Livesey v vLancashire County Council [2014] UKUT 0501 (LC)

IN THE MATTER OF A NOTICE OF REFERENCE
UT Neutral citation number: [2014] UKUT 0501 (LC)Venue BETWEEN ANTHONY LIVESEY Claimant, and, LANCASHIRE COUNTY COUNCIL Compensating Authority, Re: 77 Preston Road, Chorley, Lancashire, PR6 7AX, Before: N J Rose FRICS, Sitting at: Manchester Immigration and Asylum Centre, 1 st Floor, Piccadilly Exchange, 2 Piccadilly Plaza, Mosley Street, Manchester, M1 4AH, Gary Grant , instructed by Oglethorpe Sturton & Gillibrand LLP, solicitors of Lancaster for the claimant, Alan Evans , instructed by Rob Cathey, solicitor, Environment & Resources Section, County Secretary and Solicitor’s Group, Lancashire County Council, for the compensating authority, © CROWN COPYRIGHT 2014, The following case is referred to in this decision:, King and Preselo v Dorset County Council [1997] 1 EGLR 245, The following decisions were also cited:, Nesbitt v National Assembly for Wales LCA/139/2001 LT, Wolff and Others v Secretary of State for Transport LCA/79/2006 LT, Toms v Secretary of State for Transport [2011] UKUT 45 (LC), Robertson and Spark v Manchester Airport Plc [2010] UKUT 370 (LC), Lanceley v Wirral Borough Council [2011] UKUT 175 (LC), DECISION, Introduction
Between
LiveseyvLancashire County Council
Date 3 September 2014
[1]This reference relates to a claim for compensation under Part 1 of the Land Compensation Act 1973 (the Act) by Mr Anthony Livesey of 77 Preston Road, Chorley, Lancashire (the subject property). The responsible authority under the Act is Lancashire County Council. The public works, the use of which gives rise to a claim for compensation for depreciation in the value of Mr Livesey’s freehold interest, consist of a programme to upgrade the roundabout and junction of the A6 and A674. The scheme works commenced on 4 July 2005 and were certified as completed on 19 March 2006. The relevant valuation date is 19 March 2007.[2]Mr Gary Grant of counsel appeared for Mr Livesey, whom he called to give factual evidence. In addition Mr Grant called expert evidence from Mr Roger Hardwick MRICS, who has practised throughout the Central Lancashire area for 27 years. Counsel for the compensating authority, Mr a lan Evans, called evidence of fact from Mr Phillip Wilson BSc. Mr Wilson is employed by the compensating authority as project manager for major highway design and construction schemes. In the capacity of principal engineer he led the team designing and implementing the construction of the highway improvement works on the existing network – including the upgraded roundabout junction - in compliance with planning conditions for the redevelopment of the former Royal Ordnance Factory, Chorley (ROF). Mr Evans also called expert evidence from Mr Philip Jeffrey BSc, MRICS, who has been dealing with claims in Lancashire under Part 1 of the Act on behalf of the compensating authority since 1993.[3]In March 2014 Jacobs UK Limited (Jacobs) prepared reports on noise and vibration, traffic analysis and street lighting and air quality resulting from the relevant highway improvement works. Jacobs were instructed jointly by the parties, and their findings and conclusions are agreed within the parameters set by the authors.[4]Accompanied by the two experts I inspected the interior and exterior of the subject property on 17 September 2014, followed by external inspections of a number of properties which had been cited as comparables. Facts[5]Having regard to a statement of agreed facts and issues and the evidence I find the following facts.[6]The subject property is situated approximately one mile to the north of Chorley town centre. It comprises a substantial detached house of rendered brick or block and slate construction. The ground floor contains entrance hallway with cloaks cupboard and WC, lounge, dining room, sitting room, snug, kitchen, utility room and shower room. On the first floor there are three double bedrooms, a study/fourth bedroom, a family bedroom, separate WC and linen room. There are two attic rooms which are accessed via a pull down ladder. The property is centrally heated and double glazed.[7]The buildings are set within grounds that are part landscaped, with an area of trees and bushes to the road frontage and a patio area and mainly lawned gardens to the rear. There is a substantial detached garage/workshop located immediately to the south of the house. There is a separate but contiguous area of land, fenced off yet accessible from the house and grounds. This is pasture land with a few mature trees and pond. The area of the grounds and gardens is approximately 1.34 acres and that of the contiguous pasture/paddock land is 4.0 acres.[8]The property is located on Preston Road at the roundabout junction of the A6 and the A674, which is the connecting road to the M61 Junction 8. The scheme works were undertaken as a result of the comprehensive redevelopment of the ROF site and the creation of Buckshaw Village, providing a large number of homes, business and industrial parks, a school, a supermarket and a railway station.