DAVID ERNEST BARRETT (as Executor of ERNEST GEORGE ARTHUR BARRETT Deceased) v LONDON BOROUGH OF SUTTON LCA/108/2004

UPPER TRIBUNAL
LANDS CHAMBER
LCA/108/2004Case No LCA/108/2004
Between
DAVID ERNEST BARRETT (as Executor of ERNEST GEORGE ARTHUR BARRETT Deceased)ApplicantLONDON BOROUGH OF SUTTONRespondent
Before
P R Francis FRICS(in person) for ClaimantJackson Webber for Compensating Authoritysolicitor to London Borough of Sutton for Compensating AuthorityVenue Procession House, 110 New Bridge Street, London, EC4V 6JLDate 28 October 2005Hearing 11 October 2005Property: 343 Bishopsford Road, Morden, Surrey, SM4 6BWCatchwords: COMPENSATION – Land Compensation Act 1973, Part 1 – residential dwelling – injurious affection – effects of noise, dust, fumes and artificial lighting following construction of a highway improvement scheme – compensation awarded: Nil
[1]This is a reference, heard under the Simplified Procedure (Rule 28, Lands Tribunal Rules 1996), to determine the compensation (if any) payable to Mr David Barrett (“the claimant”) as executor in the estate of his late father, Ernest Barrett, under Part 1 of the Land Compensation Act 1973 (“the 1973 Act”) following the coming into use of a highway improvement scheme at the junction of Bishopsford Road with the Rosehill Roundabout in Morden, Surrey. The claimant’s father, who had occupied the subject property, 343 Bishopsford Road, Morden, died on 20 December 2001 and the property was sold on 31May 2002.[2]Mr David Barrett appeared as claimant in person. Mr Jackson Webber, a solicitor with London Borough of Sutton (“the council”), appeared and called Mr Keith Turnor MRICS and Mr Peter Wardill BSc (Hons) C Eng MICE who gave valuation and highways evidence respectively. Facts[3]From the claimant’s statement of case, the council’s reply and its evidence, together with my unaccompanied inspection of the vicinity of the subject property and the scheme on 12 October 2005, I find the following facts.[4]The scheme, the use of which formed the basis of this claim, was entitled “Rosehill Roundabout – Bus Priority, Phase II Works” and was part of a programme of improvements that the council effected in the late 1990s to ease traffic congestion and improve flows at the junction of 6 roads including the A217, A297, B278 and B2230. This part of the scheme involved the creation of a bus-lane (which incorporated an existing bus lay-by) and effectively increased the approach to the roundabout from the north-east from 2 to 3 lanes, together with new traffic signals that incorporated a pedestrian phase to replace an existing zebra-crossing.[5]The claimant’s property comprised a ‘Parlour Style’ centrally-heated and part double- glazed 3 bedroom, 2 reception room mid-terrace (in a block of four) ex local authority house lying behind a narrow green and footpath on the south-east side of Bishopsford Road, virtually adjacent to the Rosehill roundabout and opposite a parade of shops. Prior to the scheme, the front wall of the house was 16.2m from the kerb-edge but the provision of the bus-lane, achieved by widening the road and at the same time narrowing the existing approach lanes, reduced that distance by 1.8 metres to 14.4 metres. The house has a 4.3m deep front garden, enclosed by a privet hedge.[6]The scheme was completed and opened to public use on 31 January 2000, this being the ‘relevant date’ under section 1(9)(a) of the 1973 Act. The ‘first claim day’ under section 3(2) is 12 months after the commencement of public use, and 31 January 2001 is therefore the ‘valuation date’ and compensation, if any, is to be assessed by reference to prices current on that date (section 4(1)). A claim for compensation was submitted by agents on behalf of the claimant (and in respect of 5 other properties – 331, 333, 335, 341 and 345 Bishopsford Road) on that date. Following failure to negotiate an acceptable level of compensation on their 2 clients’ behalf, the agents withdrew and the claimant submitted a notice of reference on 20 October 2004 for the matter to be determined by this Tribunal. The claim is for alleged diminution in value of the subject property of £6,000 being 5% of its value, due to the effects of noise, vibration, smell fumes and smoke and artificial light pollution.[7]The right to compensation for depreciation caused by use of public works is set out in Part 1 of the Land Compensation Act 1973. Section 1, subsections (1) and (2) state:
“1 – (1) Where the value of an interest in land is depreciated by physical factors caused by the use of the public works, then, if- (a) the interest qualifies for compensation under this Part of this Act; and (b) the person entitled to the interest makes a claim [after the time provided] by and otherwise in accordance with this Part of this Act, compensation for that depreciation shall, subject to the provisions of this Part of this Act, be payable by the responsible authority to the person making the claim (hereinafter referred to as “the claimant”). (2) The physical factors mentioned in subsection (1) above are noise, vibration, smell, fumes, smoke and artificial lighting and the discharge on to the land in respect of which the claim is made of any solid or liquid substance.”
