MR & MRS M U H MOHAMMED v YORK CITY COUNCIL LCA/12/2004

UPPER TRIBUNAL
LANDS CHAMBER
LCA/12/2004Case No LCA/12/2004
Between
MR & MRS M U H MOHAMMEDApplicantYORK CITY COUNCILRespondent
Before
P R Francis FRICSDate 27 January 2005Property: 250 Shipton Road, Rawcliffe, York, YO30 5RZCatchwords: COMPENSATION – Land Compensation Act 1973 Part 1 – residential dwelling – claim for injurious affection caused by the effects of noise, vibration, smell, fumes and artificial light following construction of a new road junction and associated road widening adjacent to the property – compensation nil
[1]This is a reference, originally listed to be heard under the Simplified Procedure (Rule 28, Lands Tribunal Rules 1996), but subsequently transferred by agreement between the parties to the Rule 27 Procedure – determination by written representations. The claimants, Mr & Mrs M Mohammed, are the freehold owners of 250 Shipton Road, Rawcliffe, York (the subject property) which, they allege, has been diminished in value by 4% (£4,400) following the construction and bringing into use of a new junction and associated road widening on the main A19 Shipton Road virtually opposite their property. The traffic light controlled junction provides access to and egress from a new Park and Ride facility. City of York Council, the compensating authority, say that the claimants have failed to prove that there has been any depreciation, but even if there has been, no causal connection has been established between it and the physical factors alleged.[2]For the claimants I have considered the written statement of Mr Manzoor Mohammed, and the expert witness report and representations of Mr Dale Clarke BSc MRICS of Clarke & Co, Chartered Surveyors of Thirsk, North Yorks. For the compensating authority, I have read the council’s representations together with the expert valuation report of Mr Ben Hudson MRICS FNAEA of Hudson Moody, Chartered Surveyors of York and the Air Pollution Monitoring Report, Noise Assessment Report and Table of Traffic Flow Changes referred to. Claimants’ Case[3]Mr Mohammed said that he, his wife and three children had lived at the subject property since 1993 at which time it overlooked open fields on the other side of the A19 Shipton Road to which it fronts. The road was always busy, but prior to the construction of the Park and Ride scheme, traffic had been free-flowing past the house. The property was built in 1947 as a 3 bedroom brick and tile roofed semi-detached house, but had subsequently had a two-storey extension added to provide 5 bedroom accommodation. The Park and Ride scheme, which had been completed and opened to the public on 13 February 2000, has its access to Shipton Road virtually opposite the house, and provides 750 car-parking spaces. There is a frequent bus service to the City Centre, operating every 10 minutes between 7 am and 7.30 pm and every 15 minutes then until 8.15 pm Monday to Saturday including Bank Holidays. During peak hours, and particularly between 4 pm and 6.30 pm, there is considerable traffic congestion and at times the traffic is backed right up to the roundabout at the junction of the outer ring road.[4]The provision of this facility, Mr Mohammed said, had made a considerable difference to his and his family’s enjoyment of their home. Firstly, the traffic noise is much more noticeable. Whereas previously there had been a constant drone of vehicles passing the house, the sound of cars, lorries, buses and motorcycles slowing down, stopping and then accelerating away, and changing gear as they negotiate the new traffic lights was much more noticeable. There was also considerably increased vibration, especially from large vehicles. The fumes are also now much worse, meaning that during the summer months the front windows to the house have to be kept shut and enjoyment of the front garden is substantially reduced. Light 3 pollution has increased, this being most obvious in the winter months. Lights from vehicles exiting the Park and Ride facility and waiting at the lights to turn right into York shine into the bedroom windows (the house being set at a lower level than the road junction). The lights on the bollards and the additional lamp-posts at the junction had also increased the intrusion. Finally, Mr Mohammed said that the build up of dust on external window ledges and the garage doors was more frequent and windows had to be cleaned more often.[5]Mr Clarke is a chartered surveyor who specialises in compensation matters, principally in North Yorkshire, Teeside and County Durham. He said that whilst this was his first Part 1 claim in York, he is familiar with the area and the Park and Ride scheme, the subject of this reference. He inspected the subject property on 15 August 2001 and stated it to have two reception rooms, a large kitchen/diner, cloakroom and integral single garage at ground floor, and 5 bedrooms and a bathroom at first floor. The house has an overall area of 136 sq m and there are gardens to front and rear together with driveway parking for two cars. Gas central heating is installed, and there are double glazed replacement windows throughout.