[9]The subject property is adjacent to the altered carriageway and access is gained directly off it. The approach road to the roundabout from the south was widened by 4m and moved 6.5m closer to the subject property. There are now three lanes on the approach road from the south, whereas there were previously only two. There are now three lanes on that section of the roundabout in front of the claim property (one dedicated lane heading north on the A6 and two lanes navigating the roundabout). There were previously two lanes around the whole of the roundabout. The nearest point of the building is approximately 41m from the edge of the carriageway.[10]Traffic signals have now been introduced at the entry points to the roundabout and at points on the roundabout itself. Traffic on the roundabout is now stopped for short spells until a change of traffic lights. Evidence for the claimant Mr Livesey[11]Mr Livesey said that, apart from a short break, he had lived at the subject property continuously since 1963. He purchased it from his late mother’s estate in the year 2000.[12]In his first witness statement dated 19 March 2014 Mr Livesey said that he had noticed a significant increase in the amount of traffic noise on the roundabout since the works were completed. This was particularly the case at rush hours on weekdays. The compensating authority had commenced repair works on Friday 12 July 2013. These were undertaken during the evenings when he was at home and continued into the early hours of the following morning. They continued for all the following week. The noise flowed into his property, disturbing the enjoyment of his leisure time. The decision to complete these works at night demonstrated that a considerable amount of traffic used the road during the day and that unnecessary obstruction would result if the works were carried out then.[13]Mr Livesey produced a copy of the Jacobs report on noise and vibration. He also produced a DVD, which I viewed during the hearing, and which he had commissioned in February 2013. It showed the noise and headlight effects on the subject property of traffic movement at the roundabout junction. Mr Livesey said that passing vehicles produced sooty deposits on the stone capping of the front boundary wall and on the foliage of vegetation along that wall and the front driveway. These deposits had substantially increased since the completion of the works.[14]Another effect of those works was to increase the number and height of the street lights, spilling light further into the subject property. Moreover, the light from the traffic signals shone down the driveway and through the front windows on both floors of the house. The light also spilt into the open plan hallway, reflecting through the interior of the property. Furthermore, light from traffic headlights shining into the house had become much worse, because traffic on the A674 now parked two abreast, whereas previously there had been only one lane.[15]Mr Livesey suggested in his first witness statement that the discharge of water on to his driveway which occurred during heavy downpours on the A6 northbound carriageway had increased owing to the failure of the compensating authority to replace the dropped kerb. It was agreed at the hearing, however, that this matter was not relevant to the determination of compensation under Part 1 of the Act.[16]In a second witness statement dated 9 July 2014 Mr Livesey said that the vast majority of the traffic from the 2005/2006 road alterations which were completed to service the Buckshaw Village/Matrix Park development and to access the M61 motorway network converged on the roundabout in front of his house.[17]He had moved into the bedroom at the rear of his property, as he was no longer able to use the front bedroom because of the constant drone of traffic, stopping and starting on the roundabout. The noise of air brakes of heavy vehicles and the constant flickering of headlights and traffic light sequences throughout the night also made it difficult to sleep in the front bedroom. He now had to close the rear bedroom door, as light pollution flickered on the walls of the upstairs landing.[18]In the summer months he liked to sleep with the windows open, but he could still hear the drone of traffic when he was at the rear of the house as HGV vehicles travelled throughout the night. On waking in the morning he was greeted by constant revving of engines and screeching of brakes due to the volume of extra traffic using the junction. The additional traffic noise was a cause of disturbance when he opened the window to let the steam out after taking a shower on the ground floor and when he went outside to let the poultry out. He was no longer able to enjoy his breakfast outside on the patio in the summer mornings, or to spend time in the garden or relaxing on the patio in the summer evenings.