared to deal with the case in two stages to allow the time available to be used to determine whether the land had an enhanced value as a golf course. We understood that parties were agreed that this turned on the question of whether it had characteristics which would attract international investors. We understood that parties were agreed that the local or national market for golfing developments would not be prepared to pay more than existing use value. After an adjournment counsel intimated that they were agreed that the case could be dealt with in two stages. They intimated the first stage should deal with the restricted issue of whether the site had an enhanced value existing on account of the international golfing market. We noted this agreement as sufficient to allow the hearing to proceed on a restricted basis but requested that parties should set out their precise agreement in writing.

[6] Although five days in November had initially been allocated for the hearing, it soon became apparent that this would be insufficient even on a restricted basis. It proved possible to allocate a further five days in December. Prior to the second week a Joint Minute was lodged narrating parties’ agreement that the matter to be determined by the Tribunal was as follows: “Whether the land value has an enhanced market value in the no scheme world and with the benefit of the CAAD for a 27 hole golf course development. In the event that injurious affection and severance require to be assessed on the foregoing basis, the amount of compensation which is properly due”.

[7] We noted that this agreement made no reference to our understanding that the issue turned on the existence of demand on the international market. We intimated that we would not regard ourselves as bound by the formulation of the issue adopted by parties and reserved the right to make our findings in light of the evidence as it emerged, there being no doubt that the essential agreement was that parties did not require to explore in detail the issues of value which would arise if we were not satisfied of such international demand. Parties did not suggest that it would be inappropriate for us to proceed in that way.

[8] We heard evidence bearing on the first stage from 20 to 24 November 2006 and 18 to 22 December. We heard submissions on 15 January 2007. We carried out various informal site inspections of the reference site, with an accompanied visit on 9 January 2007. We also made informal visits to Kingsbarns, Dundonald and Archerfield.

Authorities

Hull & Humber Investment Co Ltd v Hull Corporation [1965] 2 QB 145
Grampian Regional Council v Secretary of State for Scotland 1984 SLT 212
Young v Lothian Regional Council 1992 SLT 18

Statutory material

Land Compensation (Scotland) Act 1963 as amended by the Planning & Compensation Act 1991
Roads (Scotland) Act 1994

The issues before us

[9] Although we heard a good deal of evidence bearing on value on the domestic market, parties were, in fact, agreed that, at the valuation date, the economics of the domestic market were such that the prospect of developing the land as a golf course would not enhance its value above the existing use levels. We had no doubt that they were at one in understanding that the broad issue to be determined at this stage was whether the subjects would attract a buyer on the international market, although they approached that using slightly different terminology. They were agreed that if such a buyer would have been interested, he or she would have paid at least £10,000 per acre. They were agreed that we could accept that figure.

[10] Because of the procedure adopted, a good deal of evidence was led which does not appear to have any direct bearing on the issues now before us. We heard a good deal of evidence on the background to the current running of the Estate and its future intentions. It was clear that the practical running of the Estate was controlled by Sir Jack Stewart-Clark, the former owner. Both counsel addressed in detail the question of Sir Jack’s actual intentions in respect of development of the land but were agreed that this did not bear on market value. Because it was agreed that there would be no commercial attraction sufficient to encourage a local developer to invest in the course, there were no financial projections. In particular, no attempt was made to show potential revenue. In absence of any attempt to provide a full financial assessment we see no point in setting out evidence about elements of cost or expressing any view on such matters. However, it may be noted that we heard various pieces of evidence bearing on this. We heard of the intentions of Mr Jones. He had detailed proposals for development of a course which would be of championship standard and capable of attracting international golfers. He did not propose a comprehensive irrigation scheme. He saw no need for a full artificial drainage system. He did not intend use of golf buggies and accordingly had no provision for buggy tracks. These elements would have added to cost. We have not attempted to take a view as to whether a developer would wish to include them.

[11] We heard a good deal of evidence about potentially comparable transactions. This included evidence given by agreement in camera to deal with Mr Reid Thomas’s knowledge of certain transactions where he could not disclose the identity of the potential purchaser. He could not disclose the locations as that might have provided too obvious a clue to identity. Few of the transactions referred to were said to have any bearing on the issue of demand by the international market. It is unnecessary for us deal with evidence of domestic purchases. The evidence of land sold on the international market for development is, of course, relevant to assessment of demand. As there is no dispute over value, it is unnecessary for us to examine the detail of the financial aspects of these transactions.

General background

[12] Although the material bearing directly on the issues now before us is limited, we set out some general background to set the scene. Where we have not found it necessary to make positive findings on disputed issues we have simply narrated the evidence of witnesses where appropriate to complete the picture.

[13] Although the reference land is divided between Danzan Trust and the Dundas Trust and other parts of the Estate are held by different trusts, it is convenient to refer to the whole as Dundas Estate. This extends to approximately 1000 Acres and lies a few miles west of Edinburgh and about 1 mile south of the Forth Road Bridge. It straddles the A8000 road which connects the M90 Motorway spur at Kirkliston to South Queensferry.

[14] Dundas Castle occupies a central position in the section of the estate lying west of the A8000. It lies in parkland setting with mature trees and a small loch. A 9-hole golf course, currently let out, has been formed within the policies. To the west, the estate initially rises gradually from the A8000 but towards the western extremity there is a raised area, partly rocky, with an outlook over the whole estate and beyond. A stone boundary wall bounds the estate on both sides of the A8000.

[15] The reference site lies east of the A8000 and is mainly arable with isolated woodland belts. It is in three main sections being divided by another public road, Milton Farm Road, and by the railway line from Falkirk to Fife. A “farmer’s bridge” allowed limited access across the railway line. A former steading, at the junction of the A8000 and Milton Farm road, now in a run down condition is partly occupied, under a short term arrangement by a firm of fencing contractors. Part of the largest wooded area has been let, again on a short term basis, to Messrs Bedlam, a “paint-ball” company. Another former steading known as Craigbrae, is located within the section to the east of the railway. The house part of this steading is in a third party ownership. The track to it is burdened by access rights. The part lying between the A8000 and the railway is generally undulating but with a dip at its northern end where the Dolphington burn runs through it. The land to the east of the railway is also undulating apart from land adjacent to Craigbrae steading which rises on an escarpment. On plan the Estate land east of the railway is in two irregularly shaped sections joined at a narrow part near the railway line and just west of the hill at Craigbrae.

Estate Ownership and Recent History

[16] Sir Jack Stewart-Clark inherited the estate in about 1993 on the death of his mother. It was then in a run down state with considerable decay affecting the castle. The main castle was built in the early nineteenth century but it also features a fifteenth century keep. He embarked on a programme of repair, improvement and upgrading based on the introduction of business ventures to the castle and its policies. The castle and keep are now restored and able to be occupied. There are a number of public rooms and bedrooms all available for wedding parties, business retreats and for other functions. Visiting parties are offered full use of the castle and its policies and have rights to tee times over the 9 hole golf course. Sir Jack and his wife occupy a suite of rooms in the castle. Estate staff occupy a number of rooms as offices.

The Roads Scheme

[17]The A8000 is a single carriageway road which has been little improved over the years. It is inadequate both in terms of capacity and form and constitutes a bottleneck in the roads network. Early discussion of upgrading had centred on “dualling”. In 1997, however, the Scottish Office placed a moratorium on all new roads schemes pending a review of all trunk road schemes. The conclusions were not published until late in 1999. For the A8000 it proposed an extension of the existing M90 spur to run immediately parallel to, and west of, the Falkirk-Fife railway line and to connect to the A90 Edinburgh-Queensferry Road. This proposal was accepted by the Transportation Committee of the City of Edinburgh Council in March 2000. On 22 July 2004 Scottish Ministers confirmed The Edinburgh M9 Spur Extension/A90 Upgrading (A8000 Upgrading) Compulsory Purchase Order 2002 (the CPO) which had earlier been issued by the City Council. This authorised the acquisition by compulsory powers of land needed for the new roads scheme as well as the acquisition of any necessary servitude rights. The route of the proposed road takes it through the reference land. On completion of the new road the existing A8000 will revert to a local road connecting Kirkliston and South Queensferry. Entry to the land required for the road was taken by the respondents on 7 January 2005 and this is the date at which compensation requires to be assessed. Construction is now well under way.

[18] The total area of land referred to in the CPO as subject to outright acquisition or servitude was 32.6635 acres. The area of the remaining land of Dundas Estate lying east of the A8000 is 365 Acres. In respect of this land a claim is made for injurious affection.

The Estate’s Development Plans

[19] As part of the Estate’s desire to focus future activities on commercial use, discussions were held in 1993 with solicitors and town planning consultants regarding the development opportunities available within the then current town planning constraints. These centred on golf use but additionally considered limited areas of housing as well as leisure. Discussions were held with Gleneagles Hotel in regard to a joint venture for a “golf academy” on the land to east of the railway at Craigbrae Cottage. The aim was to replicate the Gleneagles type of facility at Dundas taking advantage of its location close to Edinburgh Airport as well as the city itself. Gleneagles decided not to proceed with this proposal.

