Dr W G and Mrs D HORTON Mr. L F GRIFFIN v WORCESTERSHIRE COUNTY COUNCIL LCA/64/2001

UPPER TRIBUNAL

LANDS CHAMBER

LCA/64/2001

Case No LCA/64/2001, LCA/66/2001

Between

Dr W G and Mrs D HORTON Mr. L F GRIFFINApplicant

WORCESTERSHIRE COUNTY COUNCILRespondent

Before

P R Francis FRICS

Venue The Town Hall, Evesham, Worcs

Date 15 October 2001

Hearing 14 and 15 August 2001

Property: Top Farm and Summer Cottage, Bibsworth Lane, Broadway, Worcs, WR12 7LW

Catchwords: COMPENSATION – Land Compensation Act 1973, Part 1 - residential dwellings – injurious affection – effects of noise, dust, fumes and artificial lighting following construction and use of the Broadway by-pass – compensation awarded £30,000 and £11,250

[1]These are two references, heard under the Simplified Procedure (Rule 28, Lands Tribunal Rules 1996), to determine the compensation payable by Worcestershire County Council (“the Council”) under Part 1 of the Land Compensation Act 1973 (“the 1973 Act”) following the coming into use of the Broadway Bypass (“the bypass”).

[2]The first claimants (under ref: LCA/64/2001), Dr and Mrs Horton, were the former owners of Top Farm, Bibsworth Lane, Broadway (“Top Farm”) and the second claimant (under ref: LCA/66/2001) was Mr. L F Griffin, owner of the adjoining property, Summer Cottage, Bibsworth Lane, Broadway (“Summer Cottage”).

[3]Mr. R G R Mumford FRICS IRRV FAAV, a partner in Timothy Lea and Griffiths, Estate Agents and Chartered Surveyors of Broadway, appeared for the claimants under both references with permission of the Tribunal. Mr. A C Moore, Principal Solicitor to the Legal Services Department of Worcestershire County Council appeared for the respondent and called Mr. J R Prendergrast BSc (Hons) MRICS, a Principal Valuer with the Council.

[4]The parties had prepared a statement of agreed facts from which, together with the written and oral evidence and my inspection of the two properties on 14 August 2001, I find the following facts:4.1 The scheme, the use of which forms the basis of the claims, was known as the Broadway Bypass and was constructed under the Hereford and Worcester County Council (Broadway Bypass) Compulsory Purchase Order 1994. The respondent Council is the successor Authority to Hereford and Worcester County Council. The bypass was completed and opened to public traffic on 11 May 1998, this being the relevant date under section 1(9)(a) of the 1973 Act.

4.2 The ‘first claim day’ under section 3(2) of the 1973 Act is twelve months from the commencement of the public use of the highway and 11 May 1999 is therefore the valuation date. Compensation, if any, is to be assessed by reference to prices current on that date (section 4(1) of the 1973 Act).

4.3 Bibsworth Lane is a private lane that serves ten dwellings of mixed style and age, and is accessed directly off the eastern (upper) section of Broadway High Street. The lane continues, beyond the properties, through a newly constructed underpass beneath the new road, to an unoccupied farmhouse and agricultural land.

4.4 Top Farm is a freehold Cotswold attached barn conversion (the adjoining property to the south being Summer Cottage). It is constructed of Cotswold stone under tiled roofs, has been extensively modernised, is in good decorative order and contains oil fired central heating. Accommodation on two floors includes hall, cloakroom, galleried drawing room with mezzanine floor comprising office/study, dining room, sitting room, kitchen and utility together with 3 bedrooms each with en-suite bathroom.

4.5 There are large well maintained gardens to the rear and north side which, prior to the scheme, had uninterrupted rural views without direct sight of roads or 2 buildings. The rural views to the rear are now intersected by the bypass which is screened by a large bund. A short section of the actual road is visible in the distance, where it rises to the Fish Hill escarpment. There is a front courtyard and an additional area of land on the opposite side of Bibsworth Lane with an open fronted car-port, further parking and a store.

4.6 The rear wall of the house is approximately 143 metres from the centre of the bypass. Noise readings were taken from the patio on the rear (east) elevation in 1994, prior to the commencement of the scheme, and these indicated decibel levels in accordance with standard sound measurement procedures of 51 dB(A) (L10 (18 hour) levels). Readings were taken from the same position again in January 2000 at the request of Dr Horton showing 53.4 dB(A) with a predicted 2012 level of 55.3 dB(A). Readings were also taken in January 2000 from the flat roof on the side (north) elevation. These gave virtually identical readings to those on the east façade and, although no readings were taken in that position in 1994, it was estimated by the Company that took them that they would then have been in the region 46 - 47 dB(A).

4.7 The claimants sold the property subject to contract in October 1999 with completion in March 2000. The claim for compensation was submitted on the claimants’ behalf in September 1999 and it is agreed that, at the valuation date, they were the owners of the legal title and thus entitled to any compensation awarded under the 1973 Act. An advance payment under s.52 of the 1973 Act has been made in the sum of £18,000.

4.8 Summer Cottage is a semi-detached, centrally heated and modernised property with accommodation on two storeys and converted loft to the part that immediately adjoins Top Farm, and single storey accommodation to the section that was converted from former farm buildings. It comprises entrance lobby, sitting room, large kitchen/breakfast room, dining room, cloakroom, utility and workshop area. There are three bedrooms and a further bedroom or study and a bathroom. There is an enclosed courtyard garden to the front and a single garage. The small, enclosed rear garden had, as with Top Farm, uninterrupted rural views prior to the construction of the bypass, but that view is now partially bisected by the new road and partially interrupted by the bund.