[6]Confirming that the new junction and associated works first came into public use on 13 January 2000, Mr Clarke said it was agreed that the valuation date under section 3(2) of Part 1 of the 1973 Act was 12 months hence – 13 February 2001. The extent of the works, which had been carried out by York City Council as highway authority, were shown on their plan PC/A1/102005 and included the installation of traffic lights and turning lanes within the existing carriageway, together with the construction of a new junction and associated filter and acceleration lanes.[7]In considering whether or not there was evidence to support a claim that the subject property had been diminished in value as a result of use of the works, Mr Clarke said he carried out research in relation to property sales in the area. Comparables were limited, and he said he was only able to cite two transactions on Shipton Road that had occurred between 1998 and 2002 where written confirmation of the terms were available. However, he was aware of a third sale in that period (264 Shipton Road) but had been unable to obtain written confirmation of it.[8]The details were: 258 Shipton Rd. Un-extended 3 bed semi-detached. 106 sq m. Sold 25/5/98 at £66,500. 264 Shipton Rd. Un-extended 3 bed semi-detached. 106 sq m. Sold 28/5/99 at £74,500. 232 Shipton Rd. Un-extended 3 bed semi-detached. 106 sq m. Sold 23/8/02 at £97,000. As to 232, the selling agent had confirmed that in his view the house had an actual value of about £95,000 when it was first offered to the market in January 2002 at £99,500 and it needed £8,000 to £10,000 spending on it as the first floor was in need of modernisation. Mr Clarke said this gave it a true value, were it in good order, of £105,000 in January 2002 or £86,000 at the sale date. 4[9]According to statistics available on the www.proviser.com website, values in the YO30 postcode area should have increased by 44.5% between 1998 and 2001. This would have made 258 worth £96,000 at the valuation date, that figure being largely in line with the agent’s valuation of 232 a few months later. However, it did not take into account the projected cost of repairs for 232, nor the effects of the Park and Ride scheme. Thus, Mr Clarke said, it appears 232 was in fact overvalued and, in retrospect, this view seems to have been borne out by the market, as the house took 8 months to sell in otherwise active trading conditions. Mr Clarke said that the statistics showed average prices of semi-detached houses in the relevant postcode area had actually increased from £63,745 in 1998 to £131,484 in 2002 – some 106%. This suggested to him, on the basis of the sales that had taken place, that average prices on Shipton Road had risen more slowly than those in nearby streets, this being supported by an analysis that he had provided in correspondence with the council in 2002. That indicated that whilst in 1996 Shipton Road properties had a 12.3% premium over those in Ings View (running parallel with, and immediately behind Shipton Road), by 2001 that premium (based on the sale of 232, adjusted for the cost of repairs against a sale of 32 Ings View in December 2001 at £112,000) had been reversed.[10]It was acknowledged that some of the depreciation which may have been caused by loss of the former view over open fields, and the fact that a large number of nearby houses had recently been flooded when the River Ouse burst its banks, could not be compensated. Mr Clarke said he estimated that the percentage of the overall depreciation attributable to the effects of noise, vibration, smell and artificial lighting was 4% which, on the basis of his valuation of the subject property in February 2001 of £110,000 (which allowed for its larger size) amounted to £4,400.[11]Commenting on the council’s expert’s valuation report, Mr Clarke said that as Mr Hudson had only made an external inspection of the subject property, it was not possible for him to comment authoritatively in comparing it with properties that were being used as comparables. Also, the provision of a list of properties in various streets, including Shipton Road, with no specific addresses and for which asking prices were given, was not helpful and should carry no weight. His information relating to a further sale of 264 Shipton Road in August 2002 “at a figure close to £139,950” is incorrect, in that Land Registry records indicate it was sold in June 2003 for £135,000. As that sale was 3 years after the valuation date it was not, he said, a reliable comparable.