OPINION

Aberdeen City Council v Glen Morrison and another

1. Mr and Mrs Glen Morrison (“the Objectors”) have served a notice of objection to severance upon Aberdeen City Council (“the council”) dated 19 June 2013. The Council are acquiring authority in terms of the Aberdeen City Council Access from the North Proposals (“Third Don Crossing”) Compulsory Purchase Order 2010 (“the CPO”) recorded 15 April 2013. A general vesting declaration (“GVD”) pursuant to the CPO has been made dated 29 May 2013. The GVD includes plot 37 which comprises part of the objectors’ front garden of their house at 16 Meadow Place, Tillydrone, Aberdeen. In the notice the objectors offer to sell the whole of their property to the Council.

2. Plot 37 comprises about half of the front garden. The other half is comprised in plot 36, over which the Council requires temporary access only. The council is unwilling to acquire the whole property and have referred the notice to the Tribunal in terms of the relevant legislation.

3. A hearing in Aberdeen took place on 14 May 2014. The Council was represented by Ms Fiona Selbie, solicitor. She led two witnesses, namely Tom Rogers and Shaun Peddie. Mr Rogers is an engineer and team leader (roads project) for the council. Mr Peddie, MRICS is a partner in D M Hall LLP. The objectors were represented by Mr Ross Slater, solicitor. He called Mr Morrison and Mr Keith Petrie FRICS of F G Burnett. The Tribunal held a site visit at which they were helpfully assisted by council staff who prepared markings on the ground showing where the property would be affected.

Statutory material

4. Schedule 15 to the Town and Country Planning (Scotland) Act 1997 provides:-

“21. Where a notice of objection to severance is served in respect of a person’s interest in any land (in Schedule 15 referred to as ‘The land proposed to be severed’) … then, notwithstanding anything in paragraph 7 of Schedule 15 –

(a) that interest shall not rest in the acquiring authority, and

(b) if he is entitled to possession of that land, the acquiring authority shall not be entitled to enter upon or take possession of it, until the Notice has been disposed of in accordance with the following provisions of Schedule 15.

22. Within three months after a person has served on the acquiring authority a Notice of Objection to severance, the acquiring authority shall either –

(b) serve notice on him that the general vesting declaration shall have effect, in relation to his interest in the land proposed to be severed, as if the whole of that land had been comprised in the declaration (and in the compulsory purchase order, if part only of that land was comprised in that order), or

(c) refer the notice of objection to severance to the Lands Tribunal for Scotland and notify him that it has been so referred.

26. Where in accordance with paragraph 22(c) above an acquiring authority refer a notice of objection to severance to the Lands Tribunal, and on that reference the Tribunal determines that the part of the land proposed to be severed which is comprised in the general vesting declaration can be taken –

(a) in the case of a house, building or factory, without material detriment, or

(b) in the case of a park or garden, without seriously affecting the amenity or convenience of the house,

paragraph 21 above shall thereupon cease to have effect in relation to that notice.

27(1) if on such a reference the Lands Tribunal does not make a determination in accordance with the last preceding paragraph, the Tribunal shall determine the area of that land (being the whole of it or a part of it which includes the part comprised in the general vesting declaration) which the acquiring authority ought to be required to take; and the general vesting declaration shall have effect, in relation to the interest in that area of the person who served the notice of objection to severance, as if the whole of that area had been comprised in the general vesting declaration, whether apart from Schedule 15 the acquiring authority could have been authorised to acquire that interest in the whole of that area or not.

(2) Where the preceding sub-paragraph applies, and parts of the area determined by the Lands Tribunal was not comprised in the compulsory purchase order, the general vesting declaration shall have effect as mentioned in the preceding paragraph as if the whole of that area had been comprised in the compulsory purchase order as well as in the declaration.”

5. The Land Compensation (Scotland) Act 1973 provides as follows:-

“54 – Determination of material detriment where part of house etc proposed for compulsory acquisition.