4.9 The property was purchased by the claimant in October 1996, at which time the bypass was under construction. The claim under the 1973 Act was submitted to the Council in September 1999. The value of the property in the no-scheme world, absent the bypass or any proposals for it, is agreed at £232,500.

4.10 The rear wall of the house is approximately 155 metres from the centre of the new carriageway. No noise readings were taken on this property in October 1994 or in January 2000. However, it was agreed that, to all intents and purposes, the noise levels at the rear of this property could be expected to be virtually identical to those taken at the rear (east elevation) of Top Farm.

4.11 An advance payment of compensation has been made in respect of Summer Cottage under s.52 of the 1973 Act in the sum of £7,000. 3

4.12 In connection with both properties it is agreed that the “physical factors” for which compensation is payable are noise, dust and fumes from the traffic using the bypass, but the claimants contend that there is also injurious affection caused by car lights from the section of bypass that descends the Fish Hill escarpment. CLAIMANTS’ CASE

[5]Mr. Mumford has been practising in the Evesham area as a rural practice surveyor for some 39 years and has dealt with a number of Compensation valuations relating to the Evesham, Norton Lenchwick and Broadway bypasses.

[6]In his statement of evidence that was common to both properties, he described the locality in which they were situated as being on the edge of the central Broadway Conservation Area (but not actually within it), in the Cotswold area of Outstanding Natural Beauty and an area of Great Landscape Value. Broadway, being a world renowned Cotswold village had a high proportion of individual properties which, due to their location, command premiums substantially above those applying in nearby towns and villages.

[7]Prior to the construction of the bypass, the main A44 trunk road between Evesham and Oxford ran through the middle of the village and took in the High Street. It carried a considerable amount of traffic including substantial numbers of heavy goods vehicles (HGVs). Virtually all through traffic now uses the bypass, and the eastern section of the High Street (from which Bibsworth Lane runs) is now a cul-de-sac used only for access to local properties and a few off-centre shops. Mr. Mumford said that whilst the properties close to the junction of Bibsworth Lane and High Street, and those actually fronting High Street had therefore achieved a substantial gain, it was his view that neither of the subject properties had been adversely affected by the old route. There was, therefore, no betterment to be taken into account in assessing compensation. On the contrary, any of the residents of Bibsworth Lane wishing to go eastwards towards Oxford now needed to take a tortuous route around the village to gain access to the bypass, whereas previously they could simply have turned left directly onto the A44.

[8]The physical factors causing the depreciation of an interest in land, that could be claimed for under section 1, Part 1 of the 1973 Act, were noise, vibration, smell, fumes, smoke and artificial lighting, and the discharge onto the land of any solid or liquid substance. In the instant claims, whilst in certain weather conditions car and diesel fumes can be detected at the properties, and there was occasional vibration from lorries and particularly motorcycles that caused windows to rattle, these were more an irritation than factors affecting value.

[9]The main physical factor, and that which it was submitted really affected the values, was noise. To a lesser extent there was also the impact at night of the lights from cars descending the bottom section of Fish Hill where it becomes the new bypass. Whilst previously no artificial lighting was evident, the car lights are now visible from the rear gardens and also reflect onto internal walls and ceilings, particularly in winter when there are no leaves on the trees. 4

[10]As to noise, Mr. Mumford referred to the readings that were taken by the Council from the rear of Top Farm in 1994, prior to the commencement of the scheme, those that were undertaken by Messrs Halcrow on the instructions of Dr Horton in January 2000, and the predictions for anticipated increases by the year 2001. He also referred to PPG 24 which dealt with noise (although in cross-examination he accepted that this only related to new development) and the relevant part of a Department of Transport design manual for roads and bridges. He said that the manual indicated that communication started to become difficult at 55dB(A) – the figure which was predicted for 2012. There was also a 9 dB(A) increase between the estimated figure from the north elevation of Top Farm in 1994 (46 – 47 dB(A)) to the predicted figure of 55.3 dB(A) for 2012.

[11]Referring to statistics that showed 30 per cent more people were bothered by a 3 dB(A) increase, and 40 per cent more would be bothered by a 9 dB(A) increase in traffic noise, Mr. Mumford said this showed that a substantially increased number of potential buyers would be put off by the increased noise levels – even though they would not have been aware of what those levels were previously. He also said that measurement by instruments does not easily convey levels of disturbance. In a location such as the subject properties occupied, there would not be a constant drone like there is with a motorway, such continuous noise being acknowledged to be less intrusive. There would be more variable noise patterns which would include sudden and short bursts of increased noise (for instance from motorcycles or heavy lorries changing gear), and this was much more noticeable and intrusive. Mr. Mumford said that Broadway was a particular magnet for motorcyclists, especially at weekends, and on one recent Sunday morning he had personally counted 51 motorcycles over a half-hour period on the bypass.

[12]It was his view that the technical sound readings did not reflect the ‘startle factor’ of sudden bursts of noise particularly at night where noise tended to become much more noticeable and disturbing. There was also the speed factor – the old High Street was subject to a speed limit, whereas the bypass was not. Speeding vehicles were noisier.

