THE PERSONAL REPRESENTATIVES OF JACK CLINTON PROCTOR DECEASED; THE PERSONAL REPRESENTATIVES OF JACK WILLIAM PROCTOR DECEASED v HIGHWAYS AGENCY ACQ/151/2002

UPPER TRIBUNAL
LANDS CHAMBER
ACQ/151/2002Case No ACQ/151/2002
Between
THE PERSONAL REPRESENTATIVES OF JACK CLINTON PROCTOR DECEASED; THE PERSONAL REPRESENTATIVES OF JACK WILLIAM PROCTOR DECEASEDApplicantHIGHWAYS AGENCYRespondent
Before
N J Rose FRICSMichael Humphries QC (instructed by Hawley and Rodgers, solicitors of Loughborough) for ClaimantGuy Adams (instructed by the Treasury Solicitor) for Acquiring AuthorityVenue Procession House, 110 New Bridge Street, London EC4V 6JLDate 22 November 2005Hearing 5-9 and 30 September 2005Property: Caravan Park,, boat moorings and other leisure activities, together with various rights over land,, Proctor’s Pleasure Park,, Barrow-upon-SoarCatchwords: COMPENSATION – compulsory purchase – caravan park – bisected by bypass – whether deemed permission for caravan site granted as result of 1960 application for site licence – whether planning consent would have been granted for caravan site use south of bypass line in the no-scheme world – extent of diminution in value of retained undeveloped pitches, warden’s bungalow and amenity land – whether value attributable to existing income where site suitable for redevelopment – whether value affected by possible ransom over access and services passing across canal – compensation awarded £500,325
[1]These are two references, consolidated by order of the Tribunal, to determine the compensation payable by the Highways Agency (“the acquiring authority”) for the freehold interest in 6.03 acres and the leasehold interest in 1.02 acres of land, being part of Proctor’s Pleasure Park, Barrow-upon-Soar, Leicestershire. That land was compulsorily acquired under the (A6) London–Inverness Trunk Road (Quorn-Mountsorrel Bypass) Compulsory Purchase Order (EM No.3) 1989 (“the CPO”), which the Secretaries of State for the Environment and Transport decided to make on 30 June 1989, following a public inquiry into the draft CPO in May 1988, and which came into operation on 18 August 1989. Notices to treat were served on 17 November 1989 and possession was taken on 22 January 1990, which is the agreed valuation date. The acquiring authority did not raise a limitation objection to the matter being referred to the Tribunal, despite the fact that the reference was made nearly 12 years after the date of possession. Most unhappily, both claimants have died since the date of the reference. Mr Jack Clinton Proctor died on 21 March 2003 and his son, Mr Jack William Proctor, died on 19 September 2005. In consequence, the personal representatives of both gentlemen are now the claimants in this reference.[2]At the valuation date the claimants owned 108 acres of freehold land and 13.163 acres of leasehold land from which they conducted their caravan site business. The bypass in the area of that land is elevated on embankment and on a bridge over the river Soar. It cut a wide swathe through the centre of the land, severing the northern part from the southern part save for an underpass below the trunk road and a bridge over the river, providing the claimants with access between the two parts of the site. It is common ground that the bypass is visually intrusive and noisy.[3]Compensation is claimed for the value of the freehold and leasehold interests in the land taken, injurious affection to the retained land, and disturbance. The parties’ valuations changed during the course of the hearing, but at the close the total claimed was £953,068, compared with £288,192 suggested by the acquiring authority.[4]Mr Michael Humphries QC appeared for the claimants. He called one expert witness, Mr J D Marshall, MA, MRICS, FAAV, a director of Humberts Leisure Limited, based at his firm’s Brighton office. He called, as a witness of fact, Mrs Lillian Batts, who first started going to Proctor’s Pleasure Park in about 1951 and who lived in a caravan on the park from her marriage in 1956 until 1963 or 1964. Mr Humphries also produced two witness statements from Mr J W Proctor, who was too unwell to give evidence in person at the hearing. The acquiring authority did not object to the admission of Mr Proctor’s statements. Counsel for the acquiring authority, Mr Guy Adams, did not call any factual witnesses. He called expert evidence from Mr D R Gale-Hasleham, FRICS, IRRV, a partner in Charles F Jones and Son LLP, chartered surveyors of Chester. On 22 September 2005, in company with the two experts, I inspected Proctor’s Pleasure Park and two other caravan sites which had been referred to in evidence, namely Blisworth Park, Blisworth, Northamptonshire and Riverside Caravan Park, Knaresborough, North Yorkshire. 3 Facts[5]The experts produced a statement of agreed facts. In the light of that statement, the evidence and my inspection I find the following facts. Proctor’s Pleasure Park is situated in the Soar valley on the edge of the village of Barrow-upon-Soar, approximately 4.3 miles south of Loughborough. The freehold section includes the half-bed of the river Soar (approximately 2.5 acres) and about 28 acres of lake.[6]The park is bounded to the south and west by the river, along which there are boat moorings, and to the north by the Grand Union Canal, Leicester cut. At the southern end of the park is an area of lake, formerly gravel workings, with mown water meadows. The principal vehicular access to the park is from the north along Proctor’s Park Road and over a 3.7m wide hump back bridge across the canal. The park is served by a central blacktop service road, which runs north-south from the bridge to the lake. Spur roads off this main access are finished in scalpings or blacktop. Services to the park are via the bridge, which carries a 6 inch diameter water main and a 4 inch diameter sewage pumping main. Adjacent to the bridge the canal is crossed by a now redundant 1 inch water main conduited with a steel pipe. The sewage pumping main connects into the Severn Trent Water sewage pumping station immediately to the north of the bridge. There is an existing three phase electricity supply to the site crossing the canal west of the bridge, and a second three phase supply feeding into a small building on the north side of the bypass. There is an electricity sub- station to the north of the bridge and a pole mounted transformer in an adjoining field to the south-east. There is a gas governor station adjacent to Proctor’s Park Road, but no supply into the property. The park has been bisected west/east by the bypass. On the northern side of the bypass the property contains a large number of now redundant caravans. Closer to the bridge there has been some recent development with holiday static units. Within the park and close to the bypass is an area which was laid out in the 1950s for 50 residential caravan units. These are currently unoccupied and in poor order. Throughout the park there are a number of toilet blocks, generally in poor condition.