Claimant’s case[8]Mr Barrett said that, during the construction works and before it was completed, his late father had concerns about the effect the scheme would have upon his property. He was approached by a neighbour who was similarly apprehensive, and who had been contacted by A B Walker BA(Hons) FRICS MRTPI of Lloyd Williams, Chartered Surveyors who specialise in compensation work. Following an inspection, Mr Walker said he considered there was a case, and submitted claims under Part 1 for Mr Barrett and 5 other residents suggesting a diminution in value of the properties of 5% of their open market value at 31 January 2001. Negotiations were inconclusive and a suggestion from Mr Walker that the matter should be determined by Alternative Dispute Resolution (ADR) was rejected by the council. As the only alternative was a reference to this Tribunal, Mr Walker advised his clients, in April 2004, that as he had a pecuniary interest in the outcome of the claims he would be unable to act as the claimants’ expert at a hearing. Mr Barrett said that as executor of his father’s estate he felt obliged to pursue the matter himself and the notice of reference was thus lodged in October 2004. At the commencement of the hearing, Mr Barrett said that, as far as the other 5 properties were concerned, the status of their claims was ‘on-hold’ pending the outcome of this reference.[9]It was Mr Barrett’s case that the greater volume of traffic permitted by the scheme, and the increased speed of buses approaching the roundabout along the new bus lane had served to amplify both noise and vibration apparent within the property. Furthermore, with the installation of the traffic lights at the junction, it was now necessary for emergency vehicles to use their sirens whenever they approached. The existence of the traffic lights meant that, when they were at red, vehicles tended to wait longer at the junction than had previously been the case resulting in increased fumes. Also, when buses were waiting at the traffic lights, the 3 lighting from their top-decks was more noticeable from the first-floor front bedroom window, and vehicle lighting in general was more apparent due to traffic’s closer proximity to the house.[10]Mr Barrett said that Mr Walker had estimated the value of the claimant’s house, at the valuation date, at £120,000 and the alleged diminution of 5% (£6,000) was borne out by the only available comparable – 129 Bishopsford Road, a similar house upon which an offer of £149,000 had been received in May 2002. That compared with the £139,500 for which the late Mr Barrett’s house had sold on 31 May 2002. In cross-examination, he accepted that 129 was about 1km further along Bishopsford Road and was thus not easy to compare directly and that the fact it was somewhat further from the road, as had been pointed out by Mr Turnor, might have some impact. He said he was uneasy with the concept of comparing properties that have not been physically inspected but, in his view, it was patently obvious that the scheme will have had a detrimental affect on the subject property.[11]The 5% diminution in value was a figure that had been suggested by Mr Walker, and Mr Barrett said that he considered this to be a reasonable figure. Asked for his comments in response to the comparables that had been put forward in Mr Turnor’s expert witness report, Mr Barrett said that in general, he was treating them with some scepticism. He did not agree with Mr Turnor’s assessment of the value of 343 at January 2001 in the sum of £106,000 and, as to the sale of 325 in April 2002 at £134,000 (£5,500 less than 343 had sold for the following month) he said that property could also have been affected by the scheme. As to the recorded sales of 119 and 157 which also sold for less than the subject property, Mr Barrett said they had been sold in the previous quarter in a rapidly rising market where there had, according to the upmystreet.com statistics, been an 8.5% rise in values in that quarter alone.