[13]The actual and predicted increases in noise levels were such that, in his view, the market for potential buyers would be significantly affected. Whilst accepting that to some extent noise is what an individual is used to, Mr. Mumford submitted that any potential purchaser of a property in that location seeking a quiet and rural setting with easy access to the village would have their expectations shattered by the new bypass. Whilst both of the properties were substantially screened from the old A44 by the adjacent houses, and those fronting the High Street, that configuration of houses now acts like a collecting saucer for sound from the bypass.

[14]Mr. Mumford produced a letter he had received from Mrs Liz Eyre, a Worcestershire County Councillor, who lived in a property fronting Broadway High Street, and who had made an offer for Top Farm in the sum of £400,000 when it was first offered to the market by Dr and Mrs Horton. That offer was not accepted at the time it was made, one of the reasons being that a sale of the High Street property had not been agreed. Although a buyer was subsequently found, Mrs Eyre said she had withdrawn her offer because, having listened to the traffic noise from around the vicinity of Top Farm, she and her husband had concluded that the property was adversely affected by noise from the bypass and the pleasure of sitting 5 in the garden there would be seriously compromised. Her existing property had benefited substantially from the opening of the bypass and had become much quieter.

[15]Referring to a schedule of 17 settlements that related to a number of schemes with which he had been involved, (although none of them were in connection with the Broadway bypass), Mr. Mumford said they indicated that much higher percentages had been offered in than was the case with the subject properties. For example, Cleeve Hill House at Cleeve Prior, which was 900 metres from the Norton Lenchwick bypass had settled at 6.5 per cent on a part 1 claim. Two properties which were respectively within 500 and 600 yards of the M40 at Lapworth had settlements of 7 and 8 per cent of their pre-scheme values. Summer House, which was affected by, and within 300 yards of the Alcester bypass had a ten per cent settlement. A group of cottages at Knowle Hill affected by the Norton Lenchwick bypass were purchased in connection with the scheme, but had injurious affection individually assessed. Percentages relating to depreciation in value attributable to physical factors were concluded at figures ranging from 8.8 to 25 per cent for properties that had lower noise levels than the subject properties. All these settlements, taken together, gave a ‘tone-of-the-list’ that proved the Council’s offers for the subject properties were too low. Past Lands Tribunal cases, he said, indicated that settlements from other schemes were acceptable as comparables, although it was acknowledged that less weight was likely to be given to them.

[16]As to the Council’s comparables, Mr. Mumford said that the examples given mainly related to properties with much lower capital values, for example the houses in Smallbrook Road which were ex-local authority. In those cases, he said, not only was it likely that many of the owners would not realise they were entitled to claim, but with lower value properties the odd percentage point here and there made much less difference. Account should also be taken of the fact that many of the owners would prefer to accept a figure less than that to which they were fully entitled in preference to the time, effort and worry of going to the Lands Tribunal. It should also be noted, Mr. Mumford said, that the Smallbrook Road properties, and those in Leamington Road which were also in the Council’s list of comparables, were already affected by traffic noise whereas the subject properties had not been. In cross-examination, Mr. Mumford accepted that the Smallbrook Road properties were not ex-local authority.

[17]The low level of settlements reached on the cottages at 1, 2 and 4 Bibsworth Lane, which were nearer to the bypass than the subject properties, was a source of some surprise and it was understood that the owners were less than pleased with the result. Surveyors from outside the area had represented the claimants and Mr Mumford was of the view that they would not have been as familiar with the unique situation and values appertaining in Broadway.

[18]Finally, in respect of matters affecting both properties, Mr. Mumford referred to the Lands Tribunal case of Blower v Suffolk County Council

(1994) 67 P&CR 228

where His Honour Judge Rich QC had said, at p206: “in my judgment artificial lighting caused by the use of the highway must mean the illumination primarily of the highway, either by lamp standards or by traffic using the highway” 6 This meant that it was not just the effects of street lighting that could be compensated for, but also car lights.

[19]Mr. Mumford described Top Farm as a substantial residence converted from a farm barn. It is L shaped and the extensive accommodation amounts to approximately 389 sq.m. (4187 sq.ft.). A particular feature is the rear (east) and side (north) gardens which have large lawned areas, trees and borders. They were the type of gardens that owners would expect to enjoy, and spend time sitting out in the summer. Whilst the distance from the rear wall of the property to the middle of the new carriageway was agreed at 143 metres, the distance from the closest point of the garden to the bypass was only 90 metres.

[20]As he had already explained, the noise readings that had been taken in both 1994 and 2000 proved beyond doubt that there had been significant increases in levels, with further increases predicted by the year 2012. There was also disturbance in the rear rooms at night from car lights. The previously quiet and undisturbed environment was now substantially different, this being the reason Dr and Mrs Horton had decided to sell up and move to a modern house in a cul-de-sac just off the High Street which, post scheme, was much quieter.

[21]The house had first been offered by a local agent in July 1999 (by which time the bypass had been open for over a year) at an asking price of £425,000. Little interest was received, so that agent was dis-instructed and another local firm, Hayman Joyce, who had a more pessimistic view of its value (mid to upper £300,000 bracket), offered the house, and negotiated a sale in the sum of £390,000 in October 1999. The purchasers were also Broadway residents who lived in a house just off the High Street, and so, Mr. Mumford said, they would have been aware of the effects that the bypass had had.

[22]The sale price was the best evidence of open market value at the relevant date. To arrive at the pre-scheme value Mr. Mumford considered a number of freehold sales in the vicinity including Knap House, High Street, Broadway, that had sold in December 1997 for £450,000. It was a Grade II listed Cotswold stone house with mullioned windows, 2 reception rooms, 4 bedrooms, 2 bathrooms and a small self-contained flat. It was considered that prices generally had increased by 7 to 8 per cent in the intervening period.

