“This lease does not let to the tenant the external surfaces of the outside walls of the property and anything above the ceilings and below the floors.”
“ALL THAT property comprising part of a building at 4 Waterloo Street Newcastle upon Tyne including the internal surface of the external walls thereof but excluding the remainder of the external walls and including all the portion of the building below the level of the top of the brickwork supporting the joists upon which the floor of the First Floor rests but including the joists themselves and formally [sic] known by the sign of WINDSOR SNOOKER CLUB AND GROUND FLOOR WAREHOUSE (the demised premises).”
“TEN THOUSAND POUNDS (£10,000 ) per annum Windsor Snooker Club, Ground Floor Warehouse EIGHT THOUSAND POUNDS (£8,000 ) per annum and 6 months [rent] free period.”
“Not to use or suffer the use of the demised premises or any part thereof to be used otherwise than as a coffee bar/fast food outlet or a computer shop or any other class withinClass A of the Town and Country Planning (Use Classes) Order 1987 .”
“It is I think necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the ‘sham’ which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities…. for acts or documents to be a ‘sham’, with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.”
“I read [the Judge’s] finding that ‘the licences are artificial transactions designed to evade the Rent Acts’ as a finding that they were sham documents designed to conceal the true nature of the transaction.”
“But though subsequent conduct is irrelevant as an aide to construction, it is certainly admissible as evidence on the question of whether the documents were or were not genuine documents giving effect to the parties’ true intentions.”
“In my judgment, the whole point of a sham provision or agreement is that the parties intend to give the impression that they are agreeing that which is stated in the provision or agreement, while in fact they have no intention of honouring with their respective obligations, or enjoying the respective rights, under the provision or agreement. … [O]ne should not lose sight of the fact that there is obviously a strong presumption, even in the case of an artificial transaction, that the parties to what appear to be perfectly proper agreements on their face, intend them to be effective, and that they intend to honour and enjoy their respective obligations and rights. That that is so is supported by the fact that an allegation of sham carries with it a degree of dishonesty, and the court should be slow (but not naively or unrealistically slow) to find dishonesty.”
“Both principle and the authorities indicate that the court is slow to find that an agreement is a sham, and that, before the court can reach such a conclusion, it must be satisfied that the purported agreement is no more than a piece of paper which the parties have signed with no intention of its having any effect, save that of deceiving a third party and/or the court into believing that the purported agreement is genuine.”
“I relied upon the rental income from the leases to fund the mortgage repayments on the freehold of the retained land [4 W St] which I had purchased in 2001. … …I obtained a mortgage from Lloyds TSB to partially fund the purchase. …”
“On the other hand, the fact that no attempt whatever appears to have been made on the part of the Company, to pay any of the sums due under the agreements, or, on the part of the defendants, to enforce such payments, is, on the face of it, a powerful point in favour of the sham argument.”
“The business was run as a family partnership until late 1999.”
“Initially my brother Sajit and sisters simply occupied [the] ground floor and basement of the acquired land under informal licence arrangements, with nothing written down on paper.”
“37(1) Where a person is displaced from any land in consequence of – (a) the acquisition of land by an authority possessing compulsory purchase powers; … he shall, subject to the provisions of this section, be entitled to receive a payment (hereafter referred to as a “disturbance payment”) from – (i) … the acquiring authority (2) A person shall not be entitled to a disturbance payment – (a) in any case, unless he is in lawful possession of the land from which he is displaced; (b) in a case within subsection (1)(a) above, unless either – (i) He has no interest in the land for the acquisition or extinguishment of which he is …. entitled to compensation under any other enactment; or (ii) … (3) For the purposes of subsection (1) above a person shall not be treated as displaced in consequence of any such acquisition … of that subsection unless he was in lawful possession of the land – (a) in the case of land acquired under a compulsory purchase order, at the time when notice was first published of the making of the compulsory purchase order prior to its submission for confirmation …”
“To have lawful possession without a legal interest in the land, whether freehold or leasehold, requires that the person in possession has the permission of the owner who does have the legal right to possession. … If the person is not given exclusive possession he may still, in my judgment, have possession of the land within the meaning of section 37. He will then be a licensee. Any fragility in his right to continue as a licensee in possession of the land, because of the power of the owner to terminate it, will be relevant to the amount of any disturbance payment which must be determined with regard to the period for which the land might reasonably have been expected to be available for the purposes of his business: see section 38(2).”
“Correspondence which the council has received over the years relating to the liability for business rates for this unit has been confused and contradictory… It appears that this particular hereditament is the ‘corner unit’ at 4 Waterloo Street, which traded as ‘Sajways Takeaway/Convenience Store’. This information was given on the Rate Liability Return form provided by ‘Mr Thariq Mohammed’ on1 November 2008 .”