[19]As the evenings wore on there was an increased volume of heavy goods vehicles (HGVs) passing the end of the subject property from the M61 travelling north on the A6. These either braked to stop at the roundabout or accelerated away. As the exit from the roundabout was on an incline the noise and vibration and fumes emitted by the HGVs was accentuated. Similarly, vehicles using the A6 southbound to access the M61 network braked on the approach to the roundabout. There was noise of either squeaking brakes or HGV airbrakes. These vehicles sometimes had objects rattling about in the back. Mr Livesey said that all this added to the disturbance to the peace of his home life.[20]Throughout the day and night he could hear sirens wailing. Prior to 2006 the emergency services were able to negotiate the roundabout junction without the use of sirens. Owing to the constant congestion around this junction they now switched their sirens on long before the junction and they remained on, until accessing the motorway or passing the junction of Buckshaw Avenue opposite the Sea View public house.[21]At the end of the evening he would walk round his property, check the livestock, and secure the building before retiring to bed. There was still a constant flow of HGVs. When in bed, he had to close the windows to keep the noise out.[22]During weekends in the summer months, especially in good weather, he liked to entertain family and friends and have barbecues outside. Again there was a constant drone of traffic and emergency sirens disturbing the tranquil gardens around his home. Visitors and friends had remarked just how much the tranquillity of the subject property had changed over the last few years. If he had guests, none of the parents would sleep in the front bedroom facing the road because of the noise and flashing lights, so the children were forced to stay there.[23]In cross examination Mr Livesey agreed that, whilst traffic between the new development and the M61 converged on the roundabout in front of his house, the same consideration did not apply to traffic to and from the M6. Mr Hardwick[24]In his expert report dated 18 March 2014 Mr Hardwick referred to the conclusions reached by Jacobs in their various reports prepared on the instructions of both parties. From his own observations he concluded that there had been a significant increase in vehicle numbers using the roundabout and that the traffic controls had resulted in added noise, vibration and fume emissions from vehicles stopping and starting. He produced photographs which, he said, showed that light pollution into the property had increased.[25]In Mr Hardwick’s opinion the market value of the subject property without the “physical factors” - or its “switched off” value - was £790,000, of which £120,000 was attributable to the paddock. This valuation was based on his local knowledge and the prices realised on seven sales to which he referred.[26]In assessing the diminution in value, Mr Hardwick referred to two properties where compensation under Part 1 had been paid following road works carried out in connection with the ROF redevelopment. The first, 3 Preston Road, Whittle-le-Woods, had been offered for sale on the open market in July 2007 at an asking price of £285,000. Mr Hardwick had been involved with the property and considered the quoted figure to be excessive. He understood that compensation was agreed at £29,000, representing more than 9.5 per cent of the switched off value.[27]Mr Hardwick added that he was aware of another claim resulting from the same road improvement scheme. This was Stansfield House Farm, Euxton Lane, Chorley. Although he was not aware of the precise details, he understood that the claim had been settled at a higher percentage level than had been offered to Mr Livesey. Mr Hardwick also relied on the Lands Tribunal decision in King and Preselo v Dorset County Council [1997] 1 EGLR 245 to support the proposition that quality properties suffered a more than proportionate loss of value than less expensive properties.[28]Mr Hardwick considered that the comparables relied on by the compensating authority to support their suggested diminution in value were unreliable, because they were far below the levels agreed for 3 Preston Road and Stansfield House Farm.[29]In Mr Hardwick’s view the most important consideration when offering a house for sale was to give a good first impression, so that potential purchasers would be prepared to spend time viewing the property. In his view the noise, fumes, smell and artificial light from the use of the road junction would have had a very negative effect on the attractiveness of the subject property. He thought that if the property had been offered for sale on the relevant valuation date, it would have been extremely difficult to persuade a potential purchaser to inspect it.