[7]Immediately to the north of the bypass is the park owner’s three bedroom bungalow. Close to this is a recreational building which includes a site bar/lounge with adjoining games room. This building is in poor decorative order. To the south of the bypass on the east of the access road is a field which currently has a number of parked touring and static caravans, some of which in the woodland area close to the boundary appear to be in residential use. The fields around the southern and eastern end of the lake are maintained as mown meadow and used for touring caravans and camping. South of the river is an agricultural field owned by the claimants, extending to about 10 acres. It is agreed that this is not material to the valuation of the claimants’ business or adversely affected by the road scheme and should therefore be disregarded.[8]Mr J C Proctor purchased his first field (OS290) in about 1947. At the time the land had been used by campers since before the Second World War and also for boat repairs and mooring pleasure boats on the river. The remainder of the land in what is now Proctor’s Pleasure Park belonged to the Quorn Sand and Gravel Company who extracted sand and gravel from areas south of the site of the present bypass in areas which now form the lake in the park. Leisure use by the Proctor family started in about 1948. On 3 March 1948 4 planning consent was sought to use OS290 as a pleasure ground with a miniature railway and children’s ride, children’s wheel, paddling pool and sandpit. This was approved on 2 April 1948 subject, among others, to a condition that “no action shall be taken which would tend to convert this use into that of a fairground or adult amusement park.”[9]In 1953 Mr Proctor applied for planning consent to stand 25 caravans on OS290. Consent was granted on 10 July 1953 for a period expiring on 20 September 1956 and subject among others to a condition that no caravans be parked on the site between October and March in each year. As the business grew Mr Proctor rented OS291, 309, 293 and 293A from the Quorn Sand and Gravel Company. 291 and 293A immediately adjoin the eastern boundary of OS290. OS 293 and 309 are in turn immediately east of 293A and 291 respectively. On 9 November 1956, planning consent was granted for the standing of 50 residential caravans on OS 290 for a period expiring on 25 December 1959.[10]In 1955 the Quorn Sand and Gravel Company wound down their operations. They offered Mr Proctor the opportunity to purchase their land and he did so. In 1956 planning permission was sought for the Quorn Sand and Gravel land. On 13 April 1956 permission was granted for “the use of disused gravel workings [within OS308B] as a boating lake and widening of existing access off Bridge Street, Barrow-upon-Soar, Leicestershire”. This land was open and unfenced. Mr J W Proctor used to help his father on the park during the 1950s. In May 1957 his father placed advertisements in the press encouraging customers to spend their caravanning holidays at the park. In 1959 Mr J C Proctor rented OS387, lying to the west of the lake and extending to 13.163 acres, from Leicestershire County Council under a tenancy from year to year. In about 1960 Mr J W Proctor joined his father in partnership.[11]In 1960 Mr J C Proctor instructed a Mr David Tucker to apply to Barrow Rural District Council for a caravan site licence for approximately 27 acres of the park. The application referred to the then OS enclosure numbers Part 290, 291, 308 and 309, comprising approximately 27 acres. It is likely that the total area applied for was made up as follows: OS290 7.615 acres OS308 10.962 pt.OS308B 2.449 13.411 OS291/291A 3.594 OS309 3.005 27.625 acres[12]Mr Tucker’s application was dated 26 October 1960. On 26 June 1961 the district council issued a site licence permitting the use of the pleasure park as a caravan site, subject 5 among others to a condition that the number of caravans on the site at any time shall not exceed 50.[13]In 1974 the responsibilities of Barrow Rural District Council were transferred to the newly created Charnwood Borough Council. In October 1979 the Proctors received a letter from Charnwood Borough Council planning department, asking them to provide details of what they were doing on the site as part of the preparations for the Quorn District Plan. The plan was published in June 1980 and the possibility of a bypass across the site then first became public knowledge. By 1981 it was clear that the preferred route for the bypass was the eastern route which went through the middle of Proctors Pleasure Park. From that time the park began to be blighted by the prospect of the road scheme. During the 1980s the Proctors had a number of meetings with officials of Charnwood Borough Council. In October 1987 they applied for planning permission to retain the use of caravans on various of their fields north of the proposed new road. Planning permission was not granted at that time, because the Proctors were not prepared to enter into a section 52 agreement, excluding all caravan use to the south-west of the new road as required by the planning authority.[14]The Proctors objected to the proposed CPO and attended the public inquiry. In early February 1989 newspapers reported that the route was to cross the park. This publicity, which followed that surrounding the CPO inquiry, deterred caravanners from using the site.[15]The CPO came into operation on 18 August 1989 and, some ten weeks later, on 25 October 1989, the Proctors entered into a section 52 agreement. The following day Charnwood Borough Council granted planning permission in respect of the 1987 planning application. After the section 52 agreement was entered into the Proctors took no steps to implement it or comply with the conditions of the planning permission. They continued to station caravans on areas covered by the section 52 agreement and did not undertake any of the landscaping works required by the planning permission. They removed caravans to make way for the roadworks, so that their customers had satisfactory access to their caravans. Subsequently caravans have returned to areas previously used for that purpose.[16]During the 30 years or so following his acquisition of the Quorn Sand and Gravel Company’s land, Mr J C Proctor gradually transferred parts of the land to his son and that land is now registered in Mr J W Proctor’s sole name at H M Land Registry under Title No. LT3206767. The remainder of the land was transferred into the joint names of Mr J W Proctor and his father and this is registered with Title No. LT316863. The application was made to the Land Registry because the solicitors acting for the Proctors had lost the title deeds. Steps were taken to prepare statutory declarations which were sworn on 2 June 1999 and outlined the circumstances of the acquisition. Based on the evidence presented to the Land Registry, possessory title was granted. In his opening skeleton argument Mr Adams stated that the acquiring authority did not admit the ownership of the land at the date of entry. Towards the end of the hearing he said that it was now agreed that the personal representatives of Mr J C Proctor and Mr J W Proctor were entitled to compensation, although the extent of their respective ownerships at the valuation date was not agreed. The latter question is not a matter which falls within the Tribunal’s jurisdiction. 6[17]The main services for water and sewage to the park are provided by means of pipes which cross the canal via the road bridge. The two pipes run within the bridge structure. They were installed by the Proctors during the early 1970s when they carried out work to strengthen the bridge, which they have maintained ever since.