KINGSWOOD HALL PROPERTIES LIMITED v NATS (EN ROUTE) PLC ACQ/64/2004

UPPER TRIBUNAL

LANDS CHAMBER

ACQ/64/2004

Case No ACQ/64/2004

Between

KINGSWOOD HALL PROPERTIES LIMITEDApplicant

NATS (EN ROUTE) PLCRespondent

Before

The President

Miss Joanne Moss (instructed by Thomas Eggar) for Claimant

Brian Ash QC (instructed by Richards Butler) for Acquiring Authority

Venue Procession House, 110 New Bridge Street, London EC4V 6JL

Date 20 June 2005

Hearing 17 May 2005

Property: Radio Transmitter Station, Reigate Hill, Fort Lane, Surrey RH2 9RQ

Catchwords: COMPENSATION – compulsory purchase – preliminary issue – additional development – land acquired for radio transmitter station in connection with statutory functions relating to air traffic control – compensation agreed – subsequent permission for aerials –further claim for compensation – whether permission for additional development – held not additional development – Land Compensation Act 1961 ss 23 & 29(1)

[1]Under the Civil Aviation Authority (Margery Farm, Reigate Hill) Compulsory Purchase Order 1993 the Civil Aviation Authority acquired 1.43 acres of land belonging to the claimant for the purpose of the constructing on that and on other land included in the CPO a radio transmitter station. Possession was taken on 15 September 1994. The claimant gave notice of reference to this Tribunal of its claim for compensation, and on 12 July 1999 the Tribunal issued a consent order embodying terms agreed between the claimant and the acquiring authority. Those terms were that the compensation payable was £50,000 plus interest and costs.

[2]On 21 January 2004, on the application of NATS (En Route) Plc, a subsidiary of National Air Traffic Services Limited which had succeeded to the statutory duties of the CAA in relation to air traffic control services under the Transport Act 2000, the Reigate and Banstead Borough Council granted planning permission for:

“The development specified in the application for planning permission dated 26th November 2003. Radio Transmitter Station Reigate Hill Reigate Surrey RH2 9RQ. Installations of aerials (1 Cable and Wireless Dish, 2 x NATS Dishes, 1 x Poems Monitor Antenna and 16 x Folded Dipole) mounted on existing tower on NATS radio station site (Retrospective)”

. The permission was subject to two conditions, one requiring the development to be commenced within 5 years and the other requiring the removal of the equipment within 3 months of the cessation of the use.

[3]Part IV of the Land Compensation Act 1961 makes provision for compensation where planning permission for additional development is granted after the acquisition. Section 23 provides:

“(1) Where – (a) any interest in land is compulsorily acquired or is sold to an authority possessing compulsory purchase powers and, before the end of the period of ten years beginning with the date of completion, a planning decision is made granting permission for the carrying out of additional development of any of the land; and (b) the principal amount of the compensation which was payable in respect of the compulsory acquisition or, in the case of a sale by agreement, the amount of the purchase price, was less than the amount specified in subsection (2) of this section, then, subject to the following provisions of this section, the person to whom the compensation or purchase price was payable shall be entitled, on a claim duly made by him, to compensation from the acquiring authority of an amount equal to the difference. (2) The amount referred to in subsection (1)(b) of this section is the principal amount of the compensation which would have been payable in respect of a compulsory acquisition of the interest by the acquiring authority, in pursuance of a notice to treat served on the relevant date if – 2 (a) the planning decision mentioned in subsection (1)(a) of this section had been made before that date; and (b) the permission granted by it had been in force on that date.”

[4]Section 29 (1) defines “additional development” to mean “…any development of the land other than the following, that is to say – (a) where the acquiring authority are a local authority, and acquired the interest for the purposes of any of their functions, development for the purposes of the functions for which they acquired it; (b) where the acquiring authority are not a local authority, development for the purposes of the project, in connection with which they acquired the interest; (c) development for which planning permission was in force on the relevant date; (d) in the case of compulsory acquisition, development for which it was assumed (in accordance with the provisions of sections 14 to 16 of this Act) for the purpose of assessing compensation that planning permission would be granted; and (e) in the case of a sale by agreement, development for which, if the interest (instead of being sold by agreement) had been compulsorily acquired by the acquiring authority in pursuance of a notice to treat served on the relevant date, it would have been so assumed.”