(1) In determining under … paragraph 26 of Schedule 15 to the Town and Country Planning (Scotland) Act 1997 whether –

(a) part of a house, building or manufacturing can be taken without material detriment or damage to the house, building or machinery; or

(b) part of a park or garden belonging to a house can be taken without seriously affecting the amenity or convenience of the house,

the Lands Tribunal shall take into account not only the effects of the severance but also the use to be made of the part proposed to be acquired and, in a case where the part is proposed to be acquired for works or other purposes, extending to other land, the effect of the whole of the works and the use to be made of the other land.”

Authorities

McMillan v Strathclyde Regional Council 1984 SLT (Lands Tr) 25
McIlroy v Strathclyde Regional Council LTS/SEV/1993/1 (unreported 8 June 1994)

Background

6. North Aberdeen has serious traffic congestion in peak periods. It is particularly acute on the A90 and A96 roads. In order to address the situation the council has decided to construct a third crossing over the River Don. This will provide relief to the existing routes. Amongst other things it will allow local traffic to make the crossing by avoiding the existing corridors. As part of the Scheme road improvements are required which in turn have necessitated compulsory acquisition of land. Following a public inquiry a senior reporter recommended that land be acquired compulsorily for completion of the Scheme. Scottish Ministers confirmed the CPO on 13 March 2012.

7. The objectors own 16 Meadow Place, Tillydrone. They acquired it from the council in 2007. It is a small semi-detached dwellinghouse on one and a half floors. It has a front and back garden. It is situated at the corner of Gordon’s Mills Road and Meadow Place. The house sits on higher ground above the road and the front garden slopes downwards. The front of the house faces south and the objectors have constructed decking adjacent to the front door. Much of the rear garden is taken by a shared drying area. There is also a greenhouse and garden shed at the rear.

8. Under the scheme the council require to widen Gordon’s Mills Road. It will remain a single carriageway in each direction. Plot 37 acquires 43m2 consisting of just over one-half of the front garden. The plot is triangular, essentially comprising the “corner area of the garden between the two roads. In terms of the proposals, the distance from the edge of the carriageway to the nearest part of the house will reduce from 12.8m to 8.6m. The distance from the existing heel of the footway to the nearest part of the house will reduce from 10.8m to about 5m, the latter being measured from the edge (nearest the house) of a small verge to be constructed. Part of the land being taken will not in fact form the carriageway or footway, but is to be used for purposes ancillary to the road and will require remodelling of the ground. Existing garden hedging, a small tree and various shrubs will be removed.

9. Traffic modelling has been carried out. The peak traffic volume along Gordon’s Mills Road is presently of the order of 82 vehicles between 7am and 8am. The predicted volume in 2017 in that hour is 1,243 vehicles. That figure is likely to increase in the longer term, in Mr Rogers’ view, by 50-100%. Various comments were made on the traffic figures but it is sufficient for our purposes to adopt the conclusions of the reporter. At paragraph 165 of his report he describes the residents of Tillydrone as having at present a relatively quiet and broad residential street. We infer this is a reference to Gordon’s Mills Road. (para 164). At paragraph 158 he refers to the new carriageway as being a busy road. We heard that the commuter rush is approximately two hours in the morning and two hours in the afternoon, so the road will be busy for about four hours per day. Our own observations indicate that the road is quiet at present.

Valuation evidence

10. Both parties produced comparison evidence. This evidence was of limited value to the test we have to consider, so we do not discuss it in detail. Mr Peddie for the council was able to show that there is still a strong market for property in Aberdeen, even where that property is adjacent to a busy road in the city. Mr Petrie for the objectors produced examples of rural properties being impacted upon by the now approved Aberdeen Western Peripheral Route (“AWPR”) scheme. The examples demonstrated that if marketed at a price reflecting the value to be obtained in the no scheme, there would be unlikely to be any offers.

11. Both surveyors spoke to the extent of diminution in value of the objectors’ property on account of the CPO and the Scheme generally. Neither surveyor was able to produce evidence of direct comparison. Rather, as is probably inevitable in a case such as the present, each relied upon his own experience and intuition. Mr Peddie for the council considered that the property could presently be valued at £165,000 in the no scheme world, and which would fall to £145,000 being its present value on account of the scheme. This was an impact of some 13% which he described as a significant impact. Mr Petrie for the objectors would have valued the property in the no scheme word at £175,000 but assuming a value of £165,000 he considered the impact would be of the order of 25%. So on that basis in his view, the present value in the scheme world was £125,000.