[23]Thistle Lodge, High Street, Broadway was sold in May 1998 for £325,000. This was a 3 bedroom, 2 bathroom modern detached house with a swimming pool in a less private setting, and was thought to be inferior to the subject property. Milestone House, High Street, Broadway was sold in February 2000 for £450,000. This was a 5 bedroom 17th Century Grade II listed cottage with a 3 bedroom self-contained annexe that had been converted to a guest house.

[24]These comparables, together with a much more expensive property, Field House, Bibsworth Lane, Broadway which was sold in 2000 at a figure close to the asking price of £625,000, and some others, led Mr. Mumford to the conclusion that the value of Top Farm, in May 1999 excluding the physical factors referred to was £430,000. However, Mr. Prendergrast for the Council had valued Top Farm, pre-scheme, at £435,000 so he said that, 7 not surprisingly, he was prepared to agree that figure. The depreciation caused by the scheme was, therefore, in the region of 11per cent.

[25]Summer Cottage, the smaller of the two properties, had been purchased by Mr. Griffin in October 1996 and, Mr. Mumford said, any suggestion that compensation should not be awarded because he would have been aware of the bypass was vigorously opposed. He referred to Fallows v Gateshead Metropolitan Borough Council

(1993) 66 P&CR 460

, a Lands Tribunal case relating to a part 1 claim in which the Council opposed the payment of compensation on the grounds that the bypass was already under construction when the house was built, bought and occupied by the claimant, so the property was already depreciated. The member, J C Hill FRICS said: “It might be that valuing at ‘the first claim day’ could result in some cases in anomalies such as compensation being paid to an owner of a qualifying interest who had acquired that interest at a price which took account of the proposed works, but since in my view, the requirement to value at ‘the first claim day’ is mandatory any anomalous consequences in the present case are irrelevant”.

[26]As with Top Farm, noise was the main physical factor. It was agreed that any difference in noise levels between the two properties (as regards the rear elevations) would be minute and immeasurable. Regarding the effect of car lights, it was submitted that whereas the cottage previously had a totally rural and undisturbed outlook to the rear, lights can now be seen from the rear bedrooms and the reflections from them on walls and ceilings was disturbing.

[27]The pre-scheme value had been agreed at £232,500. The value taking into account the physical factors was reduced, Mr Mumford said, by £15,000 to £217,500 (a reduction of 6.45 per cent) based upon further comparable sales evidence.

[28]New 4 bedroom houses in St Saviours Gate, Leamington Road, Broadway were being sold in early 2000 for between £283,950 and £333,950. 4 Croft Gardens, Broadway, a 4 bedroom, 2 bathroom house close to the centre of the village, was sold new in 1998 for £208,000 and re-sold in September 1999 at a figure close to the asking price of £250,000.

[29]It was considered that the depreciation in value of Summer Cottage was less than Top Farm in percentage terms, because the effect of the bypass was only on the eastern (rear) façade, whereas Top Farm had large picture windows facing north, directly towards, and closer to the by pass. Summer Cottage was smaller as regards accommodation and the rear garden was also very small, meaning a potential purchaser of that property would not be one to which enjoyment of large gardens was so important.

[30]In cross-examination Mr. Mumford accepted that whilst he had said there had previously been no noise from the traffic using the A44/High Street, the difference between the actual readings taken on the east elevation of Top Farm, and the estimated readings for the north elevation, indicated that some noise would have been evident. He also acknowledged that the inconvenience caused by the extended route to the bypass for anyone 8 leaving Bibsworth Lane and heading towards Oxford would not have any depreciating effect on values.

[31]As to predicted future noise levels, Mr. Mumford insisted that whilst 46 dB(A) could be considered quiet, 55dB(A) would be seriously intrusive. Whilst prospective purchasers would not have had experience of the pre-bypass noise levels, the statistics that he had referred to showed a significantly increased proportion of people were bothered by noise levels of 55 dB(A). It was accepted that the speed of traffic would have been taken into account in the production of the noise level readings and that the number of HGV’s using the bypass when checks were made on 30 October 1998 at 8.66 per cent (and predicted to rise to 9 per cent) of the total was only marginally more than the pre-scheme readings from the High Street of 8.3 per cent.

[32]Regarding the comparables he had used, Mr. Mumford agreed that they did not all refer to Part 1 claims under the 1973 Act, but some were claims under the Land Compensation Act 1961 where loss of amenity could also be taken into account. As to those that related to the Norton Lenchwick bypass, that was a dual-carriageway trunk road, and the topography of the land was different – Cleeve House, for example being much more open and thus less protected by other properties. COUNCIL’S CASE

[33]Mr. Prendergrast is a chartered surveyor with over 15 years experience of compensation matters, and is employed as a Principal Valuer with the respondent Council. He produced reports relating to each of the subject properties and explained that the physical factors for which compensation could be paid under a Part 1 claim did not include loss of amenity, view, security or personal inconvenience. Any mitigating works that had been undertaken by the Council in construction of the road, such as the substantial earth bunds, could be taken into account in valuation terms as could any betterment that had occurred by virtue of the scheme.