[12]Regarding the physical factors, Mr Barrett acknowledged that no scientific evidence had been produced by the claimant, and there was nothing quantifiable upon which he could base his case other than the points he had referred to. However, he pointed to the Lands Tribunal case of King and Preselo v Dorset County Council [1998] RVR 38 where the President, HH Judge Bernard Marder QC, had said he attached little weight to the technical (acoustic) evidence and relied to a greater extent upon the evidence of the claimants which had been given from their personal experience of the effects of the scheme. Mr Barrett accepted that the council needed to have a logical basis upon which to investigate claims and appreciated that whilst it had not been obliged to, the council had produced some traffic flow evidence in support of its case. However, whilst he accepted that since the improvements had been completed the furthest 2 lanes of the (now) 3 lane approach had been moved further away, and the inside lane only accounted for about 15% of the vehicles using the approach (with buses normally using the middle lane), he did not accept the traffic count figures that the council had produced.[13]Mr Barrett accepted that the road was consistently busy and that, especially at peak times, there were always queues to the roundabout. He did not think, despite the council’s assertions, that traffic flows had improved as a result of the improvements. 4 Compensating Authority’s case[14]Mr Wardill is Principal Engineer in the Planning and Transportation Division of the council with responsibility for the design and construction of major highway and traffic schemes within the borough. He produced a plan and set out details of the extent of the highway improvement works that had been effected. In response to Mr Barrett’s claim, he said that contrary to the assertions about increased traffic, the two traffic flow charts he produced showed, remarkably, that there had in fact been a reduction in peak-hour flows between 1993 and 2003. The two traffic counts taken over two hour morning and evening peaks in October 1993 and December 2003 clearly show that levels have reduced following introduction of the scheme. The morning peak (hourly) flow in 1993 was 1484 vehicles, whereas in 2003 they were 1460. Similarly, in the evening, they were 1559 in 1993 and 1379 in 2003. There was also no evidence, he said, that speeds had increased and indeed, this would be unlikely as there were now traffic lights right on the junction. Any buses, for instance, moving from the bus-stop which was in its original location only a few yards from the junction would not have the chance to build up much speed by the time they reached the roundabout, even if traffic was clear and the lights were at green.[15]Mr Wardill said that, from his own observations, queue lengths at the roundabout have generally reduced since the introduction of the scheme, and it was a fact that 85% of the traffic approaching the roundabout on Bishopsford Road uses the middle and outer lanes; consequently only 15% uses the lane which is closer to the subject property. This meant, therefore, that the vast majority of the traffic was now marginally further away from Mr Barrett’s house than had been the case pre-scheme. He was also of the view that there was no increase in the number of emergency vehicles using their sirens, but accepted that this was not the result of any scientific research. There had also not been any scientific analysis of noise or fumes – it being the claimant’s duty to prove his case, but in his view, Mr Wardill said he could not see how either could have increased with more efficient use of the junction and the general move toward more efficient engines. As to buses, he said there was only one route using Bishopsford Road in front of the claimant’s property. This, according to the 2005 timetable produced in his evidence showed that the frequency was one every 10 minutes during the day, reducing to 20 minutes later at night. In cross-examination Mr Wardill admitted that the majority of his evidence was his professional opinion based upon personal observations, but the traffic count figures were there as clear fact.[16]Mr Turnor is a Senior Valuer in the Valuation and Estates Section of the Sutton’s Construction and Property Services Department and has been employed by the council since 1989. He said that the original claim submitted by Lloyd Williams on behalf of the claimant in January 2001 failed to provide any comparable or scientific evidence to support the alleged diminution in value, and it was only in October 2002 that details of the comparable upon which they intended to rely (the sale of 129) was submitted. The claim for £6,000, therefore, appeared to be wholly arbitrary. It was not until the submission of the claimant’s statement of case for this hearing that any mention was made of the physical factors upon which the claimant claims to rely. It should be noted, he said, that the sale of the subject property and that of 129 were both in mid 2002 and were not therefore at the valuation date. No evidence had been provided by the claimant of immediately pre-scheme and post-scheme sales of properties in the vicinity and it is thus not possible to draw any useful conclusions as to whether any diminution has actually occurred. It was also a rising market, and values were 5 constantly changing. Mr Turnor said that, in concluding that the value of 343 at the relevant date was £106,000 he had not carried out any analysis of how much the market had risen, in percentage terms, between January 2001 and May 2002.