[20] In 1995 a professional team was drawn together headed by the estate’s solicitors and further work was undertaken to review the opportunities open to the estate. An application was made in 1995/1996 for grant assistance towards the costs of the research to Lothian and Edinburgh Enterprise Limited (LEEL) who offered a maximum contribution of £13500. Informal discussions with the local town planners determined that “golf use”, either an academy or a course or courses would generally be acceptable development within a designated Green Belt but that ancillary development, including hotel and housing would not. No business plan or feasibility study was prepared.

[21] LEEL were notified in November 1997 that the estate was taking no further action in regard to the golf academy proposal following the “call-in” by the Scottish Executive of all strategic road schemes.

[22] At a casual meeting in course of a Christmas function in 1998, Sir Jack spoke to Mr Mike Jones, of the golf course design company Par 72, about the development of a golf facility on the estate. Mr Jones had formerly been a brigadier in the Army from which he retired in 1989. He had supervised the building of an army golf course in Yorkshire and been responsible for designing a course within the British camp at Dortmund in Germany. On retiral he had set up Par 72 with a view to developing a business in golf course design. Mr Jones is a keen amateur golfer and has played many courses throughout the world. His most significant instruction was to be project manager for the building of the Hever Castle course in Kent, the original architect being Peter Nicholson a well known golf designer. Mr Jones required to take responsibility for extensive minor design works. Hever Castle is regarded as a very attractive course. It hosts County Championships. It was placed within the top ten new golf courses in the year 1994.

[23] Mr Jones was instructed to prepare a scheme for a championship standard golf facility on the reference lands. He spent some time at the site on 9 and 10 April 1999. He apparently assessed the potential of the site for two 18-hole courses but eventually decided that the best use of the land as a top class golf facility would be as a 27-hole unit. Mr Jones produced plans designated “Illustrative layout for a Golf Academy and Three Nine Hole Golf Courses”. His scheme involved three 9-hole courses, respectively designated “The Loch”, “The Gorse” and “The Woodland”. He explained that the “Loch” would seek to emphasise the water features and hazards; the “Gorse” would be a Highland type of course; and the “Woodland” would be parkland with trees. However, the 3 courses were not discrete but intermingled and the scheme utilised all 400 Acres lying east of the A8000. It incorporated a driving range and clubhouse at the site of the old steading at the junction of the A8000 and Milton Farm Road. It did not show any car-parking facility nor facility for green-keeping equipment.

[24] The land requirement for an 18 hole golf course is normally 150 to 200 Acres. The Par 72 design was a very low density scheme. It provided ample scope for separation of holes and for creation of banks and bunds.

[25] The illustrative layout involved crossings of Milton Farm Road as well as the railway line by that road and by way of the Farmers Bridge. Mr Jones said that the elevated land at the escarpment as well as the wooded area was to be used to create two signature holes. He used the term “signature hole” as meaning one which is distinctive and likely to be memorable to players of the particular course. It would become one of the images of the particular golf course. For completeness it may be observed that the term “signature hole” may be used meaning a hole which encapsulates the characteristics of a particular course rather than one which stands out. It was not used in that sense before us.

[26] No detailed site investigations were carried out; there was no topographical survey and no measurement survey, and no soil tests were carried out. No investigations of the extent of soil required to be imported to the site or any detailed costings were prepared.

[27] On 11 April 1999, Sir Jack wrote to thank him Mr Jones for his work and to advise that “implementation of the plan would be a few years down the line as the estate would need firstly to deal with a parkland course on the west side of the A8000 and get clarification of the road plans for the Forth Bridge.” At that stage Mr Jones had produced a plan showing the lay-out of holes by simple lines. He was later asked to show the holes in a more complete way and produced a plan purporting to show outlines of the edges of fairways and shapes of greens. This was the result of a desk exercise. The reference land is mainly featureless farmland. In evidence, Mr Jones explained that the holes would require extensive shaping, partly by moving existing material but also using a good deal of infill.

[28] Local developers engaged in major construction works may be able to provide suitable infill material and to pay for its disposal. Accordingly use of imported material could reduce costs. The need to be able to source large volumes of suitable material and to take careful steps to ensure that it is “clean” may give rise to problems of timing of construction. There would be constraints on the use of the A8000 for that purpose. In particular lorries would not be allowed to access the site at peak traffic times and during the working day would be limited in numbers.

Certificate of Appropriate Alternative Development

[29] Following unsuccessful discussions between the applicants and the respondents in an attempt to persuade the latter that compensation should be assessed on the basis of use of the whole land as a golf course, an application was made by the respondents for a CAAD under section 25 of the 1963 Act. This was issued by The City of Edinburgh Council on 14 December 2004 stating that “…planning permission would have been granted for the development of the said land as part of a standard 18-hole golf course. Planning permission would not have been granted for the development of the said land as part of a 27-hole golf course, consisting of three 9-hole courses”.

[30] This certificate was appealed and, following an Inquiry the Scottish Ministers upheld the appeal deciding, in terms of section 26(2) of the 1963 Act that the CAAD issued by the City of Edinburgh Council should be varied to remove the 18-hole restriction and to allow “a total of 27 holes, organised into 3 nine hole golf courses.” The evidence submitted to the reporter on behalf of the applicants had been to the effect that the course would be organised in such a way that, at any given time, one 9-hole course would not be in use. This was to allow maintenance work. The full 27-hole lay-out would only be in play for about 20% of the time. The proposal also included a modest golf club-house designed by Mr Jones, at the request of Sir Jack, for that purpose. However, no conditions were imposed in the issuing of the certificate. A question arose as to whether a developer would have to face the risk of conditions in relation to these matters.

[31] After the CAAD had been obtained, negotiations did not progress further. The respondents’ representatives argued that there was no demand for golf courses sufficient to lift the value beyond current use value. Mr Reid Thomas who was conducting negotiations did not attempt to invoke the international market as the basis of his claim to an enhanced figure. He had been involved in several attempts to buy land for golf course use on behalf of undisclosed buyers. He was constrained by obligations of confidentiality. However, he disclosed as much as he could to the respondents’ valuers in an attempt to persuade them that figures discussed in his negotiations were entitled to weight. There would have been no reason not to say that the purchasers were not to be assumed to be local had there been any international element.

The market for golf courses in Scotland

[32] The market for golf courses in Scotland can be split into 3 different categories. The lowest end involving courses which are not developed to a high standard comprises, generally, small businesses providing basic golfing facilities to a local market. These can be characterised under the heading of “lifestyle” businesses and are generally developed or run by local businessmen who have a keen interest in the sport. The value levels associated with these ventures are modest and the business is unlikely to justify any bare site value above agricultural value. At a more significant level there is the commercial market which comprises more substantial business operations. The courses are likely to be longer and the clubhouse facilities more substantial. The capital costs associated with their construction and running make these businesses marginal particularly as they compete with established private members clubs. It was agreed that the national commercial market would not pay more than agricultural or current use value and it may be observed that this agreement tended to support the respondents’ doubt as to the weight which could be attached to the evidence derived from Mr Reid Thomas’s material. The highest end is comprised of the international market. This market is based on provision of a course which will attract local and foreign player (typically affluent American) and there is normally a strong foreign involvement in the development company. Scotland is an established world class venue for overseas visitors seeking to play golf and is a part of this international market.

[33] Although courses come in infinite variety a broad distinction is usually drawn between links and parkland courses. Scotland’s links courses are its most widely recognised type. These incorporate sea-side dunes which establish a distinctive character for the course and affect the nature of the game played. In general, links courses do not have installed drainage systems (the sandy nature of the sub-soil assists drainage) and very often only limited watering facilities. The preponderance of links courses are on the east coast of the country but there are several in Ayrshire at Prestwick, Troon and at Turnberry.

[34] Parkland courses tend to have flatter fairways and to use trees both as visual features and as part of the playing characteristics. They make use of water to create interesting hazards. There are no established courses of championship standard in Scotland combining both links and parkland characteristics.

[35] Several world class courses have been developed in Scotland in the last 15 years; others are under construction and at least one more is proposed. There is no one feature which secures a course its categorisation as world class. It may derive from its location, the nature of the design of the course, the quality of course construction or from the association with an internationally renowned golf course architect or designer. A high standard of maintenance and upkeep can be assumed as essential. The international standard courses developed recently in Scotland tend to have been operated as clubs with some limited scope for “pay and play”. Establishment of a base of private members provides an early source of capital.

[36] Much of the individual character of a course can be created during construction, but at a cost. Links style holes can be formed by appropriate mounding on a non dune location. Water features can be created where an adequate water supply exists. A recognised feature of good design is that it will incorporate the existing features of the site and any significant external landscape views or other aspects of geographical or historical interest. Part of the skill of the designer is in the manner in which he blends the individual hole designs and features with the existing topography, scenery and local characteristics.

[37] The reference site has few positive internal features able to be incorporated into a designer’s proposal. The Dolphinton Burn provides a supply of water and allows the creation of artificial ponds to provide water features. The hill or escarpment at Craigbrae provides a facility for an elevated green and tee. From a playing point of view the slopes involved will not necessarily add to the attraction of the course but the hill will provide the best views from the course. The potential attraction of this site seen purely as a golf course depends on the fact that for the most part it presents a blank canvas for the designer and the fact that it provides some opportunities to take advantage of external features or views.

[38] Several of the new international courses have ancillary commercial facilities as part of the overall development. Features such as housing, hotels, or leisure facilities may go to meet part of the development costs of the golf course or to provide a potential for ultimate gain from the development as a whole. It was not suggested that there was any prospect of such additional development to attract prospective purchasers of the reference site.