[5]Section 15(1), which is relevant to paragraph (d) in the above definition, provides:

“In a case where – (a) the relevant interest is to be acquired for purposes which involve the carrying out of proposals of the acquiring authority for development of the relevant land or part thereof, and (b) on the date of service of the notice to treat there is not in force planning permission for that development, it shall be assumed that planning permission would be granted, in respect of the relevant land or that part thereof, as the case may be, such as would permit development thereof in accordance with the proposals of the acquiring authority.”

[6]On 2 April 2004 the claimant wrote to the acquiring authority claiming compensation under section 23 in the sum of £100,000 plus costs and interest, and by notice of reference dated 16 September 2004 the acquiring authority referred the claim to this Tribunal. On 15 February 2005 on the application of the acquiring authority I ordered that the following should be determined as a preliminary issue: “Whether the development permitted by the planning permission of 21 January 2004 is additional development for the purposes of section 23 of the Land Compensation Act 1961”. 3

[7]There is no dispute as to the facts. I note the following background facts. On 10 September 1993 the CAA applied to Reigate and Banstead Borough Council for full planning permission to construct on the land at Margery Farm development described as “Site for radio station development to include a composite steel/timber tower 53m high, equipment buildings, fencing and access.” The application was accompanied by 6 drawings that were stated to form part of the application. On 2 November 1993 the council’s Principal Planning Officer wrote to the CAA to say that on 28 October 1993 the Planning and Development Committee had resolved to grant planning permission for the development applied for (although the tower was said to be 50m high), subject to conditions, and subject also to prior completion of a section 106 agreement “to ensure that the proposed mast is made available to other persons, groups or organisations who wish to locate their antennae or dishes thereon subject to [these] being compatible with the CAA’s operational and technical requirements.”

[8]The claimant’s interest was not vested in the acquiring authority until 14 April 2000, and the section 106 agreement was not completed until 24 November 2004. Nevertheless it appears that the council were prepared to issue the planning permission it had resolved to grant, on the strength of an agreement under section 111 of the Local Government Act 1972 obliging the acquiring authority to enter into the section 106 agreement upon gaining ownership of the land. The permission was issued on 19 September 1994 (after, therefore, the date of valuation, 15 September 1994). There were 14 conditions, of which the following are to be noted: “5. Details of all aerial antenna and microwave dishes, together with any ancillary equipment, shall be submitted to and approved by the Local Planning Authority before they are installed on the tower hereby permitted.

[6]Before any work commences on the site, a landscaping scheme shall be submitted to and approved by the Local Planning Authority which shall include a plan of all existing trees and hedgerows on the land and details of any to be retained, together with measures for their protection in the course of development. None of the trees shown to be retained shall be felled or otherwise removed or pruned without the prior consent of the Local Planning Authority until 12 calendar months after completion of the development hereby permitted. Any tree felled or otherwise removed; or pruned otherwise than in accordance with British Standard No.3998:1989 without the written consent of the Local Planning Authority shall be replaced by one of an appropriate size and species in accordance with details approved in writing by the Local Planning Authority…

[10]This permission shall enure for the benefit of the CAA only, or their successor in function.

[11]This permission does not purport to grant approval to the length of the ‘site sharers equipment building’ as shown on the submitted plans which shall not, at the present time, exceed 9.03m in length. Details of any extension of the building, together with a justification for such an extension, shall be submitted to and approved by the Local Planning Authority before any extension works are commenced.”

[9]At the hearing of the preliminary issue a witness statement from Ian John Davenport, Senior Estates Surveyor for National Air Traffic Services Limited, was produced on behalf of the acquiring authority. Its contents were accepted by the claimant. Mr Davenport said that 4 the aerial that were the subject of the January 2004 permission included those that had been shown on the plans accompanying the 1993 planning application together with two additional monitor aerial for radar and a link dish. All of that equipment had been used exclusively for the purpose of NATS’ air traffic service operations. Third party aerials had been installed on the mast for limited periods, under licences granted to Thames Water from 1 November 1996 until 31 October 2002 and to Fujitsu (and, before them, British Gas) from 29 April 1996 to 31 August 2003. There was also a current licence granted to Cable and Wireless (formerly Mercury Communications) in respect of a service provided for the sole benefit of NATS.