[30]Although Part 1 claims were often settled by agreeing a percentage of the switched off value, this was not particularly accurate or scientific. Mr Hardwick accepted that the agreed compensation could be analysed in terms of a percentage reduction. However, he approached the problem by imagining the thought processes of a hypothetical purchaser. He considered such a person would offer substantially less than the switched off value, because of the impact of the current use and the future intensification of traffic at the roundabout junction. He assessed the resultant diminution in value at £100,000. Mr Wilson[31]Mr Wilson produced a witness statement dated 27 August 2014 in response to Mr Livesey’s additional witness statement. He considered that Mr Livesey’s assertion that the vast majority of the traffic from the road alterations in 2005/2006 converged on the roundabout in front of the subject property was wrong. Highway improvements were also undertaken on the route west out of Buckshaw Village and Matrix Park, leading to the M6 at junction 28. (Mr Wilson explained that references to Matrix Park were to the first phase of commercial development at Buckshaw Village. The residential section of the development was referred to as Buckshaw Village).[32]Mr Wilson said that the centre of Buckshaw Village was broadly equidistant from junction 28 of the M6 and junction 8 of the M61. Matrix Park was significantly nearer to junction 28 – approximately 1 mile – than it was to junction 8 – approximately 3 miles. In a northerly direction, the M6 and M61 junctions served Buckshaw Village and Matrix Park equally, whilst in a southerly direction the choice of motorway would be determined by origin or destination.[33]Mr Wilson challenged the details given by Mr Livesey as to the nature and height of the pre-scheme lighting columns. He accepted that the current lighting columns were higher than before the works and in different locations. However, he said, the street lighting was of an improved specification in terms of its minimal light spill lanterns. The lighting was laid out to illuminate the footway and carriageway, not the adjacent land. The pre-scheme lanterns had a significant amount of light spill and were likely to have illuminated more of the subject property’s garden.[34]Mr Wilson said that the vegetation in the garden of the subject property had been significantly cut back since the works were carried out, and not by the compensating authority. The pre-scheme vegetation would have provided a far greater degree of screening than that currently on site. In any event, the nearest point of the house was some 41m from the edge of the carriageway, and light spillage from the street lamps would not travel that distance.[35]Mr Wilson considered that Mr Livesey was wrong to link the increased volume of traffic directly to the Buckshaw Village development. Since the works were carried out the borough of Chorley had undergone disproportionate growth, and much of the resultant traffic needed to use the stretch of highway adjacent to the subject property as it was the main northern exit from the town. Mr Jeffrey[36]In his expert report dated 19 March 2014 Mr Jeffrey accepted that the introduction of traffic signals at the entry points to the roundabout and at points on the roundabout itself had resulted in a greater perception of noise. This was particularly the case at quieter times, when the traffic signals were more operational and vehicles, especially lorries, had to stop and start more frequently. Moreover, although headlights from vehicles had always shone into and across the site of the subject property, there was now more headlight intrusion due to the slight realignment of the carriageway. However, Mr Jeffrey considered that the new street lamps did not diffuse as much light into the environment as the older lamps and spillage would not reach Mr Livesey’s residence.[37]In order to arrive at the switched off capital value Mr Jeffrey referred to seven comparables – six open market sales and one settlement figure. He considered that this evidence showed that the relevant value of the subject property was £659,000. That figure did not include anything for what Mr Jeffrey termed “the adjacent but physically separate paddock area.” He did not consider that the use and enjoyment of that area had been affected by the physical factors and he had therefore not taken it into account in assessing the diminution in value of the house and immediate grounds. In answer to a question from me Mr Jeffrey said that the paddock was worth £20/25,000 per acre if it was attached to the house, and £15,000 per acre if sold separately.[38]Mr Jeffrey considered that the compensation payable under Part 1 should be arrived at by applying to the switched off capital value an appropriate percentage “which is derived from comparing the scheme under consideration with other broadly comparable schemes.” He produced details of settlements where he felt the circumstances were sufficiently similar to justify applying them to the subject property. Two of Mr Jeffrey’s comparables were adjacent to the same roundabout as the subject property. 162 Preston Road was a semi-detached house. Compensation representing 5% of the switched off capital value was paid to reflect the increase in the amount of noise, fumes and vibration. 