LANDS TRIBUNAL FOR NORTHERN IRELAND
LANDS TRIBUNAL AND COMPENSATION ACT (NORTHERN IRELAND) 1964
IN THE MATTER OF A REFERENCE
R/8/1991
BETWEEN
PATRICK E NEESON - CLAIMANT
AND
THE DEPARTMENT OF ENVIRONMENT FOR NORTHERN IRELAND - RESPONDENT
Lands Tribunal for Northern Ireland - Mr A L Jacobson FRICS
Downpatrick - 6th April 1993
This reference concerned the compensation to be paid for the compulsory acquisition of 1032 square metres of land together with various commercial buildings known as Nos 8-10 Church Street, 12 Church Street and 1A Lottery Place - all of which were situated in Dromore, Co Down. The compulsory acquisition was made by Vesting Order, dated 10th November 1987, under the provisions of the Roads (Northern Ireland) Order 1980. Such Vesting Order became operative on the 2nd February 1988 (the date on which the assessment of compensation has to be made).
Both the Claimant and the Respondent employed expert valuation witnesses but neither had inspected the various properties prior to their demolition subsequent to the operative date of the Vesting Order. The Tribunal was asked by Counsel for both parties for some time to enable the experts to narrow the many issues arising from the various proofs of evidence.
The result of such time led to two agreed figures viz:-
Value of entirety of lands compulsorily acquired as
at 2nd February 1988 £25,000
Value of Claimant's remaining land and buildings
(adjacent to the land taken) as at 2nd February 1988 £180,000
Two matters were left outstanding viz:-
(a) the amount of injurious affection suffered by the Claimant's remaining lands due to severance, and
(b) the betterment to the Claimant's remaining lands due to the vested land being acquired for development as a public car park. Such amount of betterment to be set-off against compensation.
Mr Michael Keogh of Counsel (for the Claimant) called Mr James Craig Best BSc ARICS, a Director of Best Property Services (NI) Ltd, to give evidence.
He considered that the injurious affection caused by no longer having a rear access for loading/unloading goods to the remaining shops and commercial premises in the Claimant's ownership amounted to 10% of the agreed value of £180,000. He accepted that the vested land was rubble-strewn and that there was a drop of approximately two feet from Lottery Place to that land. He also accepted that Lottery Place being rather narrow at its mouth was not able to cater for the larger vehicles such as articulated lorries, but lorries and vans had used it and it had proved to be of ample width.
His estimate for injurious affection was therefore:-
10% of £180,000 = £18,000
Mr Best then considered that the two metre high boundary wall at the rear of the properties retained by his Client was not high enough for security purposes. He accepted that this matter was not one of injurious affection but that there was no other heading for this item. The Respondent had built that wall when developing the vested land as a public car park. He told the Tribunal that his estimate was for an increase in that wall of 1.5 metres height to be erected by the Claimant. His estimate of cost was
38 metres length (by 1.5 metres) at £30 per
lineal metre £1,140
Mr Best was of the opinion that there was no betterment to be set off for the car park developed by the Respondent was in no way exclusive to the land and buildings remaining with the Claimant. It was a free car park for the benefit of the whole of the small town of Dromore, was used for some long term parking and any betterment was negligible for the Claimant's remaining property.
Mr Best's final computation of compensation was:-
£25,000 for the land vested plus £18,000 injurious
affection to the remaining land plus £1,140 for
increasing the height of the wall giving a total
compensation of £44,140
Miss Heather Gibson of Counsel (for the Respondent) called Mr Matthew Robert Coates ARICS (a valuer employed by the Valuation and Lands Office) to give evidence. Mr Coates testified as a factual witness but not as an expert valuation witness - there had been no application to the Tribunal for consent to call two valuation experts. Mr Coates was the only witness called to give evidence who had inspected the lands prior to Vesting and prior to demolition. He had been engaged in negotiating the purchase of the land by agreement. His evidence was that the vested land was overgrown and strewn with rubble. There was a two foot drop from Lottery Place to the vested land at a 75 degree gradient. That would require proper grading and the vesting area would require some clearance before a proper loading/unloading facility could be made available.
Miss Gibson also called Mr Robert Allen Coey ARICS, a valuer employed by the Valuation and Lands Office to give evidence.
His opinion of the injurious affection due to severance suffered was calculated in a similar way to Mr Best, but his original opinion was
5% of £180,000 = £9,000
But although in his written proof of evidence he had agreed with Mr Best's submission that the severance included the loss of a small toilet block used in conjunction with part of the land remaining with the Claimant, the agreed compensation (£25,000) for land taken had included the value of that toilet block. Thus, he adjusted his original opinion (to exclude the value) to:-
3% of £180,000 = £5,400
On the other hand he approached the matter of betterment to be set-off against compensation from a different standpoint. His evidence was:- "The completed scheme was a badly needed 50 space car park for shoppers close to the centre of Dromore to help ease parking and congestion around the centre/retail trading area of Dromore.