[18]In January 1990 there were three aspects to the Proctors’ caravan business. The rental business was operated by father and son in partnership. The clubhouse was operated solely by Mr J C Proctor and the sale of caravans was conducted through Proctor Leisure Sales (Barrow-on-Soar) Ltd. The shares in that company were held as to two-thirds by Mr J W Proctor and one-third by his father. Issues[19]There are two planning issues and a number of detailed valuation issues between the parties. On planning the claimants submit, and the acquiring authority denies, that the area of approximately 27 acres which was the subject of the 1960 licence application has deemed unconditional permission for caravan site use. Assuming the claimants are wrong on that point, the second planning issue is whether the planning permission which would have been granted for caravan use of the site in the no-scheme world would have extended to an area of 2.8 acres of land south of the line of the bypass; it is agreed that consent would have been granted along that line and to the north of it. There are a number of detailed valuation issues to which I shall refer, but the principal one is the extent of the diminution in the value of the claimants’ retained land which has resulted from the acquisition, by way of injurious affection. The amount of compensation payable for disturbance has been agreed. Deemed planning permission[20]I consider firstly the claimants’ submission that the area of approximately 27 acres, which formed the subject of the licence application dated 26 October 1960, was at the valuation date the subject of a deemed unconditional permission for the use of the land as a caravan site under section 17(3) of the Caravan Sites and Control of Development Act, 1960 (“the 1960 Act”).[21]Section 17 of the 1960 Act provides as follows:(1) This section shall apply to any application for a site licence in respect of an existing site which is made within two months of the commencement of this Act, or within such longer period as the local authority to whom the application is made may, having regard to the special circumstances of the case, allow, other than an application in respect of a site which has at the date of the application the benefit of a permission for the use of the land as a caravan site granted under Part III of the Act of 1947 otherwise than by a development order. 7(2) On the making of an application to which this section applies, the local authority to whom the application is made shall take any steps required for transmitting the application to the local planning authority and the local planning authority may grant permission for the use of the existing site as a caravan site under Part III of the Act of 1947 as if the application for the site licence were an application for such permission (and as if compliance with sections thirty-six and thirty-seven of the Town and Country Planning Act, 1959 (which impose requirements to be complied with before certain applications for planning permission are entertained), were not required).(3) Unless – (a) before the expiration of a period of six months beginning with the date on which the application is made permission has been granted in pursuance of the last foregoing subsection for the use of the land to which the application relates as a caravan site, or (b) before the expiration of the said period, and either before or after the commencement of this Act, the owner and occupier (within the meaning of the Act of 1947) of the land have been served with an enforcement notice under section twenty-three of that Act requiring the use of the land as a caravan site to be discontinued or with notice of an order submitted to the Minister under section twenty-six of that Act and requiring that use to be discontinued, permission for the use of the land as a caravan site shall be deemed for all purposes to have been granted at the end of that period under the said Part III of the Act of 1947 without any condition or limitation.”[22]The expression “existing site” is defined by section 13(a) as meaning, inter alia, “land which is in use as a caravan site at the commencement of the Act [29 August 1960] and which was also used as a caravan site on the ninth day of March, nineteen hundred and sixty”.[23]The claimants’ case on planning is this. At the time the 1960 licence application was made on behalf of Mr J C Proctor, the planning consent for 50 residential caravans granted on 9 November 1956 had expired. The application therefore came within the provisions of section 17(1), since the site was an existing caravan site not covered by permission granted on an application under Part III of the Town and Country Planning Act, 1947. Section 17 applies where an application for a site licence in respect of an existing site is made within two months of the commencement of the Act (29 August 1960) and the application dated 26 October 1960 was so made.[24]On the face of the 1960 Act application it was made clear that the acreage of the site was 27 acres, several fields were identified by OS number and these areas were also identified on the attached plan. It would have been plain, therefore, to any reasonable authority receiving this document that the application did not relate to a site with planning permission granted under Part III of the 1947 Act but to an “existing site” to which section 17 8 applied. Section 17(3) imposes very strict requirements on a local authority. In the present case the local authority failed to take any of the required steps within the six month period and a deemed planning permission was therefore granted by virtue of section 17(3).[25]Mr Humphries accepted that the mere fact that the 1960 Act application was made in relation to a wide area did not necessarily indicate that the area was an “existing site” for the purposes of the Act. The term “caravan site” is defined by section 1(4) of the 1960 Act as meaning “land on which a caravan is stationed for the purposes of human habitation and land which is used in conjunction with land on which a caravan is so stationed.” It was the claimants’ case that fields OS290, 291, 291A, 308, 308B and 309 were at the relevant dates all areas on which caravans were stationed or land used in conjunction with such land as a matter of fact and degree.[26]Mr Humphries submitted that, in the period leading up to and including 1960 there was very extensive caravan usage of the site. At this time the land was being used as a commercial caravan site on which there were residential caravans, holiday caravans and touring caravans. Mr Humphries relied on the following evidence showing this very extensive use of the site. The 1953 planning permission granted consent until 20 September 1956 for 25 caravans on OS290. These were holiday caravans. In 1956 planning permission was granted for 50 residential caravans on OS290 for a period expiring on 25 December 1959. In May 1957 Mr J C Proctor placed advertisements in the press encouraging people to spend their caravanning holidays at the park. In August 1958 he advertised the sale of a selection of new and second-hand holiday and residential caravans from the site. Mr Proctor’s witness statement indicated an extensive use of the 1960 application site for caravans. He said that in about 1960 there was a range of caravanners on the park, some of whom lived there, others had their holiday caravans there all the year round and others came at weekends and during holiday times with their touring caravans. He and his father had provided a towing service for caravans to the park and a putting green, train, paddling pool and sandpit for the caravanners. The site of approximately 27 acres for which licence application was made in 1960 comprised the main areas which had been used from the 1950s for the stationing of caravans.