[10]For the claimant Miss Joanne Moss said that the effect of conditions 10, 4 and 5 of the 1994 planning permission was that the development permitted had to be used for the functions of the CAA. No such restriction applied to the 2004 permission. CAA’s functions did not extend to running a business to acquire profit by allowing others to install their own equipment or to share CAA’s mast or other equipment. The Transport Act 2000 had created a new regime for air traffic, and the CAA became a fully commercial operation, although its functions and the duties of licensees under the Act did not extend to running a business by providing telecommunication facility to third parties. Under section 42(1) of the Civil Aviation Act 1982, the CAA might be authorised to acquire land compulsorily for any purpose connected with its functions. An intensification of use, she said, required planning permission, and the use of aerials by third parties was a deviation from the 1994 permission that constituted development. It followed that what was permitted by the 2004 permission was additional development for the purpose of section 23 and 29 of the 1961 Act.

[11]For the acquiring authority Mr Brian Ash QC said that the development permitted by the 2004 permission was excluded from the definition of “additional development” under both paragraph (b) and paragraph (d) of the definition. The CPO was made “for the purpose of the erection of a radio transmitter station in connection with its functions with respect to the provision of air traffic services”. The aerial and other equipment that were installed after the CAA took possession of the land were used for the purposes of the CAA/NATS function of providing air navigation services save to the limited extent of the mast sharing referred to by Mr Davenport. The aerials and equipment approved under the January 2004 consent had been and continued to be used exclusively for the purpose of providing air traffic navigation services and, accordingly the development was plainly “for the purposes of the project, in connection with which [the acquiring authority] acquired the interest” (paragraph (b)). The land had been acquired for purposes which involved “the carrying out of proposals of the acquiring authority for development of the relevant land”, and the development was in accordance with these proposals. Planning permission for it was therefore to be assumed under section 15(1), and paragraph (d) accordingly applied.

[12]I cannot accept that Miss Moss’s submission that the 1994 permission, which the council had resolved to grant in November 1993 limited the development to use for the functions of the CAA. The permission was for “radio station development to include a composite steel/timber tower” etc rather than for “air traffic control radio tower” or some such description. Condition 10 did not limit the use of the tower to air traffic control purposes or the CAA’s statutory functions. It provided that the permission should enure for benefit of the CAA only or their successor in function. If, as part of their use of the planning unit, the CAA provided facilities for other telecommunications operators, that would not constitute a breach of condition 10. 5 Condition 11 moreover, referred to a “site sharers equipment building” as part of the development. It would indeed have been remarkable if the council had inadvertently granted permission that prevented anyone other than the CAA using the mast. The whole purpose of the proposed section 106 agreement, which was stated to be a pre-requisite of the issue of the permission, was to oblige the CAA to provide facilities for other operators. In my judgment the permission plainly extended to the provision and use of such facilities.

[13]The preliminary issue does not depend, however, on the terms of the 1994 permission itself, which was not in existence on the valuation date and thus did not give rise to an exclusion under paragraph (c) of the definition of “additional development”, although the fact that at that date the council had resolved to grant permission could well be relevant to the question of valuation if the claimant were to succeed on this preliminary issue. What has to be determined is whether the development permitted by the 2004 permission falls within either paragraph (b) or (d) of the exceptions to the definition of additional development; and the application for permission and the resolution to grant it are, as I shall say, of potential relevance to this.