[39] Recent developments in Scotland which come into the category of international standard courses have been established at the following locations:-

  1. Kingsbarns, near St. Andrews. This is an 18-hole course by the sea which was formed on non links land, namely, good quality arable fields. A links course has been created with wide sea views. There was no dispute that it was a stunning venue. This course is operated wholly as a pay and play. This is due, in part at least, to funding, provided by the R & A, which compensates for lack of capital from members. It is able to operate with a smaller clubhouse than would be required for a members club. The early history of the development was not clearly established but we understood that it had run into financial difficulties. The present course was part of a second or third stage development and was built by a designer of the highest international repute. The course is a short distance from St. Andrews and benefits from association with that as a very famous golfing location and from association with the R and A as funding participants. It is near the St Andrews Bay courses and the newest St. Andrews course (No.7).
  2. St. Andrews Bay. There are two 18-hole courses and an associated large hotel and leisure club on the outskirts of St. Andrews. The courses were designed by Bruce Devlin and Sam Torrance as links courses. They overlook the sea. There was no evidence that they would have been built without the potential for gain arising from the hotel and leisure facilities.
  3. Archerfield, East Lothian. Two courses have been completed by local developers at Archerfield. There is a substantial housing development associated with them and part of the development involved renovation of a substantial country house which now functions as a conference centre or venue for similar events. We do not consider that these have much bearing on prospective international demand for the reference site. However, the current development of the “Renaissance” course was founded on by both parties as providing points of comparison, positive and negative. At the start of the development the land was substantially covered with pine trees. There was accordingly little view of the sea. However, it would have been obvious that it was set in renowned golfing country, immediately adjacent to Muirfield and beside the dunes. Planning permission allows construction of bedroom accommodation on site as well as a limited number of house plots. In assessing its comparative potential as a bare site, a developer would be aware that by clearing trees dramatic sea views could be obtained. He would be aware that the historic connections of the site could be exploited. The estate had held a golf course used by many of the great names of early golf and by Prime Ministers. The site could be marketed on the basis of its location in East Lothian and as being adjacent to Muirfield. There was no dispute that these were all powerful factors on the international market for golf. The Muirfield course has a pre-eminent reputation in golfing circles.
  4. Luss. Originally part of Luss Estates and containing the former stately home “Rossdhu,” this is a parkland course of 18 holes positioned on the shores of Loch Lomond. It offered the immediate benefit of a stunning location beside Loch Lomand with ample opportunity for the designer to utilise natural lochside topography as part of the dramatic attraction of the course. The site is in a tranquil location. A developer would recognise the powerful marketing tool available from the reputation of Loch Lomand as a world famous beauty spot. Although it is, of course, an example of an inland location, we are satisfied that the potential of this site so far exceeded that of the reference site so that no useful inferences can be drawn from its attraction to the international market.
  5. Dundonald or Southern Gailes. Located on the Ayrshire coast, its neighbours are the long established Glasgow Gailes and Western Gailes with the latter, in particular, being a renowned course. The land was used for rough grazing but was of a typical sandy links character. Although the site was separated from the sea by the railway and by Western Gailes, it affords various sea views and its status as a seaside course is not in doubt. The site was offered to the market by the Irvine New Town Development Corporation. It was widely advertised. There was no evidence of specific advertisement overseas but we accept, on balance of probability, from the evidence of Mr Smith that the availability of the site would have been known to specialists in the American market as a result of exposure in golf magazines. It was bought by a local business man at a price close to its agricultural value. Kyle Philips, an internationally renowned golf course designer was appointed to design and construct the course with a view to forming a high standard, 18 hole, links course on the site. There was some confused evidence as to how far the course was completed before the original developers ran out of money. Because of this confusion we took account of evidence provided at our site inspection. This was to the effect that the course had been completed to the extent that it was playable as an 18 hole golf course but aspects of it were incomplete and the surfaces of greens etc. had not been brought up to a proper playing standard. The part completed course was acquired by the owners of the Luss club at Loch Lomond to become part of their “stable” of golf courses. In short, although the course had no established reputation based on use, it had a reputation as a course designed by a renowned designer.

    To the east of the course stands a very large pulp and paper mill. This dominates the view to that side but is a little distance from the course and not intrusive. We heard reference to a sewage pumping station to the north but are satisfied that it is of no significance being out of sight and sound of the course. There are open views in other directions and sea views to the south and west, including views of the Arran hills and Ailsa Craig.

  6. Balmeddie. Most recently Donald Trump (an American property and golf course developer) acquired approximately 760 acres of dunes and links north of Aberdeen in 2005 without planning permission. It was not disputed that regard could be had to this transaction as relevant to assessment at valuation date. He is seeking planning consent for two 18-hole golf courses (including at least one championship one) as well as a hotel, timeshare units and large numbers of private houses. Mr Trump has repeatedly emphasised his desire to build a links course. Grant of planning permission even for golf course with associated club house, is by no means certain but if he does get permission for a large housing development he would expect to make a very large profit from the site. Because of the express reference to the importance of links and the clear potential for profit, we do not accept that this transaction provides any sound basis for judgment of the potential of the reference site. Mr Trump’s acquisition of Balmeddie has been accompanied by a significant marketing initiative promoting his proposals. These involve very extensive non golf development. In any event it seems clear that the “Trump” name is, itself, a key factor. Simply by putting that name on the site the proposed course has been established as a potential golf venue.

Site inspection

[40] The obvious way to approach the site is from the A8000. From that direction the first impressions are wholly negative. West of the railway line two large featureless fields lie on either side of the Milton Farm Road. There are no distant views of any great merit although the Pentland Hills are visible to the south. To the north the Road Bridge can be seen from various points but it is seen end-on over the top of higher land and trees. It looks more like a railway gantry than the “iconic” image which is normally recognised as a visual attraction. The A8000 can be readily seen from all of the land lying west of the railway land and from the escarpment area. The traffic is a constant intrusive presence. Our observations supported the evidence of Mr Paterson that there was a large percentage of commercial vehicles on the road. These tend to be high and very visible. Depending on traffic volumes the road can be noisy. The road is above the site. It would be obvious to a developer that there would be a need to provide substantial sound barrier and artificial screening which would run across the view of the estate to the west. He would be struck by the problems of taking access to the site. We heard evidence that vehicles could have to wait for 20 minutes to get from the site onto the A8000. When the road is very busy traffic is slow moving and the problem on exiting would be one of irritation, waiting on some motorist prepared to allow movement. Attempting to reach the site at such times, a golfer might become anxious about delay and the problem of being in time for his booking. This could, of course, be overcome by giving ample warning of the problem though this could hardly be regarded as a positive marketing tool. Our visits, at quiet times, presented the different problem of a fairly constant flow of traffic at typical speeds in excess of fifty miles per hour and coming round a bend to the north. A potential purchaser could hardly avoid an impression of a potentially dangerous junction although this could no doubt be eased by improving sightlines at the junction itself.

[41] Coming to the site from the east a different impression is obtained. The first port of call is Craigbrae and the views from the escarpment are quite impressive. A wide sweep includes a reasonable view of the Road Bridge and of the top half of the Rail Bridge to the north, a view east across the city and the Pentland Hills visible to the south. The various views, partly over the city, convey a fine sense of an open outlook. However, we have some doubts as to whether these views can properly be described as special in the Scottish context. As Mr Woods put it, they are “no more than attractive”. The Royal Elizabeth Yard, which lies east of the railway line and south of Craigbrae cottage no longer operates as a naval stores but is in private ownership and let out as individual industrial buildings. These buildings can be seen from the escarpment area and from some parts of the land nearer the A8000. However, the setting of the buildings is low and they are not particularly obtrusive. They could be screened by trees in summer. The more significant impact from the escarpment is that of the airport visible in the mid foreground. It is not unduly intrusive but it gives the overall view an urban quality which can be contrasted with the images of Scotland commonly aimed at the tourist market.

[42] In short, it can be said that parts of the proposed course offer attractive views. None could be described as highly attractive or “stunning”. From much of the course the distant views would reasonably be characterised as mediocre or, at highest, “distinctly average” to use again the words of Mr Woods.

[43] Access from the east involves a system of minor roads. We would expect that many local visitors would choose these as their preferred route to avoid the dangers and frustrations of the A8000 but there was no suggestion that this could be regarded as the main avenue of approach. The examination of the problems of traffic bringing in-fill was entirely in respect of the restrictions of the A8000. The proposals for car parking were discussed by reference to that road.

Submissions of Counsel

[44] We heard full submissions on issues of fact and on the proper inferences to be taken from particular passages. We have taken these into account in our assessment and touch on aspects of such submissions in the Discussion below. There was little relevant dispute on issues of law and, where necessary, we set out the competing contentions as matters arise. As will be seen, the main points of difference arose in connection with the proper approach to the CAAD and these are not of critical significance to the merits on the view we take of the evidence as a whole. We look at this issue in more detail in relation to the question of recovery of the expense of the CAAD appeal.