2 Hazel Grove was a detached house. Compensation equal to 4% of the switched off capital value was paid.[39]Mr Jeffrey’s also relied particularly upon settlements for 4 Watkin Lane, Lostock Hall, Preston (compensation agreed at 6.5%); and 99 Hennel Lane, Walton le Dale, Preston (compensation agreed at 5%).[40]Mr Jeffrey considered that the 162 Preston Road comparable provided very good evidence in that it adjoined the same roundabout both before and after the scheme. The roundabout was widened to create extra lanes and was brought marginally closer to the property. The introduction of traffic signals had resulted in a change in traffic movements in the immediate vicinity and the effects of the physical factors were felt in the front and rear rooms and the rear garden. In Mr Jeffrey’s opinion these effects on 162 Preston Road were greater than in the case of any other of the properties adjacent to the roundabout.[41]Mr Jeffrey said that 2 Hazel Grove was also adjacent to the widened roundabout where there had been an increase from two to three lanes. He considered that the change in the amount of traffic in front of 4 Watkin Lane, and therefore the extent of the resultant physical factors, was in excess of those produced by the claim scheme. Although the boundary of 99 Hennel Lane abutted the highway boundary, the house was further from the physical factors, although they had moved closer to the property.[42]Mr Jeffrey said that Mr Livesey had drawn his attention to the settlement at 3 Preston Road, approximately one mile from the subject property. The road giving rise to the claim in that case was Buckshaw A venue, a new road leading from Preston Road into the Buckshaw Village development. Compensation was awarded in that case based on the effect of having a new road built to the rear of the property, rather than changes to the existing carriageway at the front. The two cases were therefore not comparable. Mr Jeffrey added that Mr Livesey had also referred to the settlement on Stansfield House Farm on Euxton Lane, approximately one mile from the subject property. Euxton Lane, previously a two lane road, was altered to form a junction into a business park and college. The resultant road layout was a five laned, signal controlled junction.[43]Mr Jeffrey considered that the diminution in value of the subject property as a result of physical factors caused by the use of the adjoining road works was £35,750. He expressed his reasons for this opinion as follows:
“Since the completion of the works the traffic has increased and is expected to increase further in future and it is less predictable as a result of the new signal controls that have led to the deceleration and acceleration of vehicles and the use of sirens by emergency vehicles. The Noise Assessment findings are that, although noise level increases are minor, they will be perceptible to the occupant. Light and traffic pollution will also have increased in the switched on scenario although my reading of the reports is that the effects, whilst being perceptible, are not significant. The claimant mentions that since Buckshaw Village/Matrix Park opened, heavy goods vehicle traffic accessing those locations via the Hartwood roundabout during the night has particularly increased. The Traffic Analysis report does not directly refer to this. I have no data to prove or disprove the claimant’s assertion but think it more than likely that night time traffic by HGVs will have increased. In King and Preselo v Dorset County Council [1997] 1 EGLR 245 the Lands Tribunal accepted that prestige properties suffered greater diminution in value as a result of the effects of the physical factors. The claim property is considered to be a quality property albeit located adjacent to a busy road junction. The house is set back within the boundaries of the property (the nearest part of the house is approximately 40m from the edge of the altered carriageway compared to 15m in respect of 162 Preston Road) and the intervening land contains trees and shrubs which will partially act to lessen the effects. In the light of the above in my opinion the percentage diminution attributable to the use of the altered road should be broadly similar to 162 Preston Road but slightly less to reflect that there are fewer lanes and that the claim property is set back from the site frontage and would assess this at 4.5%. Mindful of the King and Preselo decision I would allow for a further 1% to be added. VALUATION Switched off value of house £650,000 Diminution in value 5.5% Compensation therefore £35,750”