[27]Mrs Batts’s witness statement also confirmed extensive use of the site for caravans during the late 1950s and 1960. She said that from the late 1950s OS291, 308, 308B and 309 (“the yellow land”) were being used as a caravan park. There were no fences separating the areas on this park. Some people who liked their privacy took their caravans and tents further than the yellow area, round the fields between the lake and the river (OS387 and the western part of 308B). Others used OS293 and 293A. There were always people living on the site and they had their caravans in an area to the east of the clubhouse in OS290. Then there were some other permanently sited caravans parked in OS291 and 309. There were also permanently sited caravans in OS308 around the buildings and areas where a concrete roadway began to lead down to the lake. Other people brought touring caravans to the site and used the same areas, more so at weekends. The park was busy at peak holiday times when there was a good spread of caravans across the yellow land. People parked their caravans by the lake and river for fishing and the pleasant view. Some of the holiday 9 caravanners came regularly at weekends and for a week’s holiday and Mrs Batts made friends with some of them. They were never prevented from using the site, although it was obviously much quieter in the winter and early spring.[28]On OS290 there was a putting green, and a train ran along the side of the field. The younger children played in the sandpit. Occasionally in the evening there was dancing near the clubhouse. This area was used by the caravanners for recreation. In oral evidence Mrs Batts explained that, when she moved on to the part of the site laid out for residential caravans in 1958, there were some 20 residential caravans in that area and a further 20 residential caravans elsewhere whose owners chose not to move on to the area granted planning permission in 1956.[29]Mr Humphries submitted that this evidence demonstrated that the yellow land, together with OS290, was an “existing site” within the meaning of section 13 and that this area was, therefore, granted deemed planning permission for caravan use at the expiry of six months following the caravan site licence application. The effect of section 17(3) was that the local authority should have granted the Proctors the site licence (section 3(5) of the 1960 Act). In the event, the local authority did not grant a site licence in relation to all the area which had deemed planning permission, as they were required to do by section 3(5). The only licence granted was dated 26 June 1961 and limited the number of caravans on the site at any time to[50]Section 6 of the 1960 Act makes it clear, however, that where the local authority is required to issue a site licence under section 3, but fails to do so within the required period, no offence under section 1 of the Act is committed in respect of the land by the person who made the licence application at any time before a licence is issued in pursuance of the application.[30]The acquiring authority did not adduce any factual evidence on the subject of the deemed planning permission. On their behalf, however, Mr Adams submitted that the claimants had failed to prove that, in 1960, OS290 was part of an existing site and that the whole of OS291, 291A, 309 and 308/308B were an existing site.[31]Having carefully considered the evidence I have concluded that the site of approximately 27 acres which formed the subject of the licence application under the 1960 Act was not an existing site in 1960. The reasons for this conclusion are as follows. Firstly, the application itself contained material which suggested that Mr J C Proctor was not claiming at that time that there was any existing site apart from the residential site. In answer to question 10, which asked whether planning permission for the site had been obtained, reference was made to the 1956 planning permission for 50 residential caravans on OS290. Questions 11 and 12 were stated as applying to “caravan sites already in use on or before 9 March 1960 without planning permission from the local planning authority”.[32]Both questions were struck out by Mr Adams. Furthermore, the plan accompanying the application showed OS291 as car parking, but there was no evidence to suggest that such use was actually being made of OS291 in 1960. In my judgment the evidence provided by the 10 application itself suggests that it did not relate to a large existing site but was intended to be an outline proposal to turn the whole area into a caravan site.[33]Secondly, although Mr J W Proctor’s witness statement, dated 22 July 2005, stated that the 27 acres were the main areas that he and his father had used from the 1950s for the stationing of caravans, he was under the disadvantage of being required to cast his memory back 45 years or more. Mr Marshall suggested that the Proctors believed that they had a deemed consent and “saw no need to regularise the position”, as requested by the local authority from 1980 onwards, but they were subsequently forced to enter into the section 52 agreement when the CPO was made in August 1989. The evidence given on this point in 2005 by Mr Proctor and Mr Marshall is, in my view, to be considered in the light of the fact that, during the negotiations with the local planning authority which took place from June 1980 onwards, the Proctors at no time sought to put forward any evidence to establish the existence or extent of any existing site in 1960, and indeed suggested at that time that the history of the site was unclear. The position was encapsulated in a letter dated 22 July 1987 from the Borough Secretary of Charnwood Borough Council to Mr J C Proctor’s solicitors, McKinnell Erwin and Mitchell. That letter was written subsequent to an earlier letter which bore the date 14 April 1987 and which asked for detailed information regarding the use of the 27 acres for caravans as at the date of the 1960 application.[34]In his letter of 22 July 1987 the Borough Secretary said:
“I note your reply of 8 July makes not one single reference to my open letter to you of 17 May 1987 (erroneously dated 14 April 1987), and it could be assumed from that, without wishing to embark on a further round of allegations and counter allegations, that your client, far from wishing to assist in finding a solution to this matter, is still not prepared to shed one jot of information on the background. It has been his absence of any assistance in this regard that has led, to a large extent, to the time taken in resolving this whole problem. The council has had to painstakingly glean every scrap of background history in relation to the site. I find it difficult to agree with your comment that both parties must accept that the history of the site is unclear. This might be the case had your client been a recent purchaser but as you know he has been in occupation for the whole of the relevant period and should have a relatively clear recollection of the history of the site.”