[34]It was his view that property values in the upper High Street area (from which Bibsworth Lane was accessed) had increased substantially since it became a cul-de-sac, and the substantial amounts of traffic that had previously used it, now being transferred to the bypass, had made it a much more attractive and quieter area. Bibsworth Lane also now carried less traffic. Mr. Prendergrast said that, as far as the subject properties were concerned, the increased noise from the bypass more or less cancelled out the reduced noise from the High Street. In his opinion, Summer Cottage and Top Farm had always suffered from traffic noise, and they had never occupied the quiet, rural position that Mr. Mumford had described. Furthermore, turning in and out of Bibsworth Lane was now very much safer than when the High Street had been the main road through the village carrying some 10,000 vehicles per day.

[35]Mr. Prendergrast referred to the noise level readings, and confirmed by including relevant technical documentation that they had been taken in accordance with accepted procedures, and took into account such matters as the time of year and the weather – readings 9 only being taken when the wind was blowing towards the recording equipment from the noise sources.

[36]He accepted that the Council did not have readings taken from Summer Cottage, but he estimated from the readings that had been taken from the east elevation of Top Farm, that the levels would have been the same at the valuation date – approximately 53.5 dB(A). This was only just over 2 dB(A) more than the pre-scheme readings. He said it should be noted that an increase in noise of 1dB(A) at approximately 50 dB(A) is indiscernible to the human ear. A change in loudness is just noticeable at an increase of 3 dB(A). The projected increase (to the east elevation of Top Farm) to about 55 dB(A) by 2012 was a worst case scenario.

[37]The fact that the predicted 2012 levels of 55 dB(A) on Top Farm (and, by agreement, Summer Cottage) are only 4 dB(A) more than the pre-scheme levels, whereas the predicted increase at the cottages (where compensation had been agreed) further along the lane was 14 dB(A) proved, in Mr. Prendergrast’s opinion, that the subject properties had always been affected by road noise.

[38]From his knowledge of Bibsworth Lane, and the specific location of the subject properties, he thought that they had only been very marginally affected by noise from the bypass taking into account the substantial ‘betterment’ enjoyed by the reduction in noise from the High Street, and the other improvements to which he had referred. He also pointed out that the 1973 Act required the valuer to assume a hypothetical purchaser, and his or her perceptions of value. The perception of the existing occupier, who would have experienced the changes in noise levels, was not to be taken into account.

[39]Dealing with the individual valuations, Mr. Prendergrast said that, in respect of Summer cottage, the pre-scheme value had been agreed at £232,500. It was his opinion that the value at the relevant date reflecting the existence of the bypass and all factors emanating from its use was £217,500 (this figure being agreed with Mr. Mumford during the course of the hearing). This was a £15,000 reduction (6.45 per cent) but not all of that related to the physical factors that could be compensated under Part 1. The physical factors (which only related to noise – the visibility of car lights being negligible) only accounted for 3.6 per cent of value, or £8,150, this being the figure that the Council had offered. This brought the open market value at the relevant date down to £225,650. These factors amounted to about 50 per cent of the total loss of value attributable to the scheme.

[40]Top Farm was, in his opinion, worth £435,000 in the no-scheme world, and that value was agreed with Mr. Mumford during the hearing. However, Mr. Mumford’s opinion that the sale price of £390,000 represented the post-scheme value was not agreed. Mr. Prendergrast said that the offer that had been received from Mrs Eyre at £400,000 and which was turned down for whatever reason by Dr and Mrs Horton, was the figure that should apply as the total depreciated value. Again, only a percentage of that depreciation related to the physical factors and in his opinion, the value of the property after allowing for non- compensatable matters such as loss of view, was £420,000. Thus, £20,000 related to the physical aspects and that was the amount of compensation that the Council had offered. 10

[41]As Top Farm was marginally more adversely affected than Summer Cottage (because two elevations were affected) the compensation offered was a higher percentage of the unaffected value, at 4.76 per cent, against 3.6 per cent for Summer Cottage. Top Farm was also a larger house and it was accepted that the much bigger garden (which would be more affected by noise than the inside of the house) was something prospective purchasers would find important. The larger and more valuable a property, the more sensitive it would be, in valuation terms, hence the higher percentage offered on Top Farm. However, that percentage was not significantly higher because the non-compensatable loss of amenity made up a higher proportion of the overall depreciation as the visual impact of the bund was higher than at Summer Cottage.

[42]To arrive at his figures Mr. Prendergrast had considered settlements that had already been made in respect of the scheme. These were in his view the most appropriate and Mr. Mumford’s reference to settlements on other schemes should be ignored, especially as they did not include any details and some were not Part 1 claims. He said that the judgments in Cunliffe v Solihull Metropolitan Borough Council [1998] RVR 64 and Hallows v Welsh Office

[1995] 1 EGLR 191

supported that view. In Hallows the point was made that “such matters as size and type of highway, distance from the property concerned, traffic intensity, topography etc.,……that it is highly unlikely that any pattern can emerge which can be relied upon for evidence purposes”.

[43]Three of the properties in a terrace of cottages further along the lane from the subject properties, and closer to the bypass had had claims settled. Orchard Cottage, 1 Bibsworth Lane had settled at a 2.75 per cent reduction for physical factors. It was 95 metres from the centre of the bypass and had a projected 2012 noise reading of 56 dB(A). Of the overall depreciation in value, he said 46.8 per cent was due to physical factors. Rose Cottage, 2 Bibsworth Lane settled at 2.85 per cent and Spring Cottage, 4 Bibsworth Lane which was at the other end of the terrace to Orchard Cottage, and closest to the road at 75 metres, had settled at 3 per cent. The projected 2012 noise reading was 59 dB(A).