Discussion[44]There are three principal issues in this reference. Firstly, whether the additional paddock land has suffered any diminution in value as a result of the relevant physical factors. Secondly, the switched off capital value of the subject property. Thirdly, the extent of the diminution in value.[45]I start with the paddock. Mr Jeffrey’s view was that the physical factors would not depreciate the value of this area. Mr Hardwick disagreed because: the paddock is contiguous to the house and its garden and is an integral part of the single unit; it is within the Green Belt and would therefore not be sold separately; and the presence of additional adjoining land enhances the value of property significantly. In the light of the evidence and my site inspection I am satisfied that the value of the paddock has been reduced to the same extent as the remainder of the subject property.[46]I turn to the switched off value. The experts were not far apart in their valuations of the house and its immediate curtilage of approximately 1.34 acres. Mr Hardwick’s valuation was £674,871, which he effectively rounded down to £670,000, and Mr Jeffrey’s figure was £650,000. Mr Hardwick is more experienced in valuing residential property in the Chorley area. He is also, as I shall explain, more aware of his duty to the Tribunal as an expert witness. I accept his figure. I also accept his valuation of the paddock at £120,000. I find that the switched off value of the subject property was £790,000.[47]The third, and most significant issue, is the extent of the diminution in value suffered by the subject property. In the light of the evidence it is clear that by far the most serious of the physical factors resulting from the use of the new road layout are noise and light intrusion.[48]The findings of Jacobs on these factors were accepted by the parties. The Jacobs conclusions on noise and vibration were summarised in section 6 in these terms:
“Noise level predictions have been undertaken at 77 Preston Road under defined scenarios in order to demonstrate the likely change in road traffic noise resulting from the road improvement works on the A6 (Preston Road)/A674 roundabout. Noise level predictions have been undertaken in accordance with relevant guidance. Furthermore, the noise assessment is considered to represent a worst case approach due to the use of 1996 traffic flow data to define the “Baseline scenario”
. The noise level predictions demonstrate a noise level increase between the “Baseline scenario” and with scheme scenario of up to 1.4dB in 2014. Such a noise level increase is considered ‘Minor’ in terms of the guidance provided by DMRB (HD 213/11) magnitude of change methodology. Nevertheless, the noise increase has the potential to be perceptible. In the longer term (2019) a noise increase of up to 1.6dB is predicted, represented as a ‘Negligible’ increase in accordance with the DMRB guidance. Measured ground borne vibration levels demonstrate that current levels of traffic induced vibration are unlikely to be perceptible for the residents of 77 Preston Road.”[49]The consultant’s conclusions on street lighting, in section 5 of the relevant report, were as follows:
“ 5.1 Lighting System intrusion As part of the general improvements to the roundabout, the street lighting system was replaced at the same time. The lighting system through the junction, along adjoining sections of Preston Road and along Millennium Way is provided by 12 - metre columns with 2-metre projecting arms and 250watt lanterns. As part of the signalling scheme, these columns replaced a similar number of older columns, although the individual positions changed as a result of the changed carriageway layout. The setting back of the carriageway meant that the closest column to number 77 is now approximately 20 metres from the nearest part of the property whereas previously the nearest location was approximately 27 metres distant. As lanterns are designed to throw light onto the highway it will not necessarily be the closest columns which throw the most light into the claimant’s property, but those around the junction and on Preston Road either side, as these will throw light sideways onto the claimant’s property. Unfortunately, there are no records of the lighting standard prior to the improvement, in terms of height of columns and lantern intensity. As a result, it is not possible to give a quantitative assessment of the change in light intensity. 5.2 Light intrusion from Traffic Owing to the 30mph speed limit and the high level of street lighting all drivers at night would be using dipped headlights. Because the driveway to number 77 comes out directly onto the roundabout island, there is no position at which a passing vehicle is pointing directly down the driveway. However, vehicles negotiating the southern arc of the roundabout, between Hazel Grove and Preston Road, will cast some light on part of the north-east frontage of the building, from a distance of approximately 40 metres. In that the circulatory carriageway has been relocated about 2.5m northwards compared to the original roundabout, the angle of traffic around this southern arc is slightly ‘straighter’ in relation to the driveway and building than previously and so headlight intrusion from vehicles would be slightly increased, though brief and indirect. However, given the high level of ambient lighting the perception of individual vehicle headlights, in both the ‘Before’ and ‘After’ scenarios will be small.”