[35]I heard oral evidence on the history of the caravans on the site from Mrs Batts. Mrs Batts was a witness of transparent honesty. Like Mr Proctor, however, she was giving evidence as to what had been the position forty or more years earlier and, as she fairly accepted, she could not state the number of caravans which were on the park at any time with accuracy, because she had had no reason to count them at the time. In her written statement Mrs Batts said that from the late 1950s the yellow land was being used as a caravan park. I have no doubt that there were, at various times and at various locations, caravans on the yellow land in 1960. I intend no disrespect to Mrs Batts, however, when I say that her evidence, taken with the photographs which she and Mr Proctor produced, is insufficient to enable me to conclude that there was an existing caravan use over the whole of the yellow land at the relevant time. 11[36]In addition to the yellow land, the 27 odd acres covered by the 1960s application included OS290, which the claimants suggest was being used “in conjunction with” the remaining areas on which caravans were stationed, as that term is used in section 1(4) of the 1960 Act. From 1948 onwards this field had been used as a pleasure park. As prosperity increased in the post-war period and holidaymakers and day-trippers began to travel further afield, the use as a pleasure ground declined and the use for caravans increased to a point where, by the mid 1960s, the attractions on OS290 had been removed altogether and replaced by static caravans.[37]In his judgment in the Court of Appeal in R v Axbridge Rural District Council, ex parte Wormald [1964] 1 WLR 442 at p 445 Lord Denning MR considered the applicant’s submission that the recreational use of the 2½ acres upon which a single caravan was stationed meant that the whole area was within the caravan site. He said:
“I cannot accept this contention. The evidence shows that this 2½ acres is rough waste land consisting of sand dunes on which bushes grow. It may be that children and grown-ups run about on it occasionally and go across it to and from the beach nearby. But it seems to me that that is not such a user as to make it a part of the caravan site. In order that land should be ‘used in conjunction with land on which a caravan is so stationed’ it must be used immediately and directly in conjunction with it. For instance, land for a latrine or on which a motor-car stands, or land laid out as a playground, would be part of the site; but not waste land over which children or adults may run from time to time. I agree with the Divisional Court that the ‘existing site’ here is the actual land on which the caravan stands and a very small area surrounding it, say, 20 feet all round, such as the district council in their licence prescribed. So far as the ‘deeming provision’ in section 17(3) of the Act of 1960 is concerned I see no reason for saying that anything wrong has been done by the district council.”
Harman LJ was of the same opinion.[38]In James v Minister of Housing and Local Government [1968] AC 409 in the House of Lords Lord Morris of Borth-y-Gest said:
“An existing site is defined as land which at certain dates was in use as a caravan site. That brings in the definition (see s.1(4)) of a caravan site. A caravan site means land on which a caravan is stationed for the purposes of human habitation and land which is used in conjunction with land on which a caravan is stationed. These words were considered in the case of Reg v Axbridge Rural District Council, Ex parte Wormald. I see no reason to doubt what was said by Lord Denning as to their meaning.”
A similar opinion was expressed in James by Lord Upjohn: “this subsection has been construed by Lord Denning in Reg v Axbridge Rural District Council in this sense: “In order that land should be ‘used in conjunction with land on which a caravan is so stationed’ it must be used immediately and directly in conjunction with it,” and he then gives some homely examples such as land for a latrine or on which a motor-car stands or land laid out as a playground. I entirely agree with that construction.” 12[39]In my judgment, the evidence indicates that the amusement park was still fully operational in 1960, with the attractions remaining on OS290 and the remainder of the claimants’ land apart from the residential site being used as an extension of the pleasure park with some caravans stationed on it. In reaching this conclusion I bear in mind that the Quorn Sand and Gravel land was not purchased until June 1956 and advertisements for touring caravans were first placed in 1957, so that there had only been three complete caravan seasons by 9 March 1960. Moreover, there were no identifiable pitches or dedicated facilities for caravanners other than on the residential site. In these circumstances I consider that in 1960 OS290 was still being used as a pleasure ground and not immediately and directly in conjunction with land on which caravans were stationed. Planning permission in the no-scheme world[40]By the end of the hearing, the experts had effectively agreed the details of the planning permission which would have been granted at the valuation date in the no-scheme world, with one exception. They agreed that consent would have been forthcoming for 38 holiday caravan pitches on the land taken and for 50 residential pitches and 30 touring pitches on the retained land. There was also virtual agreement on the number of holiday pitches which would have been approved on the retained land north of the bypass. Mr Gale-Hasleham’s figure was 319 and so was Mr Marshall’s, although Mr Marshall would reduce this number by one if the bungalow were assumed to be sold off separately, resulting in the need to provide alternative warden’s accommodation. The difference between the experts relates to the number of holiday pitches which would have been permitted on the land to the south of the bypass. Mr Marshall was consistently of the view that permission would have been granted for caravan park development on a site very similar to that actually approved in October 1989 save that, in the no-scheme world, the southern limit of the site would not have been fixed by the line of the proposed road. In the valuation contained in his expert report dated 6 July 2005, Mr Gale-Hasleham assumed planning permission would be granted for 48 holiday pitches on an area of 2.4 acres of land south of the bypass. On the first day of the hearing, however, after a short adjournment had been ordered for the experts to endeavour to agree the factual position as to land areas, Mr Gale-Hasleham produced a new valuation based on the assumption that there would have been no planning permission for caravan use south of the bypass in the no-scheme world.[41]In the course of cross-examination Mr Gale-Hasleham said that, on re-consideration, he had formed the view that there would have been planning objections to caravans being stationed on land south of the bypass route because of its proximity to a site of special scientific interest (“SSSI”) and because the land fell within the Soar flood plain. In my judgment Mr Gale-Hasleham’s change of view on this matter is devoid of merit, for three reasons. Firstly, his suggested southern boundary of the site which would have been acceptable to the planners is entirely arbitrary, since by definition the line of the bypass would not have existed in the no-scheme world. Secondly, it is clear that during the 1980s the borough council was concerned that, although the factual position was uncertain, there was at least a possibility that the land the subject of the 1960 licence application had the benefit of a deemed planning permission for caravans. The 1960 application included 1.81 acres south and west of the cutting connecting the river to the lake and which was within the SSSI. It also included 0.81 acres of SSSI land west of the access track which lies to the east 13 of the lake. In Mr Marshall’s scenario, therefore, the Proctors would have been offering to exclude 2.62 acres of SSSI land which arguably had deemed planning consent, in exchange for planning permission on a similar area of land which was all outside the SSSI. Such an outcome is likely to have been attractive to the planners. Thirdly, in relation to Mr Gale- Hasleham’s reference to the flood plain, this is nothing to the point, since most of the Soar valley, including the land which Mr Gale-Hasleham accepts would have been granted planning consent, is also within the flood plain.