DESCRIPTIVE RUBRIC

Compensation – Compulsory purchases – Previous references – Fresh claim for ‘omitted compensation’ – Contractual issue whether settlement agreement had discharged claim – Res Judicata – Res Noviter – Time Bar – Competency – Lands Clauses Consolidation (Scotland) Act 1845, Ss 117-119 – Town and Country Planning (Scotland) Act 1997, Sched 15

McKechnie v South Lanarkshire Council (2)
5 March 2009
LTS/COMP/2008/02

Land and buildings owned by the applicant had been the subject of a deemed compulsory purchase. A reference of his claim to compensation to the Tribunal in 1999 had been the subject of a settlement agreement prior to hearing. A second reference had been dismissed by the Tribunal in 2006 (LTS/COMP/2005/05) following a hearing, with parties’ agreement, on the issue whether the claims then included had been extinguished by the previous agreement. The claim made a further reference, alleging that it had only come to his attention in 1997 that the council had obtained settlement of an insurance claim in respect of the loss of one building in a fire at a higher sum than the amount allocated to that building in the settlement agreement. It was claimed that this was a claim for ‘omitted compensation’ under Section 117 of the 1845 Act. The respondents took three preliminary arguments: res judicata (to which the applicant responded res noviter veniens ad notitiam); time bar; and competency.

Held, dismissing the reference, (1) the plea of res judicata, based on the Tribunals’ decision in 2006, succeeded. Analysing the claim now made in order to see whether it was the same claim, it was clear that this was not a claim in respect of another compensatable interest not previously purchased or compensated, but rather, again, an additional element of compensation over and above the amount received. The Tribunal had ruled in 2006 that such claims were not competent. The requirements for res judicata were satisfied. As regards, res noviter, although there was a new factual basis, the claimant had not done enough to indicate that the new evidence could demonstrate any different value of the subjects at the relevant date;

(2) The plea of time bar would be repelled. The respondents’ submissions were insufficient to satisfy the Tribunal that there was any statutory time bar following notice to treat procedure, a matter on which there was considerable doubt. The accepted blight notice was a deemed notice to treat.

(3) The plea to the competency of the Tribunal deciding the contractual issue as to the correct interpretation of the settlement agreement would be upheld. In the absence of agreement, the Tribunal did not have such jurisdiction although, ironically, the parties had agreed to consideration of this issue in 2006, thus founding the res judicata plea.

(4) The respondents were entitled to an award of expenses.

Authorities referred to:-

Horn v Sunderland Corporation 1941 2 KB 26
Lands Clauses Consolidation (Scotland) Act 1845
Acquisition of Land (Assessment of Compensation) Act 1919
Compulsory Purchase Act 1965
Town and Country Planning (Scotland) Act 1997, Sched 15
Cripps, ‘Compensation’, 7th Ed’n
Rowan Robinson, ‘Compulsory Purchase – the Law in Scotland’, 2nd Ed’n


See full decision:  LTS/COMP/2008/02