TERRANCE MALDWYN WIBERG v CITY AND COUNTY OF SWANSEA ACQ/8/2001

UPPER TRIBUNAL
LANDS CHAMBER
ACQ/8/2001Case No ACQ/8/2001
Between
TERRANCE MALDWYN WIBERGApplicantCITY AND COUNTY OF SWANSEARespondent
Before
The PresidentVenue the Guildhall, SwanseaDate 12 December 2001Hearing 16 November 2001Property: Land at Bank Top Garage, Pontarddulais Road, Fforestfach, Swansea
[1]This is a decision on preliminary issues that arise on a claim for compensation for the compulsory acquisition under the County of West Glamorgan (A484/A483 Llanelli Link Road Phase II Victoria Road, Cwmdu) Compulsory Purchase Order 1988 of 554.39 square metres of land that formed part of a storage yard and access to premises known as Bank Top Garage, Pontardulais Road, Forestfach, Swansea, and the right to re-grade part of an embankment, rough land and access comprising 241.63 metres or thereabouts. Notice to treat dated 3 July 1990 was served on Illtyd Thomas & Sons (Haulage) Ltd, then the owner of Bank Top Garage. The claimant became the freehold owner of Bank Top Garage under a conveyance dated 15 July 1991. West Glamorgan County Council entered on the land in August 1991. The City and County of Swansea succeeded to the county council’s functions on 1 April 1996. The claimant gave notice of reference to this Tribunal on 19 January 2001.[2]On the application of the acquiring authority it was ordered that the following should be determined as preliminary issues:(i) Is the claimant’s claim barred by reason of the provisions of the Limitation Act 1980?(ii) Is the acquiring authority estopped from relying on the provisions of the 1980 Act?(iii) Is there a binding agreement subject to satisfactory title for the acquisition of the land in the sum of £6,290 plus agent’s fees plus statutory interest?[3]The parties had agreed a statement of facts, and there were witness statements from the claimant and from Wendy Mary Parkin, a conveyancer in the County Secretary’s Department, and Ian Ritchie, a chartered surveyor and the council’s Acquisitions/CPO Manager, on behalf of the acquiring authority. There is agreement that section 9 of the Limitation Act 1980 applies to the claim in this case, and that the 6 year period in which to bring a claim expired in August 1997. There is no dispute of fact.[4]Shortly before the conveyance to the claimant, on 28 June 1991, Davies and Wilcox, chartered surveyors, had written to the council stating that they acted for the claimant and that he had recently purchased Bank Top Garage. They asked for drawings and information so that they could commence negotiations with a view to obtaining compensation. There then followed correspondence between the acquiring authority and the agents relating to proposed accommodation works, alternative land requirements and the new boundary. On 5 November 1991 the agents wrote to the acquiring authority saying what the claimant had paid for the property and setting out the basis for assessing land value. Correspondence continued. On 15 March 1995 the acquiring authority wrote to the agents expressing concern at the delay in settling the claim and suggesting they might wish to make an application for an advance payment of compensation.[5]On 5 June 1995 Mr S H Davies of Foote and Halfpenny (with whom Davies and Wilcox had been incorporated) wrote to Mr G M James of West Glamorgan County Council referring 3 to a meeting that they had had on 25 May 1995 and setting out “the basis of the claim on which my client is prepared to agree this matter.” In addition to an amount for the land and the right (£3,305), there were amounts relating to electricity supply, regrading the access road and fencing (together £2,985). The total of these was thus £6,290. In addition there was an amount, £10,500, for “alternative accommodation”, bringing the total claim to £16,790.[6]On 3 August 1995 Mr Davies wrote to the council providing further information relating to the alternative accommodation and requesting an advance payment of the £6,290. On 13 October 1995 the council’s Property Services Committee received an officer’s report recommending that an advance payment of compensation in the sum of £5,660 should be made under section 52 of the Land Compensation Act 1973 subject to the County Secretary being satisfied as to title. The report set out under the heading “Claim” amounts that, it would appear, were those originally sought by the claimant and, under the heading “Valuation”, the £6,290 and its components. £5,660 was shown to be 90% of this amount. The report went on:
“Negotiations for the acquisition of the Freehold Interest in the land taken for the Scheme are ongoing and the outcome will be the subject of a future report”