[44]Properties in Smallbrook Road had settlements ranging from 0.49 per cent to 5.25 per cent on values of around £90,000 at the relevant date, the percentages depending upon the distance from the road and the predicted noise levels (54 to 60 dB(A)). Those had been dealt with, for the claimants, by a local (Evesham) based valuer. “Bybrook”, in Leamington Road, which was also affected by vibration and artificial lighting on the nearby new roundabout had a 5.75 per cent reduction agreed against a predicted increase of 9 decibels to 68 dB(A). Mr. Prendergrast said there had been a much higher drop in value overall due to Leamington Road becoming a busier feeder into the village from the bypass, but the rest of the drop was attributable to non-compensatable matters. The drop attributable to physical factors had been calculated at 41 per cent of the total. The reduction for Arle House, also on Leamington Road was agreed at only 1.78 per cent against a predicted 7 per cent decibel increase to 64 dB(A). He had calculated the percentage of the overall drop in value applicable to physical factors at 44 per cent.

[45]Finally, Mr. Prendergrast referred to Tower View House, a property on the far side of the bypass. Mr. Mumford had said it settled at a 10 per cent reduction, but that was a property that had been much more adversely affected with a predicted 14 dB(A) noise increase. It was also a claim under the 1961 Act and the depreciation included allowances 11 for loss of view, privacy and inconvenience (changes to access). That property was only 95 metres from the centre of the bypass and affected to such a significantly greater degree that that figure must, it was submitted, form a ceiling against which the Tribunal formulated its decision.

[46]In cross-examination, Mr. Prendergrast said he thought there would have been only about a 1 to 2 dB(A) increase in noise from the old A44 on the north facing side elevation of Top Farm, over those readings that had been taken further along the lane. The increase of about 8 dB(A) from the estimated 1994 figure to the predicted 2012 level was higher than that predicted on the eastern elevation, because the north elevation would have previously been much quieter. This had been taken into account in the higher offer made to Dr and Mrs Horton.

[47]He said he thought there was no intrusion from car lights in respect of Top Farm, and any reflections on walls and ceilings at night in Summer Cottage would be negligible and of no affect to value. The bund was more visible from Top Farm, but the closer a property was to it, the more effective would be the noise reduction.

[48]Mr. Mumford said that Mr. Prendergrast’s method of calculating compensation, by apportioning the overall decrease in value between compensatable and non-compensatable factors was unusual, but Mr. Prendergrast said that in the absence of directly comparable pre- scheme and post-scheme open market transactions, that was an accepted method, and referred to an article on the subject that had been printed in the Estates Gazette in June 1986. He said the percentages applied to the various aspects were calculated in accordance with his professional judgment and experience.

[49]As to why he insisted on taking £400,000 as the value of Top Farm post-scheme, based upon an offer made in September 1999, despite its open market sale at £390,000, he said he thought that was the right figure for the reasons he had given, but accepted that there could easily have been a £10,000 increase in value between the valuation date and September 1999.

[50]Mr. Prendergrast said that although the visual and amenity benefits of the improved and quieter High Street could be taken as significant betterment, he had ignored that aspect in calculating the compensation for physical factors. DECISION

[51]The parties have all but agreed the before and after values of the subject properties (although there remained a difference between the experts of £10,000 as to the after-value of Top Farm). The real issue for my determination, therefore, is how much of the reduction in the value of each property was due to the physical factors for which compensation can be claimed. I do not need to consider the question of betterment (section 6(1) of the 1973 Act) as neither of the experts had taken any increased value into account in arriving at their conclusions. Although Mr. Prendergrast made much of the improvements to the upper High Street area in his evidence, he said quite specifically that he had not reduced his assessment of depreciation for those factors. 12

[52]Mr. Mumford’s case was that the whole of the reduction he was claiming was attributable to compensatable factors, and none of it was due to loss of amenity or view. Mr. Prendergrast had carried out a more scientific exercise, and had attributed percentages to the compensatable and non-compensatable factors. This methodology was criticised by Mr. Mumford, but in my judgment it is not for this Tribunal to lay down , as a matter of law, any particular method by which a valuer reaches his conclusions. In this regard, I refer again to Hallows where it was said (dealing with submissions on the correct approach in law to the assessment of compensation and the burden of proof): “Under section 1 of the [1973] Act a claimant must prove, as a matter of law, a depreciation in value by physical factors caused by the use of public works, but we do not agree with Mr. Pass that this must be proved in any particular way. In our view the assessment of depreciation is a matter of fact and opinion. We think it would be wrong to convert it into a question of law by laying down a particular test or method of assessment which must be followed. It may well be that the test proposed by Mr. Pass, involving a hypothetical purchaser and his perceptions of value, will be followed by many valuers when dealing with Part 1 claims. We decline to say, however, that as a matter of law it must necessarily be followed or that there is a burden of proof on claimants to show that it has been followed. Depreciation may be calculated in many ways, all of them equally good. It may be found, for example, by taking a percentage of the capital value before the public works, or by taking part of the total reduction in value caused by the works as due to the physical factors, or even as a spot figure based solely on the valuers experience of the locality. These are matters of evidence, of fact and opinion, not law”.

[53]I have no reason to argue with those findings. However, as far as Mr. Prendergrast’s approach is concerned, I do think that the breakdown of the percentages between one aspect and another was fairly arbitrary and would certainly be very difficult to analyse precisely in terms of hard evidence. Valuation is an art, and is an opinion founded on evidence. It is rare for it to be possible to be precise to the nearest £50 or so, and particularly with properties in the range of values applying in these cases, I would have thought that rounding to the nearest £250 or £500 is as close as one can reasonably get.