[50]In summary Jacobs concluded that, on a worst case scenario, the noise level increase was minor but potentially perceptible in the short term, and this effect would decline over time. There would be a slight increase in headlight intrusion, but Jacobs were unable to assess the extent of the change in intrusion from the new street lighting system because of the absence of records.[51]As I have said, these conclusions were agreed by the parties and I accept them. I also accept Mr Livesey’s evidence that in his perception the changes to the street lighting have resulted in a significant increase in light intrusion to the subject property; that the increased traffic at the junction has led to a much greater use of emergency sirens and corresponding disturbance; and that the extent of sooty deposits on his vegetation has increased significantly.[52]With those conclusions in mind I turn to the evidence of the valuation experts on the resultant diminution in value. Mr Hardwick’s figure was £100,000. Although it was arrived at in a robust fashion in the light of his experience, it is in fact equivalent to 12.65% of his switched off value. I am satisfied that this assessment represents the honest opinion of an experienced valuer. Nevertheless I have come to the conclusion that it includes an allowance for two factors which do not qualify for compensation under Part 1. Those factors are, firstly, the inconvenience resulting from the provision of an electronic device which permits Mr Livesey to stop traffic on the roundabout. The second factor is the increased discharge of water onto the subject property during heavy rainfall. If these two matters are left out of account, Mr Hardwick’s evidence points to a reduction in value significantly less than 12.6%.[53]I now consider the settlement evidence whose existence was drawn to the Tribunal’s attention by Mr Hardwick, namely 3 Preston Road and Stansfield House Farm. At first Mr Jeffrey was reluctant to provide full details of those settlements. Following a firm indication on day one that I wanted such information, on the following day Mr Jeffrey produced a note summarising the position on Stansfield Home Farm, together with a copy of the expert report he had prepared for the planned Lands Tribunal hearing on that property. Mr Jeffrey also provided certain information on 3 Preston Road, but it was extremely brief and I agreed with Mr Grant’s submission that more details were needed to enable me properly to understand that settlement.[54]In response Mr Evans undertook to provide a copy of the report that Mr Jeffrey had submitted to the compensating authority, explaining the basis of the settlement on 3 Preston Road and that was subsequently sent to the Tribunal. However, Mr Evans sought to explain Mr Jeffrey’s tardiness in supplying these details on the grounds that 3 Preston Road was not one of Mr Jeffrey’s comparables. It is not clear whether that suggestion was made after consulting Mr Jeffrey, but it was quite wrong. Mr Jeffrey’s report properly included a declaration that:
“I confirm that my report includes all facts which I regard as being relevant to the opinions which I have expressed and that attention has been drawn to any matter which would affect the validity of those opinions. I confirm that my duty to the Upper Tribunal (Lands Chamber) as an expert witness overrides any duty to those instructing or paying me, that I have understood this duty and complied with it in giving my evidence impartially and objectively and that I will continue to comply with that duty as required.”
[55]Stansfield House Farm and 3 Preston Road are both within about a mile of the subject property. The compensation paid to their owners under Part 1 resulting from neighbouring road works is clearly relevant to the assessment of compensation in the current reference. Mr Jeffrey’s reluctance to disclose details of those settlements undermines the credibility of his evidence as an expert witness.[56]In his expert report on Stansfield House Farm, Mr Jeffrey referred to reports on the effects of noise, lighting and air quality resulting from the road works associated with the redevelopment of the ROF site, as follows:
“ Noise Assessment A Noise Assessment report has been prepared by Phillip Wilson, Principal Engineer, Environment Directorate, Lancashire County Council. Appendices 21 and 22 refer. The report finds that overall the level of noise experienced at the property on balance is not now nor will in the future be worse than existed pre scheme. Noise recorded at the claim property is lower than at a point 200m to the east where traffic is free flowing. As a result of a lowering of the speed limit from the National Speed Limit of 60mph to 40mph and the change in the carriageway surfacing materials used the findings of the report are such that the effect of noise on the property is positive in that noise will have reduced from its pre scheme level. This reduction is offset by the increases in noise associated with the changing gears in the acceleration and deceleration of traffic at the junction. The overall effect of noise at the property is neutral. In assessing a claim under the Act it is in my opinion necessary to consider the perceptions of hypothetical purchasers at the valuation date. Due to the new junction and the increased amount of stop start traffic movements there will in my opinion be a perception that the levels of noise have increased and they would alter their bid for the property accordingly. Lighting Assessment A Lighting Assessment has been undertaken by Phillip Wilson. Appendix 23 refers. The findings of the report are that whilst there may be some increased light spillage into the property the overall effect of the scheme lighting is such that it is directed more towards the ground and does not disperse as widely as pre-scheme. The assessment does not mention the effect of vehicle headlights when exiting the business park but it is clear from my inspection that lights do intrude into the claim properties although in the case of Stansfield House Farm the lights are shielded somewhat by the boundary hedge screening the road from the property. Indirect light is however noticeable. Air Quality Assessment An Air Quality Assessment has been undertaken by Phillip Wilson, Appendix 24 refers. The findings are that despite the increase in traffic volumes there will be a predicted reduction in the level of pollutants produced by the traffic by 2016. This is due to the improvements in technology and emissions legislation.”