. The committee resolved to make an advance payment in the sum indicated subject to the County Secretary being satisfied as to title.[7]On 20 November 1995 the Assistant County Surveyor wrote to the claimant’s solicitors referring to the proposed advance payment and asking for an epitome of title or office copy entries so that the claimant’s title could be approved before payment was made.[8]On 27 March 1996 the claimant’s solicitors wrote to the council enclosing a statutory declaration made by the claimant in respect of rent paid for alternative premises. It asked that the claim be finalised.[9]There was a substantial amount of correspondence between the parties on the question of title. On 13 October 1994 the claimant had conveyed what he believed to be the area of land retained by him to one Kenneth Appleyard, but included in the land conveyed was a small part of the land acquired. On 13 January 1997 Mr A R North, on behalf of the council’s Head of Estates, wrote to Mr Davies noting that the claimant was not in a position to transfer the whole of the land acquired. He said: “In view of the above, I regret to advise that the sum previously agreed for land taken in this instance must be renegotiated to take account of the reduced area now remaining within your client’s ownership. The area of land retained within the ownership of your client is shown coloured red on the enclosed plan”.[10]On 3 March 1997 Mr North wrote to Foote and Halfpenny, referring to a meeting they had had on 29 January 1997. He recalculated the value of the land to take account of the reduction in area. He said that he was prepared to instruct an advance payment based on £1,142 for the land and £2,985 for the other elements. The letter went on: 4 “Section 52 of the Land Compensation Act 1973 permits advance payments to be made to the value of 90% of the agreed sum of compensation and the advance payment in respect of the land element and the above is therefore £3,714. I would further confirm that your client’s claim for rental paid for alternative premises cannot be considered as the Director of Highways, Technical and Property Services has advised that access to the claimant’s premises was maintained at all times during the scheme. Should your client wish to pursue a claim for loss of trade attributable to disturbance during the operational period of the scheme then it will be necessary for the claim to be substantiated by the submission of suitable accounts for examination by my Council’s Finance Department together with such evidence that unequivocally establishes it as being due to the scheme works.” It appears from a letter of 7 April 1997 from the claimant’s solicitors that the claim for the loss of profits had been raised at the meeting on 29 January and that it had been agreed that the council would consider such a claim.[11]There was then further correspondence on the question of title, and on 16 December 1997 the claimant’s solicitors wrote to the council enclosing a copy of a deed of rectification under which the part of the acquired land mistakenly conveyed to Mr Appleyard was restored to the claimant. There was a dispute between the parties about who – the council or the claimant – had been responsible for the error.[12]On 25 August 1998 Mr North wrote to Mr Davies saying that he was prepared to recommend “the previously agreed Advance Payment” based on the agreed valuation of £6,290. He said: “You will no doubt recall that Advance Payments of Compensation under the provisions of section 52 of the Land Compensation Act 1973 are based upon 90% of the agreed compensation which in this instance equates to £5,660”.[13]In a letter of 27 October 1998 Mr Davies stated that the claimant wished such an advance payment to be made, and said that this was “without prejudice to the ongoing claim for compensation in respect of disruption to my client’s business and any other relevant matters.” On 9 December 1998 Mr North wrote saying:
“I note that your client has now indicated that he wishes to proceed on the basis of the advance payment of those Heads of Claim outlined in my letter of 25 August 1998…”
He also requested further information on the loss of profits claim.[14]There was then further correspondence on the matter of further information on the loss of profits claim, and on 22 November 1999 Mr David Turner, on behalf of the council’s Head of Estates, wrote to Foote and Halfpenny: 5 “I do not feel that your client’s circumstances are sufficient to justify a claim for loss of profit and cannot, therefore, pursue a settlement on this basis despite the direction of earlier negotiations… Whilst the original request for an advance payment was made on 3 August 1995, it was necessary to defer issue due to problems with your client’s title… Notwithstanding the above I confirm that I will shortly issue instructions to our Legal Department to proceed with the advance payment.”[15]On 15 February 2000 the Head of Legal and Committee Services wrote to the claimant’s solicitors:
“I refer to our recent telephone conversation regarding the above matter and would confirm that I have now received instructions from my Head of Estates to issue to your client an advance payment in the sum of £5,660. I have also been instructed to issue an advance payment in respect of surveyor’s fees in the sum of £252.00. Interest will be payable at the statutory rate on both these figures and will be payable from the date of entry which has been confirmed as August 1991. However, please note that the title difficulties will need to be addressed before any payment is made…”
[16]On 21 November 2000 a further letter said:
“As to an advance payment of compensation, I would refer you to my letter dated 15 February 2000 to which I have not received a specific response.”