[42]In the circumstances I accept Mr Marshall’s opinion that in the no-scheme world permission would have been granted for 56 holiday pitches on land to the south of the line of the bypass. Diminution in pitch values[43]The experts agreed that the undeveloped site values per pitch with permission for residential, holiday static and touring caravan use were £4,100, £1,600 and £1,000 respectively. Mr Gale-Hasleham considered that the effect of the compulsory acquisition had been to reduce each of these values by 25%. This opinion was arrived at on the basis of his general experience of marketing and valuing caravan parks over 30 years and he produced no comparable evidence to support it.[44]Mr Marshall has had nearly 25 years experience of compulsory purchase valuations. Although he has in that time been concerned with a variety of different types of property, he has considerable experience of caravan and park home sites. He considered the most important factor indicating the extent of the depreciation in pitch values was that, since the date of entry, all holiday static occupiers save three had left the areas closest to the scheme. There had been no new lettings to holiday static occupiers within 150 metres of the bypass. The road noise and significant loss of amenity at the southern end of the park had had a detrimental impact upon the attractiveness of the site to holidaymakers. Mr Marshall did not consider that holiday caravans would have been saleable at the valuation date within 50 metres of the bypass. He considered that, further away, the sale price of holiday caravans would have been adversely affected by the road and he produced a plan upon which he had marked a contoured assessment of the reduction in value of caravan units. He also produced the following table, showing how these contours translated into numbers of units and reductions in caravan sale prices: Holiday static caravans Residential caravans £30,000 sale price £40,000 sale price Distance from road metres % depreciation Depreciation Number Depreciation Number 50 25% £7,500 33 £10,000 0 14 100 20% £6,000 12 £8,000 20 150 15% £4,500 32 £6,000 30 200 10% £3,000 85 £4,000 250 5% £1,500 62 £2,000 0% 95[45]Bearing in mind these reductions in caravan sale prices and the levels of the various pitch values, Mr Marshall considered that there had been a total loss of value within 150 metres of the bypass, an average 50% loss between 150 metres and 250 metres and a nominal 10% loss for the remainder. This produced the following depreciation in pitch values: Pitch Numbers Depreciation Holiday Residentia l Location 100% 77 50 Within 150 m north of bypass 50% 48 South of bypass 50% 147 150m to 250m north of bypass 10% 95 Over 250m north of bypass[46]Mr Marshall assumed a total loss in value of the touring pitches. He considered that the designated area in the 1989 planning consent was wholly unsuitable for touring caravans. In recognition of the fact that land with sterilised pitch values would still have had a positive value, Mr Marshall applied a rate of £4,000 per acre to those areas, since they could be used in conjunction with the remainder of the caravan park. In support of his valuations, he produced details of five other caravans sites, in respect of which there was evidence of sale prices achieved on the open market or compensation agreed on compulsory acquisition.[47]I deal firstly with Mr Marshall’s valuation approach, to which there are two stages. The first estimates the percentage reduction in value of caravans at varying distances from the road and the second compares those reductions with the unblighted pitch values in order to arrive at the consequential reductions in undeveloped pitch value. This approach is not supported by any of the comparable transactions upon which Mr Marshall relied. The only comparable in which there is evidence that use was made of contours is Riverside Caravan Park, Knaresborough. In that case, the compensation calculation was more straightforward than that adopted by Mr Marshall. It was based simply on a reduction in the estimated sale prices of the caravans, subject to a discount to reflect the future sale dates. Moreover, the contours adopted were not drawn at 50 metre intervals as suggested by Mr Marshall. They were irregular in shape, and apparently designed to reflect differences in noise and visual impact. In my judgment, the contour pattern adopted by Mr Marshall is arbitrary. Relatively small adjustments to them would produce a significantly different result. I therefore obtain no assistance from Mr Marshall’s general approach to the diminution in value. I consider that Mr Gale-Hasleham was right to suggest that the bid of a hypothetical purchaser for the retained land, reflecting the effects of the compulsory acquisition, would be calculated on the basis of a uniform percentage reduction applied to all pitch values in the park. 15[48]Mr Gale-Hasleham’s opinion that pitch values at Proctor’s Park have all been reduced by 25% as a result of the scheme was, as I have said, unsupported by any evidence. Mr Marshall relied on five comparable transactions to support his valuation, but only three of them, at Blisworth, Knaresbrough and Doncaster, incorporated an agreed reduction in value resulting from the construction of a new road in the vicinity. The Tribunal always approaches settlement evidence with care, because prices agreed for the purposes of assessing compensation are often influenced by considerations other than those imposed by the discipline of the open market. In this case, the settlements involved valuing a class of property which, it is clear, is highly specialised and in respect of which reliable open market evidence is scarce. Mr Marshall did not provide any information as to the expertise in caravan valuation of the valuers who negotiated the various compensation payments. I obtain no assistance from Mr Marshall’s comparables.[49]Mr Gale-Hasleham agreed with the view expressed in 2000 by the District Valuer who was then dealing with the current claim on behalf of the acquiring authority, namely that there was no doubt that the open market value of the park as a development opportunity had been severely affected. In the light of that evidence and my site inspection, I find that Mr Gale-Hasleham’s 25% deduction is too low and that the value of the undeveloped pitches was reduced overall by 40% as a result of the compulsory acquisition. Bungalow[50]Mr Marshall considered that the value of the warden’s bungalow on the park had been reduced from £125,000 to £100,000. In his rebuttal report dated 19 August 2005 Mr Gale- Hasleham said:
“I can agree 20% depreciation on the bungalow, but not the actual value to start with”