[54]As to the use of comparables, Mr. Mumford sought, by reference to cases, to justify his use of settlements on other schemes. Mr. Prendergrast, rightly in my view, said that little if any weight should be given to such settlements. He referred very briefly to the decision in Hallows, but I think it will be helpful to expand upon what was said.

[55]In that Lands Tribunal decision His Honour Judge Michael O’Donoghue (sitting as a member of the Tribunal) and Mr. P H Clarke FRICS said: “We also agree with Mr. Pass [counsel for the compensating authority] that his [the claimant’s expert valuer’s] comparables comprising decisions of this Tribunal and settlements in other parts of the country are irrelevant. We are reluctant, without full argument, to say that this evidence is inadmissible but we attach little weight to it. We agree with the observations on this type of evidence made by the Tribunal (J C Hill FRICS) in Fallows (page 466): 13 ‘During the hearing Mr. Ricketts referred to a number of decisions by this Tribunal and to settlements involving compensation for depreciation arising from the construction of highways. As part of his analysis of the resulting figures he expressed the award or settlement in each case as a percentage of the undepreciated capital value of the property concerned. I would comment however, that the facts in this type of case are likely to vary so much in respect of such matters as the size and type of highway, distance from the property concerned, traffic intensity, topography etc., that it is highly unlikely that any pattern can emerge which can be relied upon for evidential purposes. In the nine cases to which he referred the percentages varied considerably with no discernible pattern and I found them of no assistance’. We would add that, for this evidence to be given any weight at all, it would be necessary for the Tribunal to inspect these properties, requiring an extensive tour round the country, adding to the time and costs of these decisions”.

[56]I agree with what was said. Whilst Mr. Mumford invited me to inspect the comparables on the Evesham and Norton Lenchwick bypasses, I accept Mr. Prendergrast’s suggestion that they should be ignored, and that particularly as no details were given, and several were not Part 1 claims, such an exercise would be fruitless and of no assistance. Settlements relating to the same scheme must be the most appropriate, and will carry much more weight, although I am mindful of Mr. Mumford’s comments that the owners of the cottages further down Bibsworth Lane were represented by a valuer from outside the area, whereas he is local.

[57]Referring again to Hallows HH Judge O’Donoghue and Mr. Clarke said:

“Secondly, the expert evidence of value. We prefer the evidence of Mr. Hughes to that of Mr. Ricketts. Mr. Ricketts lacks the local knowledge and experience possessed by Mr. Hughes, which we believe to be important in these claims”

. Mr. Mumford undoubtedly has considerable local knowledge and experience, and I can understand why he expressed surprise at the level of settlement on the cottages. In my judgment they were quite seriously affected by road noise despite the fact that due to the topography, the sound bund that was much closer to them than to the subject properties, provided a considerable barrier. The actual and predicted noise levels reflect that. Certainly, the visual intrusion to the cottages (which, of course, was not compensatable), was also significant.

[58]The settlements on those cottages ranged from depreciation figures of 2.75 to 3 per cent, and the offers on the subject properties are based upon 3.6 per cent for Summer Cottage, and 4.68 per cent for Top Farm. Both Mr. Mumford and Mr. Prendergrast agreed that purchasers of higher value properties are likely to be more sensitive to noise intrusion, and I accept that to be the case. 14

[59]Looking first at Top Farm, I agree with Mr. Mumford that the effects of noise were likely to be felt more with this property than with Summer Cottage. At the time of my inspection, on a warm and sunny summer’s day with little wind, noise from the bypass in both the east and north sections of the rear gardens was discernible to a sufficient degree as to be considered, in my view, an intrusion, but not to the extent where conversation became difficult. The measured increases in noise readings on the rear (east) elevation from 51 dB(A) pre-scheme in 1994 to 53.4dB(A) in January 2000 with predicted further increases to 55 dB(A) by 2012 are helpful but do not, in my judgment, tell the whole story. Although there would undoubtedly have been noise from traffic using the old A44 along the High Street prior to the construction of the bypass (and the lower pre-scheme readings taken at the cottages further away from the High Street support this view), the properties both on Bibsworth Lane between the subject properties and the High Street, and those fronting the High Street themselves, would have formed a substantial barrier, as indeed Mr. Mumford said.

[60]There was also a speed limit, and whilst the sound of HGVs grinding slowly up the hill would undoubtedly have been noticeable, I consider that general noise levels would have been very much less evident than they are now. Mr. Mumford said that the configuration of the properties I have just mentioned now acts like a collecting saucer for noise from the bypass. This might be true to some limited extent, but there is no doubt in my mind that if it were not for the Council’s mitigating works, that effect would have been very much worse.

[61]The bypass runs into a cutting to the north east of the properties, and a substantial earth bund, which has been planted with trees, has been constructed on the south east side of the bypass, thus having the effect of providing an additional noise attenuation screen. This has served to reduce the noise impact to a considerable degree, especially to the north facing section of garden at Top Farm although, as I have said, that noise is still there and is sufficient, in my view, to be of concern to a prospective purchaser.

[62]The question is, by how much would a prospective purchaser reduce his bid to reflect that noise intrusion? I accept Mr. Prendergrast’s argument that the prospective purchaser would not normally have the benefit of knowing what noise levels and, if it were appropriate, what light pollution was pre-scheme (unless he or she were local – which both Mrs Eyre and Mr. Shaw, the eventual purchaser of Top Farm, were). The occupier will have a much better perception of any differences that have occurred, but under the provisions of the 1973 Act it is the prospective purchaser’s viewpoint that is to be considered.