[17]In a letter to the claimant’s solicitors of 9 January 2001 Mrs Parkin referred to the decision in Hillingdon London Borough Council v ARC Ltd (No 2) [2000] RVR 283. She said that meetings were taking place on this, and the council had not yet reached a final decision as to cases affected by it. Ten days later, on 19 January 2001, without waiting for an indication from the council on whether they were going to take the limitation point, the claimant gave Notice of Reference.[18]For the acquiring authority Mr Milwyn Jarman QC submitted that a statutory contract existed. He said that the correspondence established an agreement, reached between 1995 and 1996, that the compensation was to be £6,290. It is, in my judgment, not the case that an agreement was reached at that time that the compensation should be £6,290 and no more. At no point had the claimant’s agents said or implied that they accepted £6,290 as the totality of the compensation. On the contrary they made clear throughout that they were seeking an additional amount – during 1995 and 1996 in relation to the cost of alternative accommodation during the carrying out of the works and from 1997 for loss of profits. That the councils recognised that the claimants were seeking these additional amounts is clear from the correspondence, and there is no suggestion at any point that there could be no entitlement to any additional amount because compensation in its totality had already been agreed. West Glamorgan County Council, in what is the only resolution of either council on the matter of compensation, resolved on 13 October 1995 to authorise an advance payment, on the basis of an officer’s report that stated that negotiations were ongoing. 6[19]The position, I find, was as follows:(i) Agreement was reached between 5 June 1995 and 20 November 1995 on the sum of £6,290 for those items of claim identified under the heading “Valuation” in the officer’s report of 13 October 1995.(ii) Agreement was reached at the same time that the sum of £5,660 should be paid as an advance payment of compensation under section 52.(iii) As part of that agreement there was acceptance on the part of the council that the claimant could pursue his claim for an additional amount for the cost of alternative accommodation.(iv) It was implicit in (iii) that the issue of the additional amount claimed would be resolved either by agreement or through the statutory procedure, ie by reference to the Lands Tribunal.(v) The period within which the claimant was entitled to refer the matter to the Lands Tribunal expired in August 1997.(vi) Negotiations on the additional amount claimed and discussion on the making of the advance payment continued after August 1997. After this date the claimant extended his claim to include a further amount for loss of profit. The council was prepared to consider this, but following the provision of further information it was rejected.(vii) At no time did either party refer to the possibility of a reference to the Lands Tribunal.(viii) There is no evidence that any thought was given by either party to the question of limitation until the decision of the Court of Appeal in Hillingdon (No 2) in June 2000. At the time that notice of reference was given the council had not said that it would rely on the limitation defence. At no time, however, had it said that it would not do so.(ix) The council do not agree that any additional amount should be paid to the claimant, and they rely on the limitation defence.[20]On estoppel, Mr Jarman placed reliance on Hillingdon (No.2). There Arden J, giving the judgment of the Court of Appeal ([2000] RVR 283 at 291, para 57), noted that a party may be estopped in an appropriate case from relying on a limitation defence, but went on:
“However no authority has been cited to us, apart from the decision of the judge in this case, whereby a party has been held disentitled from relying on a limitation defence merely because he has continued to negotiate with another party about the claim after the limitation period had expired and without anything being agreed about the manner in which the claim was to be resolved if negotiations broke down. What was happening here was that the parties were negotiating without any regard to the limitation period”
She went on (at para 62): 7 “A shared assumption is not on the authorities sufficient to establish an estoppel unless it is communicated.”[21]Mr Jarman also referred to Llanelec Precision Engineering Company Ltd v Neath Port Talbot County Borough Council [2000] 3 EGLR 158, where at 163J I said, in the light of this judgment:
“Thus, for the parties simply to negotiate without regard to the limitation period will not be sufficient to found an estoppel. What the claimant has to show is that there was a shared assumption that there was a valid claim and that the acquiring authority would not take any defence that might be open to it upon the basis of the statutory limitation period. Furthermore, this shared assumption must have been communicated between the parties.”
[22]As I said in Bhattacharjee v Blackburn with Darwin Borough Council (ACQ/10/1999 para 32, unreported), in the case of an acquiring authority, the expiry of the limitation period does not affect the power of the authority to agree and pay compensation. I went on:
“… Thus the mere fact that claimant and acquiring authority negotiate on compensation after the lapse of the limitation period will be insufficient to establish the convention that the negotiations are on the basis that either party may refer the issue of compensation to the Lands Tribunal if agreement cannot be reached. The mere fact of negotiation could be consistent with the potential exercise by the authority of its power to pay compensation and its reservation of the question of limitation. Evidence going beyond the mere fact of negotiation will be required in order to establish an estoppel or waiver.”