“I did not see any sign of anything not associated with fish and chips. Bottles of coke but nothing substantial being sold.”
“I doubt it very much. I don’t accept that it might have been. Very, very unlikely.”
“I saw a coat rack. That looks like it. We did not take photos of that. It looked out of place in a fish and chip shop. I was told it had nothing to do with the business. I don’t think it depicts accurately what was there when I was there. I distinctly recall the clothes rail.”
“On a shelf above the door between the front and rear parts of Unit A.”
“A few months for the Happy Chip and a few months at Especially 4 You.”
“In accordance with instructions given to us, we have prepared, without carrying out an audit, the trading and profit and loss account and Balance Sheet from your accounting records and from information and explanations supplied to us.”
“I confirm that we have made available all records and information required for the preparation of these accounts.”
“Undoubtedly, the general locality was improving at the time of the eviction [January 2003] with a consequential rise in the rental values. This has taken effect over the last 12 months, primarily due to the input of the Grainger Town Project in improving the quality of buildings…”
“The House of Lords decision in [ Transport for London v Spirerose Limited[2009] 1 WLR 1797 ] is a reminder to practitioners and those deciding claims for compensation for compulsory purchase of land that valuation for this purpose is to be made by applying the provisions that are contained in theLand Compensation Act 1961 …. The acquiring authority’s approach was to take an initial leap into the no-scheme world and to proceed from there….. applying the Pointe Gourde rule, compensation was to be assessed at the value the land would have had if the scheme had not existed. We think that in future valuers and their advisers will need to adopt a more methodical approach, considering the potentially relevant statutory assumptions and applying them to the facts of the case and only moving on to consider whether some additional assumption is required under Pointe Gourde when those earlier steps have been taken.”
“Their complexity makes summary difficult. For present purposes it is sufficient to say that the broad thrust of section 6 of the 1961 Act as amended appears to be as follows.
“No account shall be taken of any depreciation in the value of the relevant interest which is attributable to the fact that (whether by way of allocation or other particulars contained in the current development plan, or by any other means) an indication has been given that the relevant land is, or is likely, to be acquired by an authority possessing compulsory purchase powers.”
“It is well settled that compensation for a compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition.”
“We are conscious that Spirerose was concerned with planning assumptions rather than more generally with what would have been likely to have happened but for the scheme under consideration but the emphasis on the Pointe Gourde principle as an approach to construction … seem to us to be of general application.”
“The courts therefore found themselves driven to conclude that the statutory code is not exhaustive and that the Pointe Gourde principle still applies. This conclusion is open to the criticism that in many instances this makes the statutory provisions otiose. This is so, but this is less repugnant as an interpretation of the Act than the alternative.”
“ Waters v Welsh Development Agency is an example of an extended interpretation of the concept of value in the context of determining the extent of a scheme in order to give effect to Parliamentary intention to provide dispossessed owners with a fair financial equivalent: see at [61]. The underlying basis of the decision in Waters is that the extent of the scheme to be ignored for the purposes of valuation is not limited by the express provisions of sections 6 and schedule 1. It does not go further, ….”
“The first case in this House to refer to Pointe Gourde was Davy v Leeds Corporation[1965] 1 WLR 445 , where Viscount Dilhorne (at 453) said that what is now section 6(1) of the 1961 Act had given statutory expression to the principle. Section 9 also gives effect to the principle. The position would be the same without such an express provision. Just as an increase in the value of land must be left out of account, so must any decrease.”
“Further, there shall be disregarded any increase or decrease in value attributable to the scheme underlying the acquisition under the Pointe Gourde principle, as identified in [ Waters ]…Accordingly, the extent to which the effect of the Scheme would involve the destruction of the night life activities in the surrounding area must be disregarded.”
“The purpose of acquiring the Order Land compulsorily is to secure the regeneration and re-use of this development site through development, re-development and improvement consistently with the policies and proposals of the City Council’s approved Unitary Development Plan and within the timescale, investment and regeneration objectives of the Grainger Town Regeneration Strategy.”
“A development brief will be finalised and expressions of interest invited with a view to appointing a developer during 1999.”