[12]Mr Clarke said that as far as the physical factors were concerned, in accordance with the provisions of section 4(2) of the 1973 Act, the predictions that were made in the council’s planning application submitted on 18 September 1997 were relevant. These forecast an increase in traffic intensity of 13% between the roundabout joining the outer ring road and the new site entrance. In fact, the traffic count commissioned by the council showed that there had been an increase in the morning southbound traffic flow of 13.4% and the evening northbound traffic flow of 16.5%, but what actually took place after the valuation date is, of course, of little relevance for the purposes of this claim. Whilst it was acknowledged that a reduction in noise levels had been predicted, that did not take account of peak levels which, according to Mr Mohammed, had increased due to the noise of traffic slowing down, and accelerating away from the new traffic lights; the roundabout at the junction with the outer ring road was far enough away to mean that, by the time southbound traffic, for instance, reached 5 the subject property, it had already reached normal speed and thus noise peaks would have been less. As to air pollution, Mr Clarke said that it was evident from the Air Pollution Monitoring Report commissioned by the council that levels of nitrogen dioxide had increased significantly since the Park and Ride facility had opened. The period of monitoring was 1997 to 2001. Artificial lighting in the area, he said, had also been intensified, despite the council saying that no street lighting improvements had been made as part of the scheme. Also, at the valuation date, the claimants said that the traffic lights caused reflections on the walls in the front bedrooms, although it was accepted that the lights had subsequently had shields fitted. Compensating Authority’s Case[13]In their written submissions, the council said that, for any claim to succeed under the legislation, the claimant had to establish as a matter of fact that depreciation had occurred. If there has been no depreciation, no compensation is payable. If depreciation is proven to have occurred as a matter of fact, then it is necessary to establish a causal connection between it and the physical factors specified in the legislation. Only then can the percentage of depreciation attributable to those factors been considered. In terms of valuation evidence, it was necessary, in the council’s view, for recorded sale prices of comparable properties to be compared with the trend analysis (house price inflation). Such an exercise clearly showed that on the basis of Mr Clarke’s comparables, no such depreciation had occurred.[14]On the question of physical factors, it is the council’s view that the claimant’s evidence on technical matters is wholly impressionistic, and unsupported by any objective appraisal or analysis. For example, the Noise Assessment Impact in fact showed that there had been a reduction of 1.8db(a) on what had been predicted at the time of the planning application in the measurements taken in April 2002, some time after the Park and Ride scheme had been opened. It was also 3.8 dB(A) below the actual readings taken in 1997. The claimants’ allegation that pollution and dust had increased was unsupported by evidence, as was his perception that peak noise levels caused by traffic slowing down and accelerating had also increased. Whilst it was acknowledged that traffic on the A19 is now brought to a stop at the traffic lights, Mr Mohammed had failed to recall that because of congestion generally, traffic on that road was regularly at a standstill prior to the scheme coming into operation. Despite the fact that Mr Clarke had highlighted peak time traffic flow figures in his report, the council contended that on a more balanced two-way traffic analysis, there had only been a 3.6% increase which was consistent with a wide range of other tabulated information concerning traffic flows within the area. Finally, on the subject of light pollution, the council pointed out that Mr Mohammed only mentioned headlights from cars turning right into Shipton Road from the Park and Ride facility. It should be noted, they said, that not only is the subject property offset from the junction (and the claimants appear to have no problem with traffic turning left) but the council’s engineers had confirmed that no additional street lighting was provided in connection with the scheme.[15]It was a fact, the council said, that the subject property is set well back from the A19 behind a service road, a wide grass verge and a mature hedge. 6[16]Mr Hudson is a chartered surveyor, and a partner in Hudson-Moody, Estate Agents and Chartered Surveyors of York. Factors such as the type, size and location of the subject property were agreed. Mr Hudson said that, in considering the claimants’ expert valuer’s suggestion that any former premium that had been enjoyed by properties on Shipton Road over similar houses in, say, Ings Close, had been eroded, he had analysed asking prices of houses in the area between 1998 and 2003. He produced a schedule, and said this clearly showed that no such disparity existed either before or after the construction of the new junction.