[17]As to 129, it was 1km from the subject property and in a much quieter area, not close to the roundabout. It was set further back from the kerb edge (23 metres as against 16.2 metres for 343 pre-scheme), and he understood it had a conservatory that may have had some effect on the value. There were residential properties on the other side of the road (51m away) whereas there was a 4-storey block of shops and flats opposite the subject property only 38m away. The under-offer price that had been quoted by the claimant of £149,000 was not, in fact the sale price. According to the Land Registry database, the property actually sold in October 2002 at a price of £159,000. In summary, Mr Turnor concluded that 129 was not a helpful comparable.[18]He said that he had undertaken his own research from council and Land Registry records, and produced a schedule of sales of properties that had taken place both before and after the relevant valuation date. There were only 10 properties that fronted the scheme (329 – 347) and of those houses where sales had taken place at around the relevant time, only 337 was in the scheme area. The relevant comparables (none of which had been inspected internally, but all were of the same type) were: 337 Bishopsford Road August 2000 £108,500 313 Bishopsford Road November 2000 £106,000 109 Bishopsford Road January 2001 £104,000 It was from these 3 properties that Mr Turnor concluded the value of 343 at January 2001 was £106,000. As to value relativities from when the subject property was sold, the schedule included: 157 Bishopsford Road January 2002 £131,000 119 Bishopsford Road February 2002 £125,000 325 Bishopsford Road April 2002 £134,000 343 Bishopsford Road (subject) May 2002 £139,500[19]Mr Turnor said that 325 was located just before the start of the bus lane and was not therefore affected by the scheme. No 313, which was in the same block as 325 was, surprisingly, sold in 2000 for less than 337 which is, along with the subject property, right by the roundabout and closer to the road than both 325 and 313. This evidence, he said, clearly indicated that there had been no diminution in value as a result of the scheme.[20]Cross-examined by Mr Barrett, Mr Turnor said he was cautious about the average property prices index that had been introduced by the claimant and in any event, he had not factored back from the May 2002 sale price for the subject property to give him his opinion of the January 2001 value. He had concluded £106,000 was appropriate from the comparables. 6[21]In closing, Mr Barrett said that Mr Turnor’s opinion of the value of the subject property at the relevant date was clearly wrong, and as a result he could not place reliance upon the comparables that he had mentioned. The value, as suggested by Lloyd Williams, was £120,000 at January 2001 and factoring back the percentage increases in value from the second quarter of 2002, from the upmystreet.com website proved that to be right. He also had personal experience of the property and had experienced the physical factors – noise, smell, pollution and the effects of artificial lighting - himself. Conclusions[22]The only issue for my determination is whether noise, vibration, fumes and artificial lighting emanating from use of the altered highway have depreciated the value of the subject property, and if they have, by how much the house has been reduced in value.[23]As to Mr Barrett’s submissions on the effects that the physical factors are alleged to have had on the value of the subject property, I note that neither he, nor his previously appointed agents, have adduced any scientific or technical evidence to support the claims. A claimant who does not put expert evidence before the Tribunal is, in attempting to exercise his burden of proof, clearly at a disadvantage. Mr Barrett mentioned King and Preselo presumably in the hope that I would give little weight to the fact that he had not provided expert evidence or actual statistics. However, that was a case where the circumstances were very different from those applicable here. A major road scheme (a new distributor road to relieve congestion in the town centre) had the effect of directing a substantial increase in heavy traffic through what had previously been a quiet, lightly trafficked area. The scheme had facilitated nighttime movements of HGVs, traffic that had a particularly disturbing impact on local residents, including the claimants, in terms of noise, vibration, dust and fumes. Indeed, the President said that the street scene had been “transformed” and the effects of the change were “dramatic” to such an extent that it was not surprising he had found the diminution in value to the two properties due to the operation of the scheme was 22 and 23 percent respectively.