. In fact, Mr Gale-Hasleham did not incorporate a reduction in the value of the bungalow in any of his valuations, but he was unable to provide a satisfactory explanation for his failure to do so. His half-hearted acceptance of a 20% reduction was in the context of an unblighted value of £50,000. The reason for the different starting figures is that Mr Marshall assumed that the bungalow would be sold to an owner-occupier purchaser, separately from the remainder of the park. Mr Gale-Hasleham, on the other hand, valued the bungalow on the basis that it was ancillary to the caravan park, for two reasons. Firstly, planning permission would be needed to use it for independent residential purposes as opposed to the approved use as warden’s living accommodation. Secondly, it was not realistic, considering the bungalow’s location in the middle of the park, for it to be sold separately. I agree with Mr Gale-Hasleham on this issue. I find that the unblighted value of the bungalow was £50,000 and that this was reduced by 20 per cent as a result of the acquisition. Amenity land[51]There are 73.1 acres of amenity land on the claimants’ retained freehold land south of the bypass. It includes the lake and is used by caravanners for fishing and for general amenity purposes. Its agreed unblighted value is £2,000 per acre. Mr Marshall considered 16 that the acquisition reduced this value by 25%. This is because the feeling of tranquillity which the land previously offered has disappeared and the present means of access – under a bridge or through an underpass, both beneath the new road – are significantly less satisfactory than the previous unimpeded access between the northern and southern sections of the park. Mr Gale-Hasleham did not consider that any reduction in this component of the park’s value was justified, because the land could still be accessed and still provided an amenity to users of the park. In the light of my inspection I have no doubt that the value of this land has been adversely affected by the bypass. I consider the depreciation is of the same order as the reduction in value of the warden’s bungalow, namely 20%. Riverbed[52]The claimants’ retained land includes an area of riverbed extending to 2.5 acres. Mr Marshall considered that this should be valued on the same basis as the lake, which both experts had treated as part of the amenity land. He produced an advertisement for the park which the Proctors had placed in 1969, which indicated that both lake and river fishing were available.[53]Mr Gale-Hasleham did not ascribe any value to the riverbed. He accepted in cross- examination that it might have a small value, but certainly not as high as that agreed for the amenity land. I prefer Mr Marshall’s evidence on this point. I find that the riverbed was worth £2,000 per annum in the no-scheme world and that it has been reduced in value to the same extent as the remaining amenity land, namely 20%. Leasehold land[54]It is agreed that the value of the leasehold land taken is £1,020. It also agreed that the unblighted value of the leasehold land retained by the claimants is £12,143. Both these figures are based on a value of £1,000 per acre. Mr Marshall considered that the retained land had been reduced in value by 25%, the same rate he had applied to the freehold amenity land. Mr Gale-Hasleham did not consider that any reduction was appropriate. The leasehold land, he said, was still available to be used for agricultural purposes and there had been no review of the rent payable since the lease was originally granted in 1959. In the light of my inspection I again agree in principle with Mr Marshall on this issue. As with the freehold amenity land and the riverbed, the degree of depreciation in my view is 20%. Value of existing income[55]In Mr Marshall’s opinion a purchaser, buying the park with the intention to redevelop it, would not wholly disregard the existing profit, but would value it at 2 years purchase. He calculated that the profit was £97,000 per annum in the no scheme world and £55,000 in the scheme world. Mr Gale-Hasleham considered that a potential purchaser would not pay anything for the existing income stream. If the park were being redeveloped, with new landscaping provided, the developer would not wish to damage the presentation of the 17 scheme by preserving the existing, old caravans. I prefer the evidence of Mr Gale-Hasleham on this issue. Potential ransom[56]In his rebuttal report dated 19 August 2005 Mr Gale-Hasleham raised the possibility that the redevelopment of the claimants’ site might be ransomed because both access and certain services passed across the bridge over the canal. This was not particularised in his rebuttal report and Mr Gale-Hasleham did not amend his valuation until, on the morning of the first day of the hearing, he produced a revised calculation including a footnote relating to the ransom demand.[57]By a deed of assignment dated 29 June 1956 between the British Transport Commission (“BTC”), the assignor and Mr and Mrs J C Proctor, the assignees covenanted “that they will not use or permit the said bridge to be used except for the purpose of obtaining access to and from the said premises in connection with the use and enjoyment thereof as an extension to their pleasure park provided that the maximum total weight of any traffic machinery or load using or carried over the said bridge shall not exceed ten tons”. In return BTC obtained a direct covenant that the assignees would observe and perform the covenants in the original licence, which included the entire maintenance responsibility for the bridge. Mr Adams submitted that, having obtained their objective of avoiding any maintenance liability in respect of the bridge, the position had been left open for the British Water Board (“BWB”), the successor in title to BTC, to demand further consideration for granting additional rights. The use of the land as a caravan site could very well be argued to be a substantially different use from that of the pleasure park, as it had been in 1956 and the 10 ton limit was not sufficient to allow modern mobile home units to be brought in. Although there was an alternative physical access to the site, no documentary evidence relating to it was available. Even if this alternative access was lawful, it appears to have been across agricultural fields. It also crossed the canal and was therefore unlikely to be suitable or adequate for the purposes of the park. Mr Adams said that licences were required for both water and sewage, which gave a further potential opportunity for the park owners to be held to ransom. Mr Gale-Hasleham originally calculated that such a ransom could equate to 12.57% of the value of the park. This was corrected to 11.7% on the fourth day of the hearing and Mr Gale-Hasleham considered that a deduction of this magnitude should be reflected in the valuations.[58]In reply, Mr Humphries produced a letter from a Mr Stewart, the operator of a caravan transport business. Mr Stewart said that he had transported many caravans on to Proctors Park from the mid 1970s to date. Some had been 12 feet wide. He had never experienced problems with access over the canal bridge. Mr Humphries described the acquiring authority’s case on this issue as just wild assertion. There was no evidence that BWB ever had, or indeed ever would seek to ransom the Proctors’ use of the canal bridge. Indeed all the evidence was to the contrary. The assignment of the 1945 licence had relieved BWB of the burden of ongoing maintenance of the canal bridge. The Proctors also allowed BWB access 18 on to their land for canal maintenance. This arrangement had continued for almost 50 years. There was no evidence that BWB had ever objected to the Proctors’ use of their land. Nor was it suggested, for example, that they had objected to the 1989 grant of planning permission for the redevelopment of the caravan site.