[17]Mr Hudson said that Mr Clarke’s reliance upon the sale of 232 Shipton Road as indicative of the fall in values in that area was misleading. It was a fact that houses in that area had been seriously flooded in November 2000 (232 being one that was affected), and that would have had a serious impact on property values until such time as the flood defence scheme was completed, and confidence returned. As far as the physical factors were concerned, it had transpired that traffic to the south of the new junction had actually decreased by 5.9% and had only increased by 3.6% to the north since the Park and Ride had come into operation; traffic noise through the daytime had actually reduced, there was no significant increase in air pollution and no additional street lighting had been provided. Mr Hudson said that even if there had been some depreciation in values, there was no evidence that could attribute it to those factors.[18]Mr M J Southcombe, an Environmental Protection Manager with the council, filed copes of the Air Pollution Monitoring Report and the Noise Assessment Report that had been produced in connection with the scheme. Air pollution monitoring, by the use of strategically placed diffusion tubes to check long-term levels of nitrogen dioxide, has been carried out in a number of locations along the A19 from August 1999 to November 2001. Location A80 was the closest to the subject property. The report, which included a number of graphs, concluded that, whilst levels varied widely on a month to month basis, there was no evidence of a clear increase or decrease in pollution levels following the introduction of the Park and Ride scheme.[19]Separate “real time monitoring” of nitrogen dioxide by means of taking samples collected in a chemiluminescence analyser tube, and PM10 (particulates) assessed with a Tapered Element Oscillating Microbalance was undertaken close to the subject property on 3 occasions in 1997, 1998 and 2000. None of these tests showed permitted nitrogen dioxide levels to have been breached and although PM10s were high in 1998 and 1999, relaxation of the PM10 objectives brought about by the Air Quality (England) Regulations 2000 meant they were then easier to meet.[20]In connection with traffic noise, readings had been taken at a point opposite the proposed new entrance to the Park and Ride (equating to a position in front of either 244, 246 or 248 Shipton Road) in connection with the planning application for the scheme. Noise is measured in decibels (expressed as dB(A)) and is defined as the arithmetic average of the values of L10 for each of the 18 1 hour periods between 06.00 and 18.00 hours. L10 (18 hour) is the level of noise exceeded for 10% of the time over a period of 18 hours. The report in which those readings, of 63 dB(A), was dated July 1997. It was predicted that, following the opening of the scheme, noise levels would reduce to 61 dB(A) due to slower vehicle speeds on the Shipton Road created by the new signalised junction. 7[21]The “Assessment of the Impact of Traffic Noise upon the Residents of Shipton Road since the Construction of the Entrance to Rawcliffe Bar Park and Ride” was commissioned by the Transport Planning Unit of the council in respect of a number of 1973 Act claims that had been submitted by residents of Shipton Road following completion of the scheme. It was undertaken at 248 Shipton Road, the house adjacent to the subject property, on 11 April 2002. The readings then were 59.2 dB(A) which is below both the former (1997) level, and the predicted level.[22]Mr Stuart Dalgleish, a Principal Transport Planner with the council produced a Traffic Flow Change Analysis between September 1999 and September 2001 to the north and south of the new junction. It shows the following percentage changes: South of P & R entrance North of P & R entrance % change % change A M Peak N bound +5.3 +2.8 S bound -6.6 +13.4 2 way -1.0 +8.4 PM Peak N bound -6.4 +16.5 S bound -0.7 -2.9 2 way -4.0 +8.2 12 Hour N bound -7.3 +1.7 S bound -4.5 +5.7 2 way -5.9 +3.6 Conclusions[23]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.” 8[24]I consider first the evidence relating to the physical factors for two reasons. Firstly because as the council submitted, rightly in my view, that if there has been any depreciation, there must be a causal connection between it and the physical factors specified in the legislation for compensation to be payable. If either the claim relating to the physical factors is found to be unsupported by the evidence, or I find that even if there is evidence of disturbance caused by increased noise, pollution or artificial lighting, it is not linked to the scheme, then the question of compensation does not fall to be considered. Secondly, as I shall explain later, I found the evidence relating to property values singularly unhelpful and unconvincing.[25]In looking at the evidence on physical factors, I am mindful of Mr Clarke’s comments relating to section 4(2) of Part 1 of the Act which states:
“4 – (2) In assessing depreciation due to the physical factors caused by the use of any public works, account shall be taken of the use of those works as it exists [on the first claim day] and of any intensification that may then be reasonably expected of the use of those works in the state in which they are on that date.”