[45] Miss Wilson helpfully provided full written submission. She set out an analysis of the legal framework and addressed the substantive claim under two broad heads. First, she dealt with evidence bearing on the potential of the land to be developed as a top class championship course. Her analysis involved detailed examination of evidence bearing, not only on the credibility of witnesses, but on the intention of the estate to develop the land as a 27 hole golf complex. We shall touch on aspects of that submission but in essence we can deal with this material by saying that we are entirely satisfied that a championship standard golf course could be built on the available land if this was done without regard to commercial constraints and by repeating that we do not think it relevant to consider the actual intention of the estate.

[46] The critical head of the submission was the second, dealing with demand. Miss Wilson based this on the proposition that there was at the valuation date “foreseeable demand” for the development opportunity but we did not understand her to mean anything other than “a probable demand”. As it was not disputed that development of a golf course for either the lifestyle business sector or the Scottish commercial market would not result in any significant enhanced land value over existing value, the market place of relevance for present purposes is the international market. It was submitted that the evidence of Mr King was to be preferred to that of Mr Smith. Counsel provided us with a full analysis of the evidence to support the broad contention that the former was better placed to comment on the international market in its relation to Scotland. Mr King knew who was active in the market and could provide analysis of purchases and awareness of trends. Mr Smith’s evidence was said to be based on assertion and generalisation with limited knowledge of the product.

[47] Prior to the second stage of the hearing we had invited clarification of the claim for injurious affection. It would have been easy to understand a claim based on the proposition that the whole reference subjects had an enhanced value as a golf facility and that had effectively been lost by the land take and intrusive effects of the new road. Accordingly, the injurious affection should be based on a figure of £10,000 per acre across the whole remaining site, less current use value. But the claim was not presented in that way. The claim presented differential values attributed to different parts of the remaining land. This was entirely understandable if applied to agricultural value because of restriction on size or access. We could not follow the reasoning for this based on loss of potential use as a golf course. Miss Wilson defended the claim on the basis that it was less than the full claim might have been. It was noted that the only direct evidence of these differential levels of injurious affection came from Mr Reid Thomas who spoke to post-scheme values of the residual land at levels in excess of the £10,000 claim for full loss. We assume that counsel’s submission proceeded on the basis that we were aware of the solicitors’ letter of 13 December 2006 which also attempted to explain the claim. It concluded by inviting us to adopt a two stage approach.

For the respondents

[48] Mr Smith did not respond to the invitation by the Tribunal to provide written heads of submission but we were able to follow most of his oral submission without difficulty. No significant issues of law were raised. He contended that the case for the applicants had not been proved. He invited us to prefer the evidence of Mr Smith supported by Mr Gaunt and the respondents’ valuers that the golfing potential did not add value. He dealt in some detail with the evidence of the Estate’s intentions. He suggested that this evidence pointed to the whole talk of golf as just a tactical move to build up the claim. In relation to the international market he pointed out that it was the evidence adduced by Mr Reid Thomas which had driven the negotiations. That was not based on international prospects. Although that evidence had apparently been superseded by evidence of Mr King, it should, in any event, get no weight. It had been given in camera. He made some well founded comment on the problems attaching to reliance on it. However, for the reasons given above we think it unnecessary to deal in any detail with this material.

[49] Counsel dealt with the absence of any positive economic case for the applicant. Mr Mark Smith’s evidence was that the international market does obey the rules of economics. This might turn on hope value but his evidence was that economics were always important. Counsel went on to examine the detail of such figures as were available as to costs. All pointed to the probability of loss with no identified potential for profit. He stressed that the proposal to build 27 holes simply added to the problem and that there was no evidence of this proving a special attraction on the international market.

[50] Mr Smith invited the Tribunal to take a strict approach to the CAAD. He submitted that it applied to “acquired lands”. The only land being acquired was on the line of the road. Further, even if we were entitled to assume that there was planning permission for the whole 400 acre site, the developer in the real world would have regard to the risk of conditions being attached to the permission. As we understood it, Mr Smith did not challenge the proposition that there was unconditional consent. His submissions were prefaced by the words “I put it no higher”. It is convenient at this point to say that we consider it appropriate in the circumstances of this case to deal with matters on the basis that there are no relevant planning restrictions. We accept that there would be restrictions attached to road use. We also accept that the existing certificate does not provide carte blanche for building. We think it can be assumed that a clubhouse of a scale shown in the drawings was part of the CAAD. We accept that a developer would have to face up to the risk of refusal of planning permission for any significant additional buildings or any attempt to locate new buildings away from the footprint of the existing structures at the A8000.

[51] In relation to injurious affection, Mr Smith submitted that the claim supposedly based on Mr Reid Thomas’ evidence was impossible to understand or justify. He described it as “impenetrable” but, he submitted that the Tribunal was entitled to accept Mr Reid Thomas’ figures. They were higher than the agreed £10,000 per acre for land taken. There was, accordingly, no possible basis for a claim for injurious affection.

[52] Counsel were both agreed that the question of expenses of procedure in the Tribunal be deferred but were at odds in relation to the claim for expenses of the CAAD process. Mr Smith submitted that if it was accepted that there was no enhanced value in the permission for 27 holes, it followed that it was not reasonable to incur the expense of obtaining such permission. Reference was made to section 25(9A) of the 1963 Act. He stressed that the appeal had related only to the difference between 18 and 27 holes. He pointed out that there was no suggestion in the evidence that the distinction was significant in international marketing terms.

[53] Miss Wilson contended that the reasonableness of the appeal was not to be judged by its ultimate success. It was a perfectly proper course for an applicant to take to establish the basis of claim. It was the natural course for such claims to proceed in two stages. Mr Lowry accepted that the first stage was to establish the nature of the potential development. The CAAD procedure was the obvious way to do this.

Discussion

[54] There was no dispute about the main basis of approach to assessment of compensation. We require to determine the open market value of the land taken on the valuation date. We must have regard to the deemed planning permission arising from the CAAD but this does not, itself, enhance the value. We need not repeat the discussion in Young v Lothian Regional Council. The critical question is that of demand. It was agreed at the commencement of submissions that the question we require to answer is:- Would the site have attracted, at the valuation date, a buyer intending to establish an international golf course on it? If the answer to that question is in the affirmative then we would determine the value of the land being acquired at a rate of £10,000 per acre. We would also then require to consider the question of injurious affection.

[55] Although the applicants presented a careful submission on what was described as the first question, namely, the prospect of developing a golf course on the subject land to the standard of design excellence associated with a top quality golf course, we are satisfied that there was no real dispute about this. Mr Jones and Mr Gaunt were agreed that such a course could be built. There was an ample area and if there was no restriction on earth importation and land moulding and no restriction on expenditure, there was an adequate blank canvas to allow a competent architect to design a course of championship standard. Even with 27 holes the available land provided a very spacious environment. Certain physical features of the site would have had to be catered for but these were not an impediment to the creation of a golf course of high standard. We are entirely satisfied that a golf course of an international standard could have been physically built on the estate land. It was clear from the evidence, and indeed from our examination of the history of developments at Dundonald, Archerfield and St. Andrews, including Kingsbarns that, within reason and if money was not a constraint, a championship standard golf course could be built on any undeveloped site of sufficient size. It might be added for completeness that although a course of championship standard might still be capable of being built to the west of the new road there was no serious suggestion that such a possibility would enhance values in any way. The restricted location would provide no real attraction.

[56] Although some attempt was made to found on planning difficulties that might arise in relation to the need for substantial earth movement within the site we are entirely satisfied that such difficulties were not of a nature which would prevent construction of a high quality course. We are also satisfied that there was no reason based on road restrictions which would have prevented sufficient in-fill material being able to be brought to the site. The problems would be those of time and money.

[57] It seems to us that the details of each party’s particular design are irrelevant. Although certain bases of challenge might have cast doubt on the general reliability of the witnesses responsible for them, it did not appear to us that these witnesses gave evidence of critical importance in relation to the main issue. It was made clear that in both cases the designs were preliminary ones. Little time had been spent on them and they had not been prepared with the benefit of any topographical survey, site investigation or measurement of the quantity of landfill that each scheme might have required. The existence of a tolerable preliminary design might help attract a potential customer but we are satisfied that any actual purchaser would take his own steps to determine whether an attractive course could be built. He would wish to use his own architect. Accordingly we consider that the dispute between Mr Jones and Mr Gaunt as to the detail of their respective designs had little, if any, bearing on the issue before us.

[58] We do not consider the evidence of the Estate’s intentions to be of any direct relevance. However, we heard a good deal of evidence of the intention to develop the land as a 27 hole course and there was some attempt to justify this as having a bearing on the credibility of witnesses. It was difficult to avoid the impression that the parties and their advisers had initially viewed the claim as turning on the validity of Sir Jack’s professed intentions for the land. The dispute on that issue occupied not only a great deal of time at the hearing but a great deal of time in preparation. The evidence of Mr Seed and Mr Jones was directed in the main to the plans which the estate had for the land. Mr Seed made much of Sir Jack’s particular entrepreneurial style. Mr Jones made repeated reference to Sir Jack’s intentions. He said the intention was to create a championship standard course for good amateurs. It was not aimed at attracting top professionals. Sir Jack’s attitude was that if they came that would be a bonus. It was not to be a course for holding championships but top golfers might be attracted by the practice facilities. The only relevance of this is that it provides direct evidence of the thinking of the one developer who had positively assessed the site. Others might take a different view but we need not disregard his views. In any event, we are satisfied that the emphasis on the actual plans, real or otherwise, was a distraction of marginal relevance to the issues now before us.