[14]Under paragraph (b) the question is whether the development permitted was “for the purposes of the project for which” the acquiring authority acquired the claimant’s interest. This requires the purpose of the project to be identified. The CPO authorised the acquiring authority to purchase the land compulsorily “for the purpose of the erection of a radio transmitter station in connection with its functions with respect to the provision of air navigation services.” The wording reflected that in section 42(1) of the 1982 Act, under which the CPO was made. That provision authorised compulsory purchase “for any purpose connected with the performance of the CAA’s functions.” The CPO was made on 20 October 1993 and was confirmed on 20 July 1994. The description of the purpose in the CPO is clearly consistent with the terms of the planning permission which the CAA had applied for on 10 September 2003 and the council had on 28 October 1993 resolved to grant. It was not in terms limited to a use for the provision of air navigation services only. The radio transmitter station was to be erected “in connection with” the provision of such services. That the CAA might propose in addition to provide facilities there for other operators would not mean that the purpose of the acquisition was not a purpose “connected with the performance” of their functions so as to take it outside the scope of section 42(1). In my judgment the purposes of the project for which the claimants' interest was acquired are properly to be identified, not only in the terms of the wording of the CPO itself, but also taking account of the planning application, which showed what the CAA had in mind when making the order. The provision of facilities for other operators at the radio transmitter station fell within the purposes of the project so identified, and accordingly the development permitted in 2004 consisting in the installation of aerials at the station that could, under the terms of the permission, be used by other operators, was not additional development as defined in section 29(1). It is also the case, although this is not a matter that is determinative of the issue, that such aerials could have been installed under the terms of the permission that the council had resolved to grant, although they would have required approval under condition 5. There is nothing to suggest that such approval would not have been given.

[15]Under section 15(1) of the 1961 Act planning permission is to be assumed such as would permit development “in accordance with the proposals of the acquiring authority”. I can see no 6 reason why the proposals of the CAA should not be identified in a similar way to the purposes of the project, so that the development permitted by the 2004 permission would not be additional to the development for which planning permission is to be assumed under section 15(1). Thus paragraph (d) also would operate so as to exclude what was permitted in 2004 from the definition of additional development.

[16]I determine, therefore, that the development permitted by the planning permission of 21 January 2004 is not additional development for the purposes of section 23 of the 1961 Act. The result is that the claimant has no entitlement to compensation and the claim must be dismissed. This decision will not take effect until the issue of costs has been determined, and a letter on this accompanies this decision. Dated 20 May 2005 George Bartlett QC, President ADDENDUM ON COSTS

[17]I have received written submissions on costs. The acquiring authority submit that costs should follow the decision and that accordingly they should have their costs (in the sum of £39,666.95) and the claimant should bear its costs. The claimant says that in cases relating to compensation for compulsory acquisition it is usual for the acquiring authority to meet the claimants' reasonable costs in making a serious claim. Here the planning permission that gave rise to the claim was obtained for the purpose of the business profits of NATS. It was clear from the large amount of the costs claimed by the acquiring authority that they took the claim very seriously indeed. The claimant submits therefore that the making of the claim was justified and that both parties considered that there was a reasonable prospect of it succeeding. The acquiring authority should therefore meet the claimant’s reasonable costs. Alternatively there should be no order as to costs. Any costs awarded to the authority should be taxed.

[18]On its initial claim for compensation the claimant, by agreement, was awarded £50,000 plus interest and its costs. The claim for additional compensation in the sum of £100,000 was a separate claim, and it has wholly failed. While the general rule is that a claimant whose land has been compulsorily acquired will receive its costs, this general rule does not apply where the claim fails in its entirety. Under section 4 of the Land Compensation Act 1961 an acquiring authority will receive their costs if they make an unconditional offer of compensation and the compensation determined does not exceed this amount. If no compensation at all is awarded, if the claim wholly fails, the unsuccessful claimant must in my view expect to pay the authority’s costs unless there are special reasons why he should not do so. I can see no such special reasons here. There is no suggestion that the authority encouraged the claimant to 7 make the claim. On the contrary they have always made clear their rejection of it. There is no suggestion that they have through their conduct unnecessarily caused the claimant any expense. By seeking the determination of the preliminary issue the amount of preparation and hearing time involved in resolving the claim has been minimised. The amount of costs in fact incurred by the authority in resisting the claim does not seem to me to affect the matter, and the fact that the claimant asks for any costs awarded to be taxed suggests that it does not consider that it considers that the total amount was reasonably incurred.

[19]The claimant must accordingly pay the acquiring authority’s costs. I am not prepared to determine the amount on the basis of the material before me. They must be the subject of detailed assessment by the Registrar. Dated 20 June 2005 George Bartlett QC, President 8