[57]Mr Jeffrey listed a number of settlements to which he had had regard in arriving at his valuation. He concluded:
“In the light of the above in my opinion the percentage diminution attributable to the use of the altered road should be slightly greater than the comparables referred to, to reflect the differing circumstances and would assess this at 7.5%. Section 6(1) of the Act allows the compensating authority to offset any increase in value to the property attributable to the existence of or the prospective use of the public works to which the claim relates. As the property will benefit from its proximity to the new railway station in my opinion the percentage will need to be adjusted to take this benefit into account and in my opinion the overall determination should be 6.5%. Valuation Switched off value of house £450,000 Value of Barn with hope value £150,000 Total: £600,000 Diminution in value 6.5% Compensation therefore £ 39,000 If it is determined that the value of the barn can take the planning consent into account the valuation will be as follows: Switched off value of house £450,000 Value of Barn £300,000 Total £750,000 Diminution in value 6.5% Compensation therefore £ 48,750 The valuation assuming a nominal value for the barn would be as follows: Switched off value of house and barn £450,000 Diminution in value 6.5% Compensation therefore £29,250”
[58]The compensation payable for Stansfield House was eventually agreed in advance of the Tribunal hearing at £75,000 exclusive of costs. I accept that, because of the complexity of the case, it is not possible to analyse the settlement accurately. Nevertheless, Mr Jeffrey’s report suggested that, before adjustment pursuant to section 6(1), the value of Stansfield House Farm was reduced by 7.5% as a result of works which appear to have had a broadly similar impact to those at the subject property, and agreement was subsequently reached at a figure substantially higher than all three of Mr Jeffrey’s valuations.[59]I now consider the evidence of the settlement at 3 Preston Road. In his report on that property to the compensation authority Mr Jeffrey referred to the physical factors as follows:
“The closest part of the property is approximately 25m from the new road at its junction with Preston Road. Buckshaw Avenue inclines steeply from Buckshaw Village and the new business park development and all vehicles but especially heavy lorries struggle to get up it resulting in more noise fumes etc than if it was a level road. The claimant mentions noise at night from lorries being particularly intrusive. The road is one of the main entrances to Buckshaw Village/the business park from the M61 side and with the future development expected the traffic and noise are expected to increase. Switched off value of property: £320,000 Compensating recommended: £ 29,000 Percentage: 9%.”
[60]Mr Hardwick suggested that the switched off value of 3 Preston Road was substantially less than £320,000 because the property had been offered for sale in July 2007, one month before the valuation date, at only £285,000. Mr Jeffrey responded that the switched on value was £291,000 (£320,000 - £29,000), which was broadly comparable to the price which was quoted after the scheme works had been completed and the new road was in operation.[61]I think Mr Jeffrey is right on this issue and conclude that the compensation agreed for 3 Preston Road was indeed based on 9% of the appropriate switched off value. However, unlike in the case of Stansfield House Farm, there is no expert engineering evidence as to the effect of the physical factors on the value of 3 Preston Road. More importantly, 3 Preston Road was settled by negotiation without recourse to this Tribunal. That is significant, because experience has shown that Mr Jeffrey is prepared to advise the compensating authority to increase its offers of compensation substantially when disputes are referred to this Tribunal. As I have said, Stansfield House Farm compensation was eventually agreed at £75,000, whereas in his expert report Mr Jeffrey had suggested values on alternative bases of £29,250, £39,000 and £48,750. In the present case, the compensating authority submitted in its statement of case (based on Mr Jeffrey’s advice) that the diminution in value was 4%, but that figure was increased to 5.5% when Mr Jeffrey subsequently prepared his expert report.[62]In my judgment little weight can be attached to any of the settlements. I consider that the most persuasive starting point when determining this reference is provided by Mr Jeffrey’s expert report relating to Stansfield House Farm (a reduction in value of 7.5% before any offset), in a case where the evidence suggested that the physical factors were broadly similar to what I have found them to be in the present case. I bear in mind that compensation was eventually agreed for Stansfield House Farm at a figure which exceeded by some margin all three alternative valuations which had been put forward in Mr Jeffrey’s report and that the subject property is more prestigious. With these considerations in mind I find that the value of the subject property was reduced by 9.5% as a result of physical factors associated with the use of the altered roundabout junction. I determine the compensation payable at £75,000, calculated as follows: Switched off value = £790,000 Diminution in value – 9.5% £ 75,050 say £ 75,000[63]The decision is final on all matters other than costs. The parties may now make submissions on the costs and a letter giving directions for the exchange of submissions accompanies this decision. Dated 19 November 2013 N J Rose FRICS

Cited in 2 later judgments