[59] We accept the submission that the applicants had consistently argued that the intention was to develop a “world class course” or a “championship standard course” and we have accepted the latter term for convenience as referring to a course of top quality presenting a challenge to a serious player. There was no attempt to assert that Sir Jack’s aim was to hold championships or that the site would be suitable for such use. The traffic problems in the no-scheme world might have been thought to preclude it. However, the very specific intention of Sir Jack may be contrasted with the expectations of the market. There is a recognised market for “trophy courses” in the sense of courses which have an established reputation. Golfers attach a value to the history of a course. That tends in the main to be based on achievements of the professionals. A purchaser would have to consider the special difficulties of building a reputation without actual championship golf.

[60] We do not accept Miss Wilson’s submission that the applicants had established, on the evidence, that the intention was to develop a course to appeal to “the investor in the international golfing destination”. Even if the fully developed course was intended to prove attractive to the international golfer this would have no necessary bearing on the question of whether the course itself would be attractive to an investor. That would depend on economic return or on some special feature. In any event, we are not satisfied that they had consistently argued that this was their intention. There was little of this in the evidence of Mr Seed or Mr Jones. Indeed, the former emphasised Sir Jack’s ability to make a success of developments without recourse to the conventional approach of preparation of budgets, cash flow predictions, and the like. Sir Jack was to have control. There was no reference to attracting other investors. Mr Jones constantly emphasised Sir Jack’s insistence on developing a course to the highest standards. He did say that a course developed to top standards with top quality maintenance would be an attraction on the international market as well as the home market. His view was that if they developed such a course, it would be marketable.

[61] In any event, the emphasis on the intention to develop a course which would appeal to an international investor, even if proved, may be contrasted with the essential question of whether there would be a demand in the international market for the undeveloped site. There was no dispute between the witnesses that there would be a demand for a developed course with an established track record of holding successful championships of appropriate standard, even if the course was not situated in an attractive location. If Sir Jack had been able to commit time and money to develop a high standard of golf course and had been able to hold championships, there would have been a market for it. But this would not necessarily be indicative of demand for the bare land site.

[62] Had the applicants identified from the outset that their claim was based on demonstrating that the undeveloped site would be attractive to the international investor, their criticism of the approach taken by the Council in this case might have had some justification. There is no doubt that the Council had doubts as to the genuineness of Sir Jack’s professed intention to develop all the available land as a golf course. Indeed, it may be said that in evidence Mr Jones was a little vague as to his remit. In cross-examination he answered a question on the parameters of his remit by saying that Sir Jack told him he wanted a champion standard golf course and left it to him. But he made clear that his first steps were to see if he could build two 18-hole courses. It is clear that Mr Jones thought his remit was to build the best golfing facility he could using the space available. It seems plain that the emphasis of the applicants throughout negotiation was on the intention to develop the land and, indeed, to develop it in accordance with Mr Jones’s plan. They did not attempt to resist requests for information by explaining that the Council had wholly missed the point. They persisted in trying to persuade them to accept Mr Reid Thomas’ valuation based, on the face of it, on a local market for golf course sites. There was no explicit reference to the issue as turning on international demand for this site as one with special international appeal until after Mr King had accepted the Council’s expert valuer as having persuasively shown that the subjects had no enhanced value on the local or national market. Mr Reid Thomas did not purport to have knowledge of the international market. He certainly did not attempt to rely on it in his negotiation. The first explicit reference to the land as having special characteristics which would attract international investors came in Mr King’s report. The context was that he broadly agreed with Mr Smith’s view that the land had no enhanced value in domestic terms. He suggested that the international market had been overlooked.

[63] Up to the date of Mr King’s report there is no evidence to suggest that it had occurred to anyone that the real value lay in some special attraction the site might have relative to the international market and divorced from the commercial realities of the domestic market. This, of course, is not, in itself, fatal to the claim. Those involved might not have recognised that the interests of the international market were different from those of commercial developers constrained by questions of financial return. That essentially was Mr King’s position. But, we recognise the force of Mr Smith’s position that the reason he did not deal with the question of the special attraction on the overseas market was that he did not think it had any relevant attraction.

[64] It was not disputed that the onus was on the applicants to demonstrate an enhanced value and a general comment may be made that we understand the difficulties faced in obtaining sufficient evidence. It became clear from the evidence that the market for sites for development for international golf courses is one populated by a relatively small number of participants whose rationale and influences may be governed by factors personal to them or by events or circumstances which may not easily be decerned by outsiders. In consequence it is a market which is difficult to analyse or establish. Relevant evidence is inevitably limited to a very few examples and it would be wrong to treat the absence of clear examples as demonstrating no demand. However, we must proceed on the evidence and cannot counter the difficulty by proceeding on the basis of any unsupported assumptions.

[65] A particular difficulty in the circumstances is that the Tribunal members have some experience of golf and some awareness of “attractive courses”. Mr King was led to accept that an informed person without specialist expertise could make an assessment of attractiveness. But we have reservations as to how we could properly use that to determine how an international golf course developer would assess matters. We recognise that such a developer would have to have regard to the perspective of the player at least as part of his assessment. We have concluded that it would be wrong to attempt wholly to exclude our own views as to the significance or otherwise of features. We have attempted, however, to limit that to assessment of available evidence and have not relied on any matter deriving solely from our own impressions.

Credibility of witnesses

[66] Miss Wilson provided a careful comment on the reliability and credibility of the various witnesses and we shall look at each in turn. The broad comment can be made that we do not accept that evidence indicative of doubt or suspicion on the part of any witness as to Sir Jack’s development intentions, vitiates the evidence of such witness on other matters. We are satisfied that there was at least a basis for doubt and in general terms we do not think witnesses can be criticised for taking an approach based on suspicion. Fortunately, on the view we take as to the proper approach to this case, it is unnecessary for us to express any view as to Sir Jack’s plans.

[67] As we have concluded that the dispute over the “illustrative plans” is irrelevant to the present issue, it is unnecessary to say much about our views of the relative credibility of Mr Jones and Mr Gaunt. The credibility of the evidence already led seems unlikely to have much bearing on the issues to be dealt with at the next stage. However, we think it appropriate, in light of the full submissions made, to set out briefly our views of the witnesses.

Mr Seed

[68] We accept Mr Seed as a wholly credible witness and have no reason to doubt his reliability on matters within his own range of expertise. It may be said that we were somewhat surprised on site inspection to find the bulk of the land currently lying as featureless fields when he had given evidence, in answer to the Tribunal, to the effect that it would be possible to see by the nature and shape of the ground the reasons for the layout of all the holes as shown on Mr Jones’s plan. He said that the holes followed the natural shapes of the land. This evidence was, in itself, hardly consistent with the evidence of Mr Jones to the effect that he intended to create an artificial links course by importing large volumes of material and wholly re-shaping the land to the north west of Milton Road and the railway. However, there may have been some misunderstanding and we take no more from this than that Mr Seed had no relevant expertise in relation to design or development of a golf course.

Mr Jones

[69] Mr Jones was plainly a man of very wide experience as a golfer on courses all over the world. We have no reason to doubt that he is an able organiser and administrator with experience in many aspects of detailed golf course construction. The respondents expressly accepted that no doubt was cast on his ability to make a good job of building a course. We found him to have a confident manner and an ability to put his material in a forceful and attractive way, illustrated by anecdotal evidence on a wide range of issues. We have no difficulty in accepting the main thrust of his evidence that a championship standard course could be built on the site. However, we found that he had a tendency to casual exaggeration or aggrandisement which made it difficult wholly to rely on what he was saying.

[70] The most striking example of this was the impression he initially gave of the work carried out to produce his proposed 27- hole layout. In his report and his evidence he conveyed an impression of careful study and assessment over a full week in course of which he had, for example, crossed Milton Road “hundreds of times”. However, in answer to questions by the Tribunal, near the end of his evidence, he accepted that the inference from a letter from Sir Jack, nominally dated 11 April 1998 (but really 1999), was that he only been on site in course of two days. He said he could not really remember. He accepted that it was quite possible that he had only been there for two days. Another example was the contrast between his written report of his experience in PAR 72 listing nine courses he had built or designed. This material was calculated to give the impression of a man with a track record of commercial success in the design and construction of golf courses after his success at Hever. But after Mr Gaunt’s report questioned this, Mr Jones was able to explain that after Hever he had not built any course although he had been involved in building five holes attached to a polo facility in 1993. When talking about building courses, Mr Jones repeatedly resorted to detailed explanation in the present tense and in a way which strongly conveyed the impression of a substantial continuing workload. After we explained our difficulty to him, he appeared to confirm that he had not been involved in building courses since that time, but soon returned to confident descriptions of his construction practices in language suggestive of constant involvement. Although we were eventually invited to accept that the plan prepared by Mr Jones was intended to do no more than establish the nature of the golf course that could be developed, his report was couched in terms indicative of a more advanced piece of work; it was said to have been prepared “after many modifications”.

[71] It is fair to say that despite various similar examples we did not have an impression of deliberate deceit. It may reasonably be thought that his enthusiasm tended to get the better of him but, in any event, we would have found difficulty in giving weight to his evidence on any critical matters.