[24]There had also been questions over the efficacy of the acoustic tests that had been undertaken. The claimants evidence had been withdrawn as it was accepted to be unreliable, and the council’s was held to be of little use as it only recorded 18 hours of the day when the greatest impact was overnight due to the use of the road by “juggernauts” travelling to and from the south coast ports. The President said (at 47): “The precise dimensions of this growth in traffic are not easy to determine, but in my view precise measurement is not necessary. It is sufficient to say that the growth of traffic over and beyond the anticipated natural growth, and of the proportion of heavy goods vehicles in consequence of the scheme was substantial and for the most part would not have occurred but for the scheme. Both Mr Preselo and Mrs King told me that they had been surprised and shocked by the extent of the increased traffic resulting from the scheme, and I do not believe they were exaggerating”. 7 He went on to say: “For these claimants, as indeed is likely for most claimants in respect of a new road or new road pattern, the additional noise generated by extra traffic is the most important of the of the physical factors underlying the claim. It should not be thought that the Tribunal will disregard expert technical evidence from acoustic specialists as unimportant or irrelevant. Nevertheless, it should be borne in mind that the task of the Tribunal is to determine the depreciation (if any) in the value of the claimant’s interest. This is a matter for the market, and as counsel for the claimants observed the bidder in a residential market does not have an acoustics expert nor even a noise meter at his elbow when making his bid”.[25]In the instant case, the scheme was a minor road improvement, designed to ease the flow of traffic on the approach to the Rosehill roundabout and, with the introduction of traffic signals, to make crossing the road safer for pedestrians. There was no suggestion that any perceived effects resulting from the use of the improved road layout were dramatic or substantial. It is for the claimant to prove his case, and where any perceived effects are marginal, technical evidence will be helpful in substantiating those claims if there is no market evidence (from comparable sales) to support them. In that respect, Mr Barrett relied upon the sale of the subject property in May 2002 for £139,500 and the agreed sale, subject to contract, of 129 for £149,000 at about the same time. It subsequently transpired that that sale did not proceed, but the property was sold for £159,000 in October 2002.[26]I find I can attach little weight to this, the only comparable produced by the claimant, not just because the sale of 129 did not actually occur until October 2002, but for the reasons given by Mr Turnor. It was accepted, and indeed obvious from the market indices produced, that there was a rapidly rising market during 2002 (as indeed there had been throughout the previous 2 years) and the rise in price of 129 between May and October at about 8% mirrors the statistics. However, the comparable property was approximately 1km from the subject property, in a location where there was no major road junction and is set back much further from the road behind a wide grass verge that incorporates a number of mature trees. It also had an extension which, I agree, would be likely to have some affect on its value.