[23]In that case the acquiring authority had agreed, after the expiry of the limitation period, to make an advance payment of compensation, and I concluded on the facts that there was an enforceable agreement that disabled the council from relying on the limitation defence during such period as was reasonably required for the claimant to make a claim and commence proceedings in the Lands Tribunal on the outstanding disturbance element of the claim. I drew this decision to the parties’ attention, and Mr Paul Marshall for the claimant placed reliance on it.[24]Mr Jarman pointed out the differences between Bhattacharjee and the present case. Firstly, he said, section 52(5), which, in dealing with the repayment of any excess, was relevant in Bhattacharjee was not relevant in the present case where the amount requested was a precise figure that was accepted by the authority. There could be no suggestion that the parties might have had in mind the need to determine compensation for the purpose of establishing the amount of a possible repayment. Secondly, Mr Jarman said, in Bhattarcharjee the advance payment was agreed and paid after the limitation period had expired. In the present case everything related to what was agreed and authorised in 1995. Thirdly, he said, any agreement would not be one that implied a waiver for all time of the right to rely on limitation. Specifically there had been no waiver after August 1997, when the limitation period expired. 8[25]I agree with Mr Jarman that the agreement made outside the limitation period to make an advance payment under section 52 in circumstances in which it might have become necessary to have compensation determined as contemplated by section 52(5) distinguishes Bhattarcharjee from the present case. All that happened in the present case was that the council continued after the expiry of the limitation period to express its preparedness to pay the compensation that it had agreed to pay, and to make the advance payment that it had agreed to make, in 1995. It was also prepared to consider, but later rejected, an additional claim for loss of profits. In my judgment the effect of the agreement in 1995 was that the council would pay compensation in the sum of £6,290 plus any additional amount that might be agreed or determined under the statutory provisions and would make an advance payment of £5,660. It has never agreed, expressly or impliedly, to waive the limitation period, and the parties have never proceeded on the convention that the limitation period did not apply. The claim is statute barred, and the authority are not estopped from relying on the limitation defence. Since the council now rejects any additional amount claimed and since the claimant cannot now use the statutory machinery to have the question of an additional amount determined, the agreement takes effect so as to require the payment of compensation in the sum of £6,290 and no more.[26]Accordingly the preliminary issues must be determined as follows:(i) Yes(ii) No(iii) Yes These determinations dispose of the proceedings. The claim is dismissed. The parties are invited to make submissions as to costs. The decision will not take effect until the question of costs is determined. Dated 22 November 2001 George Bartlett QC, President 9 ADDENDUM ON COSTS[27]Each party asks for its costs. I have considered the submissions made. Since the result of the determination of the preliminary issues is that the claim has been dismissed, under the general rule (see Lands Tribunal Practice Directions para 19.3) the acquiring authority, as the successful party, ought to have its costs. On behalf of the claimant, however, it is said that it was not until the authority’s skeleton argument, dated 14 November 2001, 2 days before the hearing, that the claimant was aware that the authority was saying on issue 3 that there was a binding agreement in the sum of £6,290. Had the authority’s advisers been informed of this at an earlier stage it is likely, they say, that the reference to the Tribunal would have been withdrawn or agreement reached.[28]That the case for the authority on issue 3 was that the answer to the question was “Yes” is clear, in my view, from the witness statement of Ian Ritchie, which was lodged under cover of a letter dated 18 July 2001. Paragraph 10 of that statement set out the composition of what was referred to as “the agreed claim”, and para 11 stated that it was this agreement that formed the basis of the request for an advance payment. Paras 16 to 18 made clear that it was only lack of satisfaction as to title that inhibited the authority from making the advance payment, and it is equally clear, in my view, from paras 19 to 24 that it was the claim for rent and the claim for loss of profits that the authority resisted. It does not seem to me in the light of this statement that it was reasonable for the claimant to assume that the case for the authority in relation to issue 3 was that there was no effective agreement on the £6,290. Moreover, had there been any doubt on the claimant’s part what the stance of the authority was on issue 3, this could have been clarified at any stage.[29]I can therefore see no reason why the authority should not have its costs of the reference. The claimant must pay those costs, which, in default of agreement, must be the subject of a detailed assessment by the Registrar on the standard basis. Dated 12 December 2001 George Bartlett QC, President 10