The applicants’ other witnesses

[72] We accept Mr Reid Thomas, Mr King, Mr Fraser and Mr Wood as careful straightforward witnesses. We are satisfied that they were doing their best to give accurate evidence within the scope of their own areas of expertise. They were careful to limit themselves to that expertise. We accept them all as credible and as reliable subject to the comments on specific issues below.

Respondent’s witnesses

Mr Gaunt

[73] Miss Wilson’s criticism of Mr Gaunt’s reliability as a witness was based on his misunderstanding of a layout plan prepared by Mr Jones which, on the face of it, gave the impression that Mr Jones had prepared his layout in knowledge of the intended land take. He naturally assumed that Mr Jones had deliberately set out to show a course which would be significantly affected by the compulsory acquisition. In fact this plan was a much later revision prepared in 2002 to show the effect of the new road on his original lay-out. This would have been revealed by a careful study of the chronology of events as disclosed in the bundle of documentary material available to Mr Gaunt.

[74] The respondents rightly apologised to Mr Jones for the criticism based on that plan. Miss Wilson made the point that it was not sufficient to apologise. She suggested that the whole evidence of Mr Gaunt was vitiated by the attitude he had taken based on his misunderstanding. It was submitted that this chapter of evidence showed at best a “cavalier attitude” on the part of Mr Gaunt to ascertaining the facts and, at worst, a failure in objectivity. We do not accept either alternative. We agree that Mr Gaunt’s confusion on this matter should have been picked up earlier by those instructing him. We understood the apology to represent an acknowledgement of failure in that respect. However, Mr Gaunt’s expertise lies in the design of golf courses, not in the close examination of documentary productions. We do not regard his confusion as displaying a cavalier attitude to the facts. We think that it was a mistake which might easily be made by a witness coming to the case as he did. Had a copy of the original drawing been made available to Mr Gaunt, the confusion would have been clear. The bundle of papers provided for background had no obvious bearing on his area of expertise and it is not surprising that he did not take time to analyse it exhaustively. We see no reason to doubt the reliability of his evidence on matters falling properly within his area of expertise.

[75] There can, of course, be no doubt about the importance of the mistake. It went beyond suspicion. If Mr Jones had deliberately designed a course on land which he knew was to be taken, this meant that the whole scheme was artificial. Mr Gaunt must have had that in mind when writing his report. Apology was entirely appropriate. But, Mr Gaunt did not make this error the basis of his report. On the contrary, he set out full detailed reasons for doubting the reliability and expertise of Mr Jones. His evidence was tested in cross-examination. We were not persuaded that there was good reason to doubt his credibility and found no reason to doubt the reliability of the factual evidence he gave.

[76] Mr Gaunt was asked to comment on the report by Mr Jones. To provide material for his comment he had a meeting at the site and supplemented it with a lengthy series of questions, many of which related to the specific plans of the estate and the opportunities available on other parts of the estate. The reply dealt with each of the questions. It concluded by saying that a particular letter - setting out potential costing - bore “no relationship to the valuation exercise being undertaken before the Lands Tribunal in accordance with the Land Compensation (Scotland) Act 1963”. With the benefit of hindsight it can be seen to have been unfortunate that the reply did not make clear that this comment could have covered most of the issues raised. In the event, Mr Gaunt set out a detailed critique of the plans. At the hearing, the applicants attempted to meet the criticism by persuading him that this was just an indicative or conceptual lay-out. It was contended that this should have been obvious and he was criticised for failing to make the distinction. We have already noted that nothing in Mr Jones’s report attempted to make the point that the work was at a rudimentary stage.

Other witnesses

[77] We accept all the other witnesses as credible and reliable, subject to the matters discussed explicitly below. Particular mention should be made of the criticism of Mr Smith and the suggestion that he displayed a lack of objectivity. We do not accept this. We are satisfied that there was initially nothing to suggest to him that the site was being said to have an international appeal. When he looked at it and saw nothing to suggest such appeal, there was little more to be said. In cross-examination he accepted that certain attributes might be regarded as attractions but he made fairly plain his view that they were not likely to be relevant. He thought the essential attraction of Scotland in the international market was based on the fame of its links courses. We did not regard his repeated emphasis on this as being an excuse for any inadequacy in his prepared evidence or as being an attempt to bend his evidence to support the respondents. On the contrary, we were in no doubt this was his genuine opinion. It was not seriously disputed that the existing reputation of Scotland was, indeed, based on its links courses. A telling response by Mr Jones when questioned about preferred locations was to the effect that the Dundas proposal would “break the mould”.

The question of demand

[78] Although presented in terms of a conflict between Mr King and Mr Smith, we do not think this turns on issues of the credibility or reliability of these witnesses as such. Ultimately, we have to consider the factual basis relied on and to determine whether there is persuasive evidence that this site has characteristics which would lead to demand from international golf course developers. The main body of evidence was to the effect that Scottish links courses had a special reputation and it was not disputed that an attractive links setting would be likely to secure that demand. Essentially Mr King’s proposition was that demand was not limited to links courses and that the site had other attractive characteristics which would be likely to create a demand when viewed in the context of the underlying attraction of Scotland as the “home of golf”.

[79] The applicants did not attempt to establish that a developer would be attracted by the prospect of making an acceptable return on a commercial basis. It turns, essentially, on the proposition that a developer would see this as a site for a “trophy course”. We accept that there is evidence of an international market for a “trophy purchase”. That expression was, however, used in a variety of ways. Mr Smith confined its use to an established course with a track record. Golfers had a sense of history. They had an awareness of champions and championships. A course with a record of championship success would be regarded as a trophy course. Mr King used it in a different way. After various attempts to define his sense of the term, we were left with the understanding that he tended to use it as a justification for his approach to valuation rather than a start point. It was used to get over the particular difficulty of establishing the existence of a market which did not depend on demonstrating any potential financial gain.

[80] In her submissions Miss Wilson invited us to accept the description of the “trophy purchaser” in an article by a Mr Hillier provided by Mr Smith and headed: “Trophy and Lifestyle” properties. In dealing with methods of valuation the author made the point that the market could be distorted by such purchases. He said of trophy purchases: “The former tend to be well located facilities in areas of high population which have a name or branding in the golf market. This is likely in most cases to have been built up over a number of years most likely through the hosting of regional or national tournament.” He went on to say that it was because of these potential distortions that “Consideration must be given to direct comparable transactions in the market place alongside the conclusions to be drawn from the profits method”. In a further passage he said: “The final situation that valuers may find themselves relying on direct market evidence could be in the event of a course they feel suitable for purchase by the international market. This type of course described earlier as a possible “trophy” course is likely to change hands with much less emphasis on its trading than a lesser known competitor”. Later he said: “One of the fundamental difficulties for the valuer in using direct comparison of market transactions is the general complexity which always seems to surround the sale of the golf course”

[81] We heard no detail of Mr Hillier but it may be assumed that he was an experienced surveyor and valuer. His observations were in substance adopted by Mr King and Mr Smith. We need not examine the detail of his text as if it had some special weight but, observe that it is quite clear that Mr Hillier was talking about established golf courses. We have not been persuaded that his references to “trophy courses” provide a sound basis for valuation of undeveloped fields. We consider the attempt to invoke this material as support for the applicant’s case to be distracting. The concept of a development opportunity to build a special course does not depend upon comparison with valuation techniques for courses with an established track record and reputation. Comments about the latter must be read in the context of the normal method of valuation of such golf courses being by reference to profits. Mr Hillier says that, where courses have a special reputation, there will be “much less emphasis” on profits. We do not think he can be taken to say much more than that. We think it clear that this material does not justify a conclusion that, where there is no special reputation, there need be no reference to potential profits.

[82] It must be borne in mind that Mr Seed and Mr Jones were saying that Sir Jack had made his own assessment. He thought he could provide a course of high standard which would be a commercial success. That was said to be his own particular entrepreneurial skill. He did not require to have regard to any positive financial predictions. Mr Reid Thomas’ evidence was apparently intended to give support to this by establishing national values for golf courses. But it is now agreed that there is no commercial case being made to justify the development. The applicant’s case turns on the proposition that the land has special features which would make it attractive to international investors without direct regard to whether they would be able to make a profit from it. We accept that the site has advantages which might attract an international golfing tourist. They would be features a developer would have in mind when assessing the commercial viability of the product but we are not persuaded that such advantages are of a nature which would give the course the status of a “trophy course”, still less that a developer would buy the bare site in confident expectation of being able to create such a status. It is that expectation, providing the motive for the purchase, which is at the heart of the applicants’ case. Without it we cannot be satisfied, on balance of probabilities, that there would have been a market for the land at the enhanced figure agreed between parties.

[83] In short, while evidence that the site could be developed so as to provide a course which would be attractive to overseas golfers would be an important factor in establishing the commercial viability of a course, it seems to us that something more is required to demonstrate that such a course would be regarded by an acquirer as a trophy course.

[84] There was no direct evidence of inland sites in Scotland attracting demand due to attractions unrelated to coastal location except the evidence of the Luss course at Loch Lomond. However, that location has very special features and the evidence of that one development is insufficient to establish a general demand for inland Scottish locations. We, of course, heard a good deal about the Archerfield Renaissance development and the Dundonald development because they had attracted international developers. Reference was made to adverse features of these courses and an attempt was made to set up the supposed advantages of the subject land. But it can be said at the outset that the disadvantages of these courses must be set in their context. They are links developments located by the sea in well established “golf course country”.