The test

12. There was no dispute that under sub-paragraph (a) of paragraph 26 of Schedule 15 to the 1997 Act “house” includes the curtilage of the house and therefore the garden. The issue is thus whether the part of the garden can be taken without material detriment to the whole property. This is an apparently more onerous test for the council than sub-paragraph (b) where the issue is whether part of the garden can be taken “without seriously affecting the amenity or convenience of the house”. In determining material detriment under (a) the correct way to judge the matter objectively is to consider whether the remainder, after the part is taken, is less useful or less valuable in some significant degree compared with the property as existing before the acquisition takes place. These propositions are vouched in McMillan v Stathclyde Regional Council and the cases referred to therein.

13. Nor was there dispute that once land is taken for the scheme it is necessary in terms of Section 54 of the 1973 Act to take account of the use to be made of other land where the land taken is acquired for purposes extending to the other land. In other words, we are required to take account of the impact of the scheme as a whole including the increase in traffic as impacting upon the objectors property.

Submissions

14. The objectors submitted that material detriment was established on the basis of the extent of loss of amenity and the valuation evidence. The council submitted that in order to show material detriment it was necessary for the impact to be more in the nature of causing a substantial inability to market the property; to an extent for example that occupants of the property would be unable to enjoy life; it followed that a reduction in value per se was not enough. It was submitted that there was still a reasonable amount of garden left, compensation would be awarded for the loss of the land; only in a more extreme situation could the council be forced to acquire the whole property.

Discussion

15. We reject the council’s submission. We do not think there is anything in the words of paragraph 26(a) which import a threshold as high as the council suggest. As the Tribunal said in McIlroy v Strathclyde Regional Council:-

“… there is no implication that where the effects of severance are not particularly serious, a proprietor is to be restricted to claiming compensation. In any event there is no apparent justification for the view that it is only in cases where the effects of severance can be described as particularly severe or particularly serious that an acquiring authority is to be obliged to take all the land. The use in the Acts of a phrase such as ‘material detriment’ does not suggest that the test is intended to be so demanding.”

16. In our opinion the property will be less useful and less valuable in some significant degree, thus constituting material detriment. Three aspects have combined to this effect; namely the loss of the portion of garden, the bringing nearer of the carriageway and footway to the house itself and the busier road. The amenity of the front garden, whose south facing aspect can be enjoyed in present quiet surroundings, will be compromised. The front garden will be markedly less congenial. The new road will be a busy commuter route.

17. In our view there is a significant impact on value. We accept there is a range of professional opinion of a diminution between 13 and 25% - i.e. £20,000 to £40,000 from the value would in the no scheme world. We do not think it is necessary for us to state a preference as to which percentage figure to adopt or to reach a decision ourselves as to the appropriate difference in value. We are content to accept that where there is such a range of opinion the value will be less to a significant degree. If we had to state a preference between the surveying evidence, and we do not think we do, we would be inclined to a figure more towards the higher figure. This is because Mr Peddie took the view that the road would only be “slightly” closer to the house. Although it is fair to say that from the house itself the view of traffic is attenuated somewhat by the relative height of the building, we think relatively speaking, the market would perceive the movement of the road and footway towards the house as more than slight, not least because it will be a busy road. But on any view, the impact on value is significant and that is sufficient for the purposes of paragraph 26(a). It is unnecessary for us to consider sub-paragraph (b).

18. We therefore propose to find for the objectors and refuse to make a determination finding in terms of paragraph 26. We would propose to make a determination under paragraph 27 that the whole of the objectors’ property ought to be taken so that the GVD should have effect for the whole property. Before making a formal determination, we propose to give parties time to consider whether any other mechanism can be agreed by parties which would be preferable to the above course. We would point out that the Tribunal’s statutory jurisdiction restricts it to making the determination mentioned in paragraph 27 to Schedule 15. For the avoidance of doubt, this Opinion is not a “decision” for the purposes of the Lands Tribunal for Scotland Rules 2003. A formal decision will be issued at request of parties.

19. We have reserved the question of expenses. We would propose to deal with any motion for expenses by means of written submission.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 4 June 2014

Neil M Tainsh – Clerk to the Tribunal