[27]The council’s evidence, in terms of comparables was, in my judgment, much more helpful and I accept it. Mr Turnor produced 3 comparables from just before the scheme opened, and 3 from afterwards. As to the pre-scheme sales, I note that 313 which is, in terms of location, very similar to 129 in that it is much further back from the road behind a wide green and mature trees sold for £2,500 less than 337 which is very close to the subject property, in the same terrace, and one of those directly fronting the scheme. Similarly, 325 (which is in the same block as 313 and about 200 – 250 metres further along Bishopsford Road than 343) was sold in April 2002 for £134,000 whereas the subject property sold just 1 month later for £139,500. Even allowing for any minor differences between the properties in terms of standard of modernisation or, for instance, size of garden that conclusively proves, in my judgment, that there is no evidence the scheme has caused any diminution in value to the subject property. Mr Turnor had also referred to some other comparables, in the vicinity of 129 Bishopsford Road, but I attach no weight to these as they were some distance away. As to Mr Barrett’s suggestion that 325 may have been affected by the scheme, I do not accept that 8 it is. On my inspection I noted that it is northeast of the start of the new bus lane and, as I have said, is noticeably further back from the road.[28]Turning now to the physical factors, it is not in dispute that the location of the subject property is, and always has been, very noisy. But a conclusion on whether it is any noisier now than it was prior to the road improvements has to depend upon evidence of subjective observation. Mr Barrett said that the greater volume of traffic permitted by the scheme, and the increased speed of buses on the new bus-lane amplified noise and vibration within the subject property. The council produced traffic flow statistics from 1993 and 2003, so they are pre- and post-scheme. They are, I must say, surprising in that over a period of 10 years, it appears, peak hour flows have actually reduced whereas, in general terms, vehicle numbers on the roads have increased very dramatically. However reliable those figures are (and I do not think that, realistically, they can assist much in determining the situation immediately pre- and post-scheme due to the time scale involved), there is, in any event, no reason to conclude that any additional traffic is using the road than was the case previously. The scheme was not re- routing additional traffic past the house; it was, as I have said, purely a device to improve traffic flows and safety.[29]As to the speed of buses approaching the roundabout, I accept what Mr Wardill says in that there is no room for a bus leaving the bus stop (which is still in its original position) to gain much speed before it reaches the new traffic lights. Even if they are on green and there is thus no restriction upon entering the roundabout, and even if the bus does not stop at the bus stop, I am not persuaded that any marginal increase in noise and vibration could be perceptible from within the subject property.[30]During the course of my inspection I noted that the new left-hand lane (the one that brings the road 1.8 metres nearer the subject property) appears to be a filter-lane, rather than a dedicated bus lane. This appeared to be used solely by vehicles intending to turn left into Wrythe Lane and the percentage of cars using it (no buses arrived whilst I was there) certainly seemed to accord with Mr Wardill’s suggestion that only about 15% of the total vehicles approaching the roundabout use it. I therefore accept the point made by the council that about 85% of vehicles passing 343 Bishopsford Road will now be very slightly further away, with the two outside lanes having been moved to accommodate about half of the new filter lane. However, this is of no significance as, in my judgment, any effect will be minuscule to the point of imperceptibility. This goes also for the alleged increase in fumes. Similarly, any effects of increased noise from sirens on emergency vehicles (if indeed there is any) would not, in my view, affect the value.[31]I also accept the council’s point regarding buses using the centre lane, as the route does not pass along Wrythe Lane. Therefore, I cannot perceive of any circumstances that would create noticeably more artificial light entering the first floor bedroom window of the property. It follows therefore that I find the claimant’s case unproved and determine that there are no physical factors emanating from the use of the highway, and having their source within it, which have resulted in any diminution in value to the subject property as of 31 January 2001. No compensation is, therefore, payable. 9[32]The matter having been determined under the Simplified Procedure, and there being, in my view, no exceptional circumstances to justify my doing otherwise, I make no order as to costs. DATED 28 October 2005 (Signed) P R Francis FRICS 10