[85] We consider that analysis of the evidence of the courses recently developed in Scotland by foreign developers does not, of itself, justify an inference of a international demand for a new Scottish course. It supports the view that the important elements are the coastal location and an established local golfing reputation. Kingsbarns is a short distance from St. Andrews on a stretch of coastline, which has been the focus of much new golf development. St. Andrews is, of course, world famous as the pre-eminent golfing resort but the East Lothian location of Archerfield is also well known for links golf. The new course is adjacent to the internationally reputed course at Muirfield as well as the recently completed courses on the Archerfield Estate. Adjacent courses at Gullane and North Berwick are links courses of high standard attracting tourists on golfing holidays. Dundonald has been created on links land on the Ayrshire coast and although the sea views from the course are limited there is no doubt that it is a seaside course with renowned neighbours. Although Mr King was no doubt correct to say that Dundonald, Irvine had no name recognition overseas, it could readily be marketed by reference to the adjacent Gailes courses and to Troon, Preswick and Turnberry which lie on the same stretch of coast. We have already explained that we consider that there are readily understood special features at Loch Lomond or Balmeddie which mean that they do not provide a sound basis for inferences at other sites, such as the reference subjects. In any event, it must not be forgotten that Balmeddie lies on the same coast as well regarded Scottish links courses such as Royal Aberdeen and Cruden Bay.

[86] By contrast with links, there is no established international golfing connection with Edinburgh although the city itself contains several good quality courses. A developer might be prepared to take a risk of creating a new market selling a golf course on the basis of proximity to the city’s facilities and attractions such as proximity to an iconic set of bridges. He might create a particular type of golf tourist but it is not clear to us that these factors would add to the status of the course itself so as to allow it properly to be perceived as a “trophy course”.

[87] In relation to the supposed attractions of the site, there was no direct evidence that proximity to a city centre had ever been seen by a developer to be a significant attraction in Scotland. Travelling times in Scotland are comparatively short. We see no reason why a golfer, prepared to cross the world to play golf, would be concerned to limit his travel to half an hour, particularly if that drive was largely to be through a built up area. It is plain that the top quality Scottish courses have not relied on proximity to town centres for their attraction. There can be little doubt that many golfers value their hotel stay as part of the golfing holiday and would not see a city based hotel as an attraction. However, we have no difficult in accepting that there would be golfing tourists, perhaps with families, who would find an attraction in a city stay and we accept the evidence that “Edinburgh” was an “iconic” venue with an international reputation.

[88] The applicants made much of the adjacent conurbation and the facilities available there. There was reference to the ease by which the course could be made part of a tour. These were all accepted by the respondents as potential attractions but we had no reliable evidence of the bearing they would have on the status of the course. The emphasis on these potential attractions seems implicitly directed to commercial viability rather than to the site itself as the potential location for a “trophy golf course”. In any event these various propositions appear to us to ignore the reality that the golf takes very much more time than the travel. A visitor staying in Edinburgh could easily go to St Andrews to play golf. He would expect to spend five to six hours at the course, including time for refreshment of some sort. If he wished, he could make perfectly reasonable arrangements, either direct or after returning to Edinburgh, to play at Dundonald, on the other side of Scotland, the following day. If he was to play at the Dundas site, he would, in effect, have to choose that course over the course he would otherwise play that day. In other words, while the concept of a driving range and golf academy as the start point for a touring golfing holiday might have made some sense, we are not satisfied that the same thinking applies to a full course.

[89] We heard much of local features including the attraction of association with the castle at Dundas. But, there was no suggestion that the prospective purchaser would acquire any right to use the castle. He would not be able to market a functional connection. The visual connection is minimal. Any reference to the castle as part of the ambience of the site would be likely to lead to feelings of disappointment when players learned that the castle was not visible from the course except perhaps in a very restricted way through the leafless trees in winter. To an extent the same might be said of the suggestion of proximity to the Bridges. Both are visible from the Craigbrae escarpment but the view is not the classic one familiar from traditional tourist material and even this view would only be available for a very short part of the round.

[90] There is no doubt that the site suffers from a range of positive disadvantages which would strike a potential purchaser. Perhaps the most obvious is the A8000. It creates what might best be described as an extremely irritating obstacle to access to the course. It would limit if not preclude use of the course for the holding of any significant championships. The developer would have to contemplate building or maintaining the course to championship standard without confident expectation of being able to attract champions to play. The road is visually obtrusive and a developer would realise that extensive screening provision by trees or mounds would be required. The experts were agreed that it was a source of significant intrusive noise although there were some differences as to the impact of noise generally. We have not found it necessary to base any conclusions on the disputed material. Plainly the road can be very noisy at times and the developer would face the costs and uncertainties of creating sound insulation. Milton Farm Road creates a crossing problem. This could be resolved by an underpass at some point but the problem of the road where it crosses the railway would remain. This could be a hazard for players and would be a constraint on movement of greenkeepers and their equipment. Traffic on this road might be expected to be visually intrusive and likely to create intermittent intrusive noise although this might be of little significance except in the context of a high quality facility. We accept that the mere presence of an adjacent railway has not been a bar to establishment of great British golf courses but we do not accept Mr Jones’s view that a railway running through a course is the same. It creates a division and a problem of course management. A developer would recognise that the airport would not easily be screened. He or she would have to take a chance on the question of whether planes would prove intrusive.

[91] It was stressed that the layout provided by Mr Jones was illustrative only. However, it shows the escarpment holes as all part of one 9-hole course or loop. The escarpment area is not large. Mr Jones proposed to use it for one hole with a green at the top. The next hole was to start with a tee on the side of the hill. It is not easy to see how a layout would be devised which would incorporate the escarpment into more than one loop. Accordingly, a developer contemplating a 27-hole system as described by Mr Jones, would recognise that players on any particular day could not be guaranteed the benefit of the “signature hole” and the various important views from the escarpment.

[92] We accept the evidence of Mr Wood that most of the individual disadvantages could be overcome and that the site has attractions which could be utilised to create a golf course of a standard associated with international golfing destinations. However, he was plainly unhappy about the idea of siting the clubhouse close to the A8000. He stressed that the design was conceptual only and that there might be other options for the clubhouse. We heard no evidence to support this and it may be contrasted with the submission that a suitable size of clubhouse could be built because it would occupy the site of the existing dilapidated buildings at the Milton Farm Road junction. A potential developer would have to face a very real risk that he would not be able to obtain planning permission for another location … We have no doubt that a potential purchaser would be influenced by the cumulative effect of the adverse factors and the possibility that they might not all be effectively resolved. But, in any event, we are satisfied that on any view of the concept of “trophy course” as discussed in this case, it requires more than that it is a standard fit to be an international destination. Mr Wood stressed that the costs he contemplated for construction including landscaping were not out of the ordinary. But, he was careful to avoid being drawn into discussion of business factors.

[93] Miss Wilson invoked the concept of a big fish in a small pond to describe Mr King’s superior qualification. One cannot push the analogy too far but, when it is in a sense the value of the pond in the big wide world which is in issue, it is far from obvious that the local expert is best placed to assess it. He has dealt with a very small number of developers who have in fact come to Scotland to deal with specific sites. From that experience, he requires to draw the inference, not only that there are other people who would also have been attracted by such sites, but that such people would have been attracted by the quite different type of site at Dundas. He attempts to do so on the basis of what are essentially tourist attractions. No doubt the people he dealt with gave him some reasons for their interest in the available sites and it is not surprising that they indicated that they were attracted to Scotland as the home of golf. There was no suggestion that they had instructed or encouraged him to look out for other sites in Scotland nor that they had suggested to him that proximity to Edinburgh or the Bridges would justify a non commercial approach to development. Miss Wilson criticised Mr Smith for failing to consider the basic advantage of a quality site located in Scotland as the home of golf. But, if location in Scotland was itself a feature of real significance to the international market, we think buyers would have made their active presence felt in some more positive way. Apart from Mr Trump, the evidence was of international buyers coming in to developments rather than actively seeking sites in Scotland. Apart from Loch Lomond the sites were links.

[94] Mark Smith was able to consider the attractions of the small pond from the outside. He was active in dealing with developers all over Europe. His views of the relative attraction of Scotland cannot be disregarded simply on the basis of his lack of dealings in Scotland. All else being equal we would have tended to attach more weight to assessment from the perspective of the international market looking at Scotland, rather than that of the Scottish expert looking out.

[95] The applicants’ submissions were based on reference to a “trophy site” or a “quality site”. The latter may be seen as a attempt to rely on something less than the former but on any view it implies more than a site of average quality as a course. There was no evidence, apart from that about Mr Trump, of a search for sites in Scotland, so mere location in Scotland cannot be regarded as indicative of a “quality site”. Indeed, although much was made of the site he had found, it appeared that his search had been for a links course. He had in mind an alternative in Ireland. The fact that the international market had been satisfied that the other sites discussed in evidence were suitable for their purposes does not, of itself, justify an inference that sites would have special quality merely from their location in Scotland. Although we were urged to approach the matter by consideration of the comparative factors and to take the view that the advantages of the subject site made it at least as attractive as sites such as Archerfield and Dundonald, we were not persuaded of the validity of this approach when regard is had to the fundamental significance so clearly attached to links golf. In any event, viewed as a location for playing golf we do not believe that the comparisons do favour the reference site.