“First, for a statement or action to be an indication within s.9 it must be a sign of the intention on the part of the authority possessing compulsory purchase powers that it is, or is likely, to acquire the land. An intention may be evidenced by an action or sequence of actions … Second, the statement or action said to be an indication must be given by an authority possessing compulsory purchase powers … It cannot be given by the claimant, his advisers or a third party…. Third, the indication must be available not only to the owner of the land but also to hypothetical potential purchasers of the land at the date of valuation…. The indication must be made public or be otherwise ascertainable by potential purchasers. An indication given privately or which is not likely to come to the notice of such purchasers cannot be an indication within s.9 of the 1961 Act. Fourth, the provisions of the 1961 a ct should be interpreted liberally …”
“Cabinet of the council approved the making of the CPO on20 March 2002 , following which negotiations/discussions have been entered into with the majority of the affected owners/lessees included in the CPO.”
“As the speeches in Spirerose emphasise, compensation for compulsory purchase is a creature of statute; the Pointe Gourde principle can properly be relied on in interpreting the compensation code but does not provide an extra-statutory appendix to it and cannot be applied to add to, or contradict, the assumptions laid down by Parliament.”
“I can say the business traded at a higher level than the accounts for the year ending31 May 2003 show and I estimate that the net profit was at least£35,000 per annum”
“In Optical Express there was a claim for pre-acquisition losses in the form of decreased turnover caused by the start of construction work on the scheme, nearby shops becoming empty and short lettings to inferior traders, see paragraph 65. The Lands Tribunal referred to the guidance in Shun Fung and then considered to what extent the fall in turnover was caused by the scheme. The Tribunal awarded compensation for the last 3 months of decline in turnover on the grounds that it had been caused by the scheme, paragraph 74.”
“Another application of the same principles where part of an agricultural holding was acquired and the claimant was awarded compensation for the effects of noise and dust caused by construction of the road scheme.”
“In Optical Express and Budgen … the claims based on the general blighting effect of the scheme were allowed on the assumption that they were recoverable in principle without any consideration as to whether that was correct. We reject [counsel for the acquiring authority’s] submission that because the claim allowed in Optical Express was for the 3 months trading prior to acquisition, it was so close to acquisition as to be indivisible from it. The claim based on the construction of the scheme, together with the vacancy and inferior lettings of other shops was not caused by the threat of acquisition of the claimant’s shop, rather by the imminent construction of the scheme. These two decisions therefore awarded compensation for losses caused by the scheme rather than the compulsory acquisition of the claimant’s land.”
“However, it is right to note that the Tribunal certainly took the view [in Welford ] that if the loss was caused by the prospect of the [imminent disruption from the] roadworks [to construct the scheme] it was not recoverable.”
“In a case where the loss to the letting business is caused by the general blighting effect of the scheme and the consequent depression of rental levels, rather than by the prospective acquisition of the land (or part of the land) on which the letting business is conducted, then we consider that such losses cannot be recovered. We did not understand [counsel for the claimants] to argue to the contrary…. We reach this conclusion for the simple reason that such losses cannot be brought within the basic test set forth by Lord Nicholls in Shun Fung , namely that the losses are “fairly attributable to the taking of his land.”
“The point at issue is whether the loss must be shown to have been caused by the dispossession, that is to say by the taking of the premises from the claimant in the exercise of compulsory powers, or whether it is sufficient for the loss to be recoverable that it was caused by the overall effects of the scheme of acquisition.”
“It is dispossession caused by the taking of the lands which gives rise to the right to compensation, not the threat of dispossession or the effects of publication of plans for the execution of the works. Where, as in [ Aberdeen City District Council v Sim[1982] 2 EGLR 22 ] and in [ Prasad v Wolverhampton Borough Council[1983] 1 EGLR 10 ], loss incurred under the threat of dispossession has been held to be recoverable, this is because the dispossession has followed and the loss has been shown to have been caused by the dispossession. The loss for which compensation was awarded in these cases was for expense which might have been incurred after the dispossession but which the claimants had chosen to incur beforehand…. I can find nothing in these authorities to support the proposition that a loss which cannot be shown to have been directly caused by the taking of the lands is recoverable….. loss which is held to be due to the effects of the blight on trading generally cannot be said to have been caused by the dispossession of the claimant from the land. The two events are quite separate. Blight on trading is the result of the way the scheme is perceived by the public, and it is indiscriminate in its effects…. It affects all traders in the area irrespective of whether their land is to be taken from them under the scheme. Dispossession, on the other hand, is the result of action taken directly against the claimant by the promoter and it is particular to the person whose interest is acquired from him by the taking of the land. A causative link between the taking of the land from the claimants and their trading losses has not been established in this case, and I think that the Tribunal were bound in these circumstances to refuse this part of the claim.”
“…. the equitable principle is that if a public authority uses compulsory powers to dispossess a person of his interest in land and causes him to suffer loss thereby the loss should not be allowed to fall upon the person dispossessed; he should be compensated for that loss by the acquiring authority. In so formulating the principle I recognise that it must be applied in such a way as to guide against spurious claims… but the principle itself is not to be restricted just because it has to be cautiously applied. And clearly the causal link must be proved.”