As I see it, Mr Clarke uses this provision to suggest that it is the predictions in the planning officer’s report, submitted with the planning application for the scheme in 1998, that carry the most weight. Any predictions within the planning application that forecast significant increases in traffic noise, pollution or the effects of artificial lighting are likely to have a depreciating effect on values (due as much to public perception as anything else), in the period between when the application becomes public and when the scheme actually starts to operate. But in my judgment it is evidence that exists on the first claim day, 12 months after the scheme has opened, which must carry the most weight, together with any predictions for increases in physical factors that could then reasonably be expected to take place after that date. It seems to me that there is no evidence which has been submitted in the council’s reports which predicts any further increases in the future.[26]The evidence on noise levels is clear. When the latest assessment was undertaken in 2002, the results indicated that noise levels had, in fact, reduced by some 3.8 dB(A) from the 1997 level, slightly more than had been predicted. Mr Clarke acknowledged this, but said that peaks in noise levels (which were not recorded on the L10 (18 hour) results) had become much more perceptible as had vibration levels. He said that this was due to the fact that traffic slowing down and accelerating away from the new lights was more noticeable than previously, when vehicles travelling past the subject property had been free-flowing. However, the council pointed out that on many occasions during the day, especially in the peak hours, traffic was at a standstill outside the house prior to the opening of the scheme, due to it being backed up from the roundabout junction with the outer ring road. I accept this, and whilst I have no doubt that, on occasions, perceptible peak noise levels may be higher than previously – for instance caused by screeching tyres – I am satisfied from the noise level statistics and the traffic flow analysis (to which I shall turn), that there is no evidence from which I can make a finding that disturbance has increased any more than marginally, let alone sufficiently to warrant the value of the subject property being adversely affected.[27]As to traffic flow, it seems to me that Mr Clarke has been somewhat selective in his comments. It is a fact that the subject property is very slightly offset from the new Park and 9 Ride junction, and is just to the south of it. The Flow Change Analysis produced by Mr Dalgleish shows a reduction in traffic flows south of the junction in all but the northbound AM peak where there has been an increase of 5.9%. A general increase in flows north of the junction is evident but, to me, this appears logical. The Park and Ride is sure to focus traffic in that location, particularly that coming into the city from the north. The fact that traffic flows to the south have, in general, reduced, indicates to me that the purpose for which the Park and Ride was developed is working.[28]Turning now to pollution, although the graphs show that levels of nitrogen dioxide at monitoring station A80 (closest to the subject property) increased significantly between January and April 2001 over the levels in the latter part of 1999 (prior to the opening of the scheme), I do not find this conclusive. Similar peaks were recorded at all the other monitoring stations on Shipton Road and I cannot, therefore, conclude that those results were due to the scheme. As the report said, levels in the winter months are generally higher than in the summer, and in my judgment, the graphs clearly fail to demonstrate any pattern that could conceivably be laid at the door of the scheme, particularly when also taking into consideration the traffic flow evidence. I find the real time monitoring to be similarly inconclusive, and, from the statistics provided, it is certainly not possible to identify any increases that could be said to be due to the opening of the Park and Ride. The claimant’s comments relating to dust and grime on the front of his property I find to be unpersuasive and, in any event, I do not see how that could possibly lead to a diminution in value of his property.