[96] We have explained that the evidence of Mr Jones does not appear to have any real bearing on the issue before us. Such relevance as it has does not appear to support the applicants on the question of demand. His proposal was for a set of three 9-hole courses. We can accept that this might be consistent with Sir Jack’s stated intention of utilising all the available land to build the best possible golfing facility. However, we heard nothing to suggest that such an approach would add to the attractiveness of the site to a developer. Mr Jones’s idea for maximising the attractiveness of the course was an emphasis on variety. His original idea was to have three different types of golf within the one course. His initial drawing referred to this as “loch” “gorse” and “woodland”. His report explained the attraction of these three different types of course. He told us he used “gorse” to describe the “Highland” type of course. However, it appeared from his evidence that his preferred option was to change the character of the bulk of the land on the west of the railway by importing large volumes of spoil and creating a links effect. In short, his view seemed to be that to make the best of the available land in golfing terms he would create a composite course, combining the characteristics of quite different types of golf in one course. There was nothing in the evidence of other witnesses to support that as a concept attractive to the international market. It may be said that the acceptance by Mr Jones of the importance of a “links effect” simply adds weight to the evidence of Mr Smith that links characteristics are the key element in the international reputation of Scottish golf.

[97] Mr Wood’s view was that the course ought to be considered as a parkland course. He would want it to be developed using a unified approach aiming to extend the “designed landscape” effect of the subjects on the west of the main road. We have no doubt, in assessing the attractiveness of the site to the market, that such an approach would play to its strengths. It would allow the course to borrow from the ambiance of the castle grounds. It would allow any requisite tree screening to take place in a natural way. It would be consistent with the development of artificial water features. It is our view, based on the evidence of Mr Wood, Mr Gaunt and Mr Smith and supported by our subjective understanding of golfing matters that, at the highest levels, memorable character comes from consistency of characteristics. A developer assessing this course would have to consider whether he could create a “trophy course”. This would be based on making the best of what was available. We have little doubt that he would see it as a parkland course. We are satisfied that the composite type of course described by Mr Jones as being the intention of the Estate would not be expected to lead to “trophy” status in any sense of that term. That as we have seen, is not of direct relevance but is simply another indication of the inherent problem. We are not persuaded that a parkland course at this location would be seen as a potential trophy course.

[98] Mr King’s evidence was that “the driver in this market is the opportunity to play golf in Scotland yet with access to good quality hotel accommodation, restaurants and other activities for non-golfers.” There was no evidence of an existing market driven by these features and we think it fair to say that it would be a market for a new product. The built course might be marketed, not on the traditional Scottish reputation as a provider of first class links in peaceful and attractive seaside locations, but by reference to Scotland as the home of golf and other features such as proximity to Edinburgh and its hotels and other facilities, and to views of the Bridges. In golfing terms it would have to be marketed by reference to its parkland setting and, perhaps views of castle, Pentlands, Edinburgh and the Bridges. It would be novel in Scottish terms in being marketed abroad as a 27-hole unit. As we have indicated, such features might all be relied on as having potential for commercial returns but seem to us to be of doubtful relevance as a basis for “trophy” status.

[99] We are able to answer the substantive question posed in the submissions. We are not satisfied on balance of probabilities that, at the valuation date, the site would have attracted a buyer intending to establish an international golf course on it. For the purposes of this application we must take it that it would not have attracted any buyer intent on building a golf course. However, as we indicated, at the start of the second hearing, might be the case, we have difficulty in answering the question put in the joint minute. We are not, on the limited evidence led to date, prepared to make a positive finding that the land has no enhanced value with the benefit of permission for a golf course development. Although we would not expect much to turn on this, such a finding might unduly restrict the scope of matters to be dealt with at the second stage of this case.

[100] It should be added for completeness that we do not consider the dispute in relation to the precise implications of the CAAD to have a real bearing on the issue of demand. We accept that the permission was for three 9-hole courses without constraint as to extent of use. We also accept that the evidence of Mr Paterson was that a developer would get necessary permissions from the roads authorities to bring all necessary infill material to the site. There would be conditions as to the times and numbers of vehicles permitted. If we accept the evidence of Mr Jones as to the need for infill to create a suitable course at this location, a prospective developer, similarly persuaded, would have to take account of the risk involved in relation to these conditions and the timing of his operations. He would have to satisfy himself that there would be a source of adequate volumes of clean infill at the right times for his project. Although we understood the fundamental submission to be that an international developer would be so attracted by the site that he would not have regard to questions of cost, the fact that such issues would inevitably lie in the background, emphasises the critical issue of the quality of the site. Unless a site is plainly special, commercial realities could not be ignored.

[101] The main live dispute over the CAAD was in relation to the expenses of the appeal. These expenses were potentially a proper item of claim in terms of section 25(9A) and a claim was made explicitly although the claimants also purported to reserve a claim for “Surveyor and legal fees in pursuing the claim”. It was contended by the respondents that if the applicants failed to satisfy the Tribunal that the 27-hole development would add value, such expenses could not have been reasonably incurred within the meaning of the section.

[102] For the purposes of the present case we proceed on the basis that the expression “reasonably incurred” is indeed apt to qualify the whole appeal exercise and not simply the various elements of expense occurred. But, in assessing whether expense was reasonably incurred we do not accept that ultimate success on the issue of valuation is of critical significance. Reasonableness requires to be assessed on a broader basis. We must consider the position at the time the expenses were incurred. We must have regard to the fact that reasonable arguments are not always successful.

[103] It is well established that a person facing compulsory expropriation of his land is entitled to the expense of making enquiries and taking advice as to value. This will cover the reasonable cost of negotiation with the acquiring authority - even if that leads to acceptance of any figure which may have been provisionally offered by that authority. This is treated as part of the inevitable consequences of dispossession. We understand that it is these items which are intended to be covered by the reservation and we accept that it is common practice to proceed in this way. (It might be thought that better practice would be to attempt to settle such claims and bring any disputed items to the Tribunal at the same time as any other disputed elements). The expense of the CAAD procedure was incurred in the context of attempts to agree a figure. The CAAD issue was regarded by the Council as worth opposing. There is no suggestion that the respondents ever protested that the whole exercise was irrelevant. On the contrary, although the precise detail of discussions was, not surprisingly, a little unclear, we accept that the applicants’ advisers were given to understand that a CAAD for 27 holes would make a difference to the attitude of the Council’s advisers and was accepted as a relevant element in the valuation. We accept that it was reasonable, in this case, for the applicants to treat this as a matter requiring to be dealt with in two stages. The appropriate CAAD was necessary to establish the extent of the potential development. There seems to have been at least a tacit agreement to approach matters in that way. Once the potential had been established parties expected to go on to discuss the significance of that development in terms of value. As the respondents had not agreed the base stage it was reasonable for the applicants to incur the expense of establishing it. We are satisfied in principle that the overall expense of the appeal was reasonably incurred. If items of detailed figures cannot be agreed, parties will require to return to the Tribunal.

[104] It may be observed that we consider our approach to be consistent with the approach approved in England by the Court of Appeal in Purfleet Farms Ltd v Secretary of State 2002 RVR 368. Although not directly in point the broad principle underlying that decision was that the expropriated party was entitled to a degree of latitude in relation to expenses. Where expense is incurred at the stage of discussion with the acquiring authority it may readily be accepted as part of the consequences of dispossession.

Decision

[105] It was agreed that, at valuation date, the site would not have attracted demand from any commercial golf course developer in the British market. The applicants have not satisfied us that there would have been a demand for the site as a “trophy course”, or on any other basis, on the international market. Accordingly we can answer the substantive question by finding that the subjects had no enhanced value as a golf course development. The matter will now proceed to be determined on the basis of the price the site might reasonably have expected to attract if offered for sale on the open market, with the benefit of the CAAD, but on the assumption that there would have been no demand for use as a golf course at valuation date. This could include, if proved to our satisfaction any additional value above basic agricultural value reflecting the price a purchaser might pay in the hope of achieving in the future permission for a use justifying a higher value. No question of injurious affection now arises by comparison of future use with use as a championship golf course. This is sufficient to deal with the first stage of that claim. Although we heard evidence of the potential injurious affection arising from the impact of the land take on the different areas of adjacent farm land, we have not been asked at this stage to deal with a claim on such basis. That matter will have to be addressed at the next stage.

[106] At the hearing we expressed a view to the effect that even without the benefit of planning permission land lying adjacent to Edinburgh might well be expected to have a value above the figure of £3200 per acre referred to by the respondents. It is right to make it clear that the view was expressed in course of incidental submissions on procedure and was based on little more than an impression that it would be surprising if a figure, determined on the basis of evidence led in a previous case, remained unchanged 20 years later. The issue of value is, of course, a matter which is dependent on evidence and will have to be determined on the basis of the whole evidence to be presented to us.

[107] We continue the cause and hope that if parties cannot manage an overall settlement, they will be able to focus the matters in dispute as narrowly as possible. Parties should bear in mind the possibility of a preliminary meeting to help clarify issues before any further diet of proof. If they think this might be helpful they should discuss it with our clerk.