[59]Mr Humphries said that, at the valuation date, a prospective purchaser would have known that he had a legal right to use the bridge under the 1956 assignment and a pre- existing right to use the bridge for its intended purpose as an “accommodation work” for the canal. Such a purchaser would not have been able to negotiate the purchase price down because of the risk of ransom, because none existed. Mr Humphries pointed out that under the Water Act 1989 a landowner could requisition both water and sewage services and the relevant statutory undertaker had wide power to carry out such works on the land of others. The Act did give certain statutory undertakers, such as BWB, the power to object to the exercise of such powers over their land, but only where the works would “affect injuriously” the property or the carrying out of the undertaking. In this case there would be no injurious affection since the pipes already existed and, in any event, BWB had not objected to their installation. As for the risk that a ransom would be demanded from East Midlands Electricity in respect of the supply line which crossed the canal, Mr Marshall said that, in his long experience, BWB had never demanded ransom payments in such circumstances.[60]I consider that the risk that the owners of Proctors’ Park might have been held to ransom over access or services was very slight. A prospective purchaser might have been advised by his solicitors that such risk could not be disregarded entirely, and if so, the matter is likely to have been raised during the negotiations on price. In my judgment, however, in view of the long history of the use of the site as a caravan site without any problem arising, agreement would have been reached that the price payable for the claimants’ interest in the park should not be reduced to reflect this factor. Disturbance[61]The question of disturbance compensation was in issue at the commencement of the hearing, but was subsequently agreed at £45,000. Conclusion[62]I attach as an appendix to this decision a valuation which incorporates the conclusions I have reached on the various matters in issue. It shows that the total compensation payable by the acquiring authority to the claimants is £500,325, made up as follows: £ Freehold – land acquired 77,625 injurious affection 374,250 Leasehold – land acquired 1,020 Injurious affection 2,429 19 3,449 say 3,450 Disturbance 45,000 £500,325 In addition the acquiring authority will pay an agreed surveyor’s fee of £18,097.06 and the claimants’ legal costs of transfer.[63]The parties are now invited to make representations as to costs. A letter relating to that accompanies this decision, which will take effect when but not until the question of costs has been determined. Dated: 28 October 2005 N J Rose FRICS 20 Addendum[64]I have received written submissions on costs from the parties.[65]The acquiring authority say that costs are in the Tribunal’s discretion, since the compensation awarded exceeded any sealed offer made by the authority and was less than any unconditional offer by the claimants to accept a particular sum. They accept that it is reasonable for a claimant to put forward its claim on the maximum basis which it can reasonably support and any claimant should be entitled to the expenses of doing so if it is successful. They submit, however, that there are several reasons for concluding that the claimants’ costs exceeded those which it was reasonable for them to incur. These reasons are:(i) the sum claimed was far in excess of the award;(ii) this was substantially due to the claim being put forward on the basis that there was a deemed unconditional planning permission in 1960;(iii) this issue required very considerable costs to be incurred on both sides; it required investigations and factual enquiries to be made going back over some 55 years and the argument and evidence concerning this issue took a substantial amount of time at the hearing itself, as well as in preparation for the hearing and in preparation of the written submissions afterwards.[66]The acquiring authority submit that it was unreasonable for the claimants to put their case on this basis because:(a) it was based on factual evidence put forward by Mr J W Proctor which, in the light of Mrs Batts’s evidence, obviously exaggerated the extent of the use of the site for caravans in 1960;(b) in the real life negotiations with the local planning authority which took place in the scheme world, the claimants had declined to put forward any evidence that there was an existing site in 1960, although repeatedly invited to do so and despite the fact that all the relevant knowledge was within their own experience;(c) the site would not have been saleable unless and until the planning situation had been resolved and, as there was no reason to suppose that the negotiations would have proceeded in a different manner in the no scheme world from the manner in which they in fact proceeded in the scheme world, whether or not the site was in fact an existing site in 1960 was an entirely hypothetical issue. The authority submit that the claim was therefore unreasonably exaggerated and costs were wasted on both sides as a result. Further or alternatively, they submit that a disproportionate amount of time and expense was spent on this issue. The acquiring authority therefore submits that a percentage should be disallowed from the claimants’ costs.[67]The claimants do not accept that they should be deprived of any part of their costs. Relying on the decision of the Court of Appeal in Purfleet Farms Limited v Secretary of State for Transport Local Government and the Regions [2002] RVR 368, they say that the acquiring authority’s suggestion that there are special reasons for departing from the general rule that claimants who have been awarded compensation should be awarded their costs are wholly without foundation. They say that their argument that, at the valuation date, a purchaser of the site would have taken into account a deemed planning permission had a clear statutory basis and they called evidence to support that contention. Whilst their argument on this point was ultimately unsuccessful, it was fanciful to suggest that to raise it was “manifestly unreasonable conduct” (per Purfleet at para 29). Moreover, whilst the sum 21 claimed was indeed greater than the award, it did not represent a gross disparity in the circumstances of the case. Furthermore, the award itself was significantly in excess of the acquiring authority’s valuation and its sealed offer.[68]I accept the claimants’ submissions. Their suggestion that there was a deemed planning permission, although unsuccessful, was supported by the evidence of Mrs Batts, who gave factual evidence to the best of her recollection as to the position many years earlier. The claimants’ valuations were based on the evidence of Mr Marshall, an experienced surveyor, whose calculations were prepared in a competent manner although I found them to be too high. In short, I do not consider that the conduct of the claimants or of their witnesses can properly be described as manifestly unreasonable.[69]Accordingly, the acquiring authority must pay the claimants’ costs, such costs if not agreed to be the subject of a detailed assessment by the Registrar on the standard basis. Dated: 22 November 2005 N J Rose FRICS 22 APPENDIX PROCTOR’S PLEASURE PARK, BARROW-UPON-SOAR, LEICESTERSHIRE DETERMINATION OF COMPENSATION BY THE LANDS TRIBUNAL A FREEHOLD £ Land Acquired 1.9 acres @ 20 = 38 pitches @ £1,600 60,800 2.6 acres other land @ £5,000 13,000 1.53 acres cutting @ £2,500 3,825 77,625 Injurious Affection Before 50 Residential @ £4,100 205,000 319 Holiday pitches (north) @ £1,600 510,400 56 Holiday pitches (south) @ £1,600 89,600 30 Touring pitches @ £1,000 30,000 73.1 acres amenity land (south) @ £2,000 146,200 2.5 acres bed of river @ £2,000 5,000 Bungalow 50,000 1,036,200 After 50 Residential @ £2,460 123,000 319 Holiday pitches (north) @ £ 960 306,240 56 Holiday pitches (south) @ £ 960 53,750 30 Touring pitches @ £ 600 18,000 73.1 acres amenity land (south) @ £1,600 116,960 2.5 acres bed of river @ £1,600 4,000 Bungalow 40,000 661,950 Depreciation 374,250 Total 451,875 B LEASEHOLD Land acquired – 1.02 acres @ £1,000 1,020 Injurious Affection Before 12.143 acres @ £1,000 12,143 After 12.143 acres @ £ 800 9,714 Depreciation 2,429 3,449 Say 3,450 C DISTURBANCE Agreed at 45,000 Total compensation – £451,875 + 3,450 + 45,000 = £500,325 23