[63]As to light pollution, I am of the view that the impact from car lights as they descend the hill onto the bypass, some 300 or 400 metres from the rear of the properties, would be so negligible as to have no detrimental effect on value.

[64]According to Mr. Prendergrast, the overall depreciation in value of Top Farm (from £435,000 to £400,000) was 8.75 per cent. Of this, 57 per cent was attributable to visual impact and loss of amenity for which compensation could not be claimed. On Summer Cottage the overall reduction was in value was 6.45 per cent (from £232,500 to £217,500) with 50 per cent of that reduction applying to non-compensatable matters. The closer proximity of the bund to Top Farm, and the fact that it had a more serious impact on the 15 previously open rural views was the reason for this difference. I accept that reasoning, but as I have said, I do think it is difficult to be precise. It follows that I reject Mr. Mumford’s contention that there was no loss of amenity, and that the whole of the reduction in value was attributable to noise and artificial lighting.

[65]In my judgment, the visual impact of the scheme on both properties is less severe than Mr. Prendergrast makes out. The Council’s mitigation works, in my view, have been extremely effective. An area of pre-planting that was carried out prior to the commencement of the scheme has matured well, and I accept the Council’s submission that, even by the valuation date, an effective screen was formed. As I have said, the bypass is in a cutting where it passes the properties, and the formation of the high bund (which has also been planted) has served to virtually eliminate the visual impact. Whereas I accept that, pre- scheme, there would have been no visual intrusion at all, that intrusion is even now extremely limited. The bund and the post and rail perimiter fencing are visible from Top Farm, and the tops of high vehicles can be seen, but because the road is so well hidden, I would not put the visual, or non-compensatable element at more than one-third (33 per cent) of the diminution in value.

[66]As to Summer Cottage, the visual impact is undoubtedly less, as the bund is a little further away. The road can just be seen where it descends Fish Hill, but that is far enough away, in my opinion, to have little visual impact. I would put the diminution caused by non- compensatable factors at no more than 25 per cent.

[67]There can be no doubt that the visual impact to the cottages further down the lane is significantly greater. The percentage of the diminution in value attributable to loss of visual amenity, and thus non-compensatable, in the settlement on Orchard Cottage was, according to Mr. Prendergrast, about 54 per cent. This figure supports the non-compensatable elements on Top Farm at 33 per cent and Summer Cottage at 25 per cent, as the visual impact, as I have said, becomes progressively less towards the High Street.

[68]The only element of pre and post-scheme value that was not agreed by the parties was the post scheme value of Top Farm. In my judgment, the achieved sale price at £390,000 is the best evidence of value. That sale was agreed in October 1999 some 5 months after the valuation date. Although Mr. Mumford said that he had not allowed for any increase in values over that period, there is no doubt in my mind that there was a rising market. Mr. Prendergrast’s suggestion that if Dr and Mrs Horton had ‘hung on’ they would have achieved £400,000 probably has some merit, but that is pure speculation. The fact is, a sale was agreed, and eventually completed some time after the valuation date. It would be illogical for me to accept a value higher than that figure as appropriate at May 1999, and I therefore adopt Mr. Mumford’s figure of £390,000.

[69]The overall depreciation in value of Top Farm was therefore £45,000 (£435,000 - £390,000) of which I have determined that one third was for visual impact and loss of amenity. This leaves £30,000 as the diminution in value that was attributable to matters for which compensation is payable under Part 1 of the 1973 Act, representing depreciation for physical factors of 6.9 per cent. Whilst this is significantly higher, in percentage terms, than the settlements on the cottages, it reflects the accepted view that higher value properties are 16 likely to be more adversely affected. It is also closer to the settled percentages on the Leamington Road properties that were, in my view, in much less rural positions which would have always had noise intrusion. I therefore determine that the Council shall pay compensation of £30,000 to Dr and Mrs Horton, together with surveyor’s fees as provided for in section 3(5) of the 1973 Act.

[70]As to Summer Cottage, the overall diminution in value was £15,000 (£232,500 - £217,500), and with compensation for Part 1 factors at 75 per cent of that, I determine that the compensation the Council shall pay to Mr. Griffin shall be £11,250, to which surveyors fees shall be added. This represents depreciation for physical factors of 4.83 per cent which, in comparison with the Top Farm percentage, reflects the fact that this property is less affected particularly in terms of loss of enjoyment of garden areas.

[71]Finally, as to Mr. Mumford’s reference to Fallows (para 25 above), the point was not taken by the Council. However, for the sake of completeness, I would say that I agree with Mr. Hill and therefore, if the point had been taken, I would have found for the claimant.

[72]This decision determines the substantive issues in these references. The Council said it wished to reserve the right to make submissions on costs on the basis of the offers that it had made to the claimants (dependent upon my awards), despite the fact that the hearing was held under the Simplified Procedure. My award in respect of each of the reference properties was higher than the amounts offered by the Council, and there being no exceptional circumstances to warrant departing from the normal procedure adopted in Rule 28 cases, I make no award as to costs. Rights of appeal under section 3(4) of the Lands Tribunal Act 1949 and Part 52 of the Civil Procedure Rules will come into operation from the date of this decision. DATED: 15 October 2001 (Signed) P R Francis FRICS 17