[29]This leaves pollution from artificial lighting. The council say that no additional street lighting has been provided, but Mr Clarke is convinced that new, higher intensity lights were installed. Mr Mohammed has also referred to reflections from the traffic lights showing up on the internal walls of his house at night. In concluding, as I do, that even if the street lighting around the new junction is marginally brighter (and it could well have been improved, but not as part of the scheme), it could have little effect upon the subject property, I take into account that the house is not directly fronting Shipton Road. The front wall of 248 Shipton Road is, as confirmed in the noise assessment report, 36.7 metres from the roadside, and from the plans and photographs provided it is clear that the subject property is equally far from the road. It is separated from the road by its own front garden and hedge, a service road, a wide grass verge, and another hedge (maintained by the council). There is also a mature tree in the grass verge between the house and the roadside and although its trunk is not directly between the main front bedroom window and right-turn lane of the new junction, its canopy will, in my view, offer substantial shielding in the summer months.[30]The window to the main front bedroom does almost face onto the new junction, but is offset from the right-turn lane (the lane from where the claimant says headlights can be seen reflecting on the wall). The windows of 248 and 246 are directly opposite. This is the one area where, in my view, Mr Mohammed’s statement might have some merit. Prior to the Park and Ride there was no road opposite the houses on this part of Shipton Road, and reflections from headlights would have only been from traffic passing up and down the main road. However, in my judgment, due to the fact that the house is offset from the actual junction, is set so far back from the road and is well screened, I am satisfied that any increase in headlight reflection must be so marginal as to warrant the question of any diminution in value resulting from it as negligible. 10[31]It follows from what I have said that I consider there to be no conclusive evidence that the subject property has been affected by any of the physical factors referred to in section 1(2) of Part 1 of the 1973 Act. Therefore if there has been any diminution in value, it is not as a result of use of the public works that comprised the Park and Ride scheme.[32]As I have already indicated, I did not find the valuation evidence helpful. It is unfortunate that there have been so few sales of properties on Shipton Road during the relevant period. Those that did take place, and recorded in Mr Clarke’s evidence, were during a period of exceptionally rapid house price inflation. As Mr Clarke said, the Proviser trend analysis for postcode YO30 shows that average prices of semi-detached houses grew by over 100% in the period between 1998 and 2002. No other houses on this part of Shipton Road were sold in 2001 and in any event, the subject property was not an average semi-detached house – it having been extended by over 30% in terms of floor area. It is clear that 232 Shipton Road, sold over a year after the valuation date, had suffered from flooding and, as a separate issue, was in need of fairly major expenditure to its first floor accommodation. The exceptional flooding that occurred in November 2000 must, in my judgment, have had a significant effect on house prices in the area affected, and thus I cannot see how the evidence in respect of the sale of 232 can be of assistance. I note from the plan provided by Mr Clarke that Ings View was not flooded and prices there will not therefore have been affected to the same degree. Mr Clarke relied upon an adjusted analysis of the sale of 232 to prove an alleged “reversal” of premiums between Ings View and Shipton Road, but upon so little evidence I do not consider his argument proved.[33]Mr Hudson relied entirely upon asking prices and I agree with Mr Clarke’s rebuttal statement that little weight should be attributed to such evidence. I also note that Mr Hudson has not inspected the subject property internally. For all these reasons, I conclude that even if I had found that the subject property had been affected by the physical factors for which compensation would be payable under the act, I am not satisfied that the claimants’ valuer’s argument that there had been a substantial diminution in value to it is justified by the evidence. As a final comment, I note that Mr Clarke felt that, of the total alleged diminution, a reduction 4% of the overall value was attributable to the physical factors. He gives no reasons to support that assumption.[34]This decision determines the substantive issues in this reference, and I confirm that no compensation shall be payable to the claimants. The parties having originally elected for this reference to be heard under the Simplified Procedure, and in view of the provisions of Rule 28 (11) of the Lands Tribunal Rules 1996, I make no award as to costs. Rights of appeal under section 3(4) of the Lands Tribunal Act 1949 and Order 61 rule 1(1) of the Civil Procedure Rules will come into operation from the date of this decision. DATED: 27 January 2005 (Signed) P R Francis FRICS 11