“In my view, it is plain that the cause of the loss in respect of which the appellants now claim was the threat, ultimately realised, of compulsory acquisition of premises in area B under the scheme. In the light of that conclusion in fact … the only question which remains is whether the loss sustained by the appellants, whose interest in land was compulsorily acquired, was a loss occasioned, ‘by reason of’ their dispossession. I consider that the claim must be a proper claim if the scheme, of which an integral part is their dispossession, causes the blight, which in turn causes the loss, provided that the threatened dispossession actually occurs.”
“Both of these passages make clear that the object of disturbance compensation is to cover personal losses suffered by the owner as a result of having to sell his land against his will, to reflect the value of the land to him. The losses which may be claimed are those suffered in consequence of the compulsory acquisition of the land (or threat of it). Losses caused by the construction of the scheme (or imminent threat of construction) underlying the acquisition of the land are not losses caused to the owner by the forced sale of his land but rather are caused to the owner, and usually many others, by the inconvenience of construction of the public authority’s scheme as a whole.”
“The fact that an owner whose land is compulsorily acquired suffers loss as a result of construction of the scheme which is not compensatable is no more unfair than the fact that the owner opposite, none of whose land is acquired for the scheme, suffers similar losses which are not compensatable either.”
“In assessing the compensation to be paid by the acquiring authority under this Act regard shall be had not only to the value of land to be purchased by the acquiring authority, but also to the damage, if any, to be sustained to the owner of the land by reason of the severing of the land purchased from the other land of the owner, or otherwise injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.”
“The basis of a claim to compensation for lands injuriously affected by severance must be that the lands taken are so connected with or related to the lands left that the owner of the latter is prejudiced in his ability to use or dispose of them to advantage by reason of the severance. The bare fact that before the exercise of the compulsory power to take land he was the common owner of both parcels is insufficient, for in such a case taking some of his land does no more harm to the rest than would have been done if the land taken had belonged to his neighbour. Compensation for severance therefore turns ultimately on the circumstances of the case.”
“But I am prepared to hold that, where several pieces of land, owned by the same person, are so near to each other, and so situated that the possession and control of each gives an enhanced value to all of them, they are lands held together within the meaning of the Act; so that if one piece is compulsorily taken, and converted to uses which depreciate the value of the rest, the owner has a right to compensation.”
“Would you confirm in writing that if I were to relocate at 4 Waterloo Street you would expect this to be a reasonable move from [one] side of the street to the other. Would you confirm that the planning permission for A3 use would be a simple formality and you would expect the planning department to grant planning permission as previously enjoyed up to 4am A3 use, due to being CPO by the council. [R]elocation directly opposite would put the business in an even location.”
“I would agree that [the move to Unit 1] is reasonable providing the alternative premises have the appropriate planning permission and other necessary approvals. … The city council will offer compensation based on a temporary loss of profits and relocation costs which arise from a legitimate transfer of a business.”
“[We were] given advice. Get what you can [and] extend the hours later. [Get a] foot in the door first. One thing at a time.”
“It all depends on how a reasonable businessman, using his own money, would behave in the circumstances. In such a case, however, the tribunal or court will need to scrutinise the relocation claim with care, to see whether a reasonable businessman having adequate funds of his own might incur the expenditure…. Compensation is not intended to provide a means whereby a dispossessed owner can finance a business venture which, were he using his own money, he would not countenance. However, when considering these matters the tribunal or court might allow itself a moderate degree of latitude in approving as reasonable the relocation of a family business….”
“for the external [grant] works there were sealed envelopes.”
“[We] spent from October 2003 planning the relocation, moving stock items and displays into the new Unit, arranging for shelving and display cabinets to be installed and arranging works to make the Unit ready for occupation and I estimated 30 hours per week was spent making a total of 500 hours.”
“The ‘management time’ issue was not, however, one falling within the specialist expertise of this tribunal. It was, in substance, a straightforward common law claim for compensation that had to be made good on the evidence; and if there was no evidence sufficient to make it good, the tribunal’s duty was to reject it. The tribunal’s error was to make an award of compensation when there was no evidence proving loss. That was unquestionably an error of law …. against which an appeal lies to this court; and it was an error of law that this court has a duty to correct.”
“I can well see that if an individual faced with a compulsory acquisition reasonably devotes his own time to dealing with it, he ought in principle to be compensated for his time. He can fairly say that the expenditure of such time represents a loss to him. In this case, the question is whether TNL, a company, has incurred any like loss.”