This close availability of parking which is to the rear of the claimant's remaining property and which has a high level of occupancy since completion would in my opinion enhance the value of this remaining property".
He supported his opinion of the need for this car park with a cutting from a local paper "The Dromore Leader" on 17th January 1986. In that cutting Mr Victor McKinstry was reported as saying "The town needs the car park for convenience of shoppers and to ease the terrible traffic problem".
(Mr McKinstry was not called to give evidence but the Tribunal notes that Mr McKinstry's business is in Church Street a little distance from the vested land and not within the Claimant's remaining property.)
His opinion of betterment to be set-off was:-
5% of £180,000 = £9,000
Mr Coey, in his written proof of evidence also agreed with Mr Best's written submission that the boundary wall erected by the Department is too low. But as a result of all the negotiations that had taken place prior to the start of these proceedings he now considered that the wall provided was adequate and was ample replacement for what existed before vesting.
Thus he added nothing to the compensation for any cost of raising the height of that wall. Alternatively his opinion of 3% for injurious affection due to severance included that particular matter.
Mr Coey's estimate of total compensation, therefore, was:-
£25,000 for land taken plus £5,400 for injurious affection
to land remaining minus £9,000 for betterment to be set-off £21,400
DECISION OF THE LANDS TRIBUNAL
The problem of assessing the correct quantum of compensation was not made any easier for the Tribunal by the lapse of time since the date that the Vesting Order became operative on the 2nd February 1988 - more than 5 years ago - coupled with the fact that neither expert valuer witnesses had seen the land and buildings prior to the compulsory acquisition and demolition of the buildings. The only valuer who had inspected on a number of occasions prior to Vesting and whose last inspection was on 18th August 1986 was able to give the Tribunal factual evidence of the physical state as far has he could recollect, but could not give valuation evidence.
Put starkly the difference between the experts may be seen from the following figures of total compensation submitted:-
(a) In the written proofs of evidence
Mr Coey (for the Respondent) £18,600
Mr Best (for the Applicant) £69,140
(b) Following time given for negotiation prior to this hearing
Mr Coey (for the Respondent) £21,400
Mr Best (for the Applicant) £44,140
The Tribunal's computation starts with the agreed figure
for the value of the land taken viz £25,000
To this must be added the injurious affection through
severance.
The competing figures of the expert valuers were
arrived at by an opinion of the percentage to be
applied to the agreed value of the land remaining
in the ownership of the Claimant ie £180,000.
Mr Best's figure was 10%.
Mr Coey's figure was 5% originally but that included
value of the small toilet block which was part of
the land taken. It was only as a result of a
question from the Tribunal that he gave an opinion
of the reduced % as 3.
The Tribunal realises that figure was given with
little time for proper consideration but a mere
reduction in order to reduce the amount of
compensation under this head for the value of
the toilet block already agreed in the above
total of £25,000 ignores the fact that the
licensed premises and the retail outlets in
the remaining land had to acquire or erect
alternative toilets which may not be as
convenient.
The Tribunal prefers:-
5% of the agreed value of £180,000 £9,000
The Tribunal now comes to the disputed
approaches of the respective valuers of the
boundary wall.
Mr Best's opinion was that the Claimant
should be awarded the cost of raising that
wall by 1.5 metres along its length.
Mr Coey, after negotiations had taken place
to agree compensation for land taken
considered the wall adequate.
The Tribunal views this from a number of
important ways which include the following
matters:-
(a) The wall was erected by the Respondent as
accommodation works.
(b) That wall was superior to what existed
prior to vesting.
(c) The agreed value of £180,000 for the land
remaining took into account the
accommodation works or at least their
effect on that agreement.
(d) The question of the adequacy or not of
the wall does not come under the heading
of injurious affection.
(e) Any security difficulties experienced have
increased generally since 1988.
(f) The Tribunal does not accept Mr Best's
opinion of cost of raising the height.
Consequently the Tribunal awards for this head
of claim. NIL
Lastly for setting off any betterment the Tribunal has two completely opposite opinions:-
Mr Best says the availability of car parking atthe immediate rear of the Claimant's remaining land has not enhanced the value thereof.
Mr Coey says this car park particularly enhancesthat value because of its proximity to the remaining land. Neither of these approaches are favoured by the Tribunal. The car park is not regulated by charging shoppers for the time spent and thus long-term parking may take place; the car park is not for the exclusive use of customers who wish to resort to the retail outlets in the Claimant's ownership; the car park is used by anyone who wishes to resort on foot to any shop, office, building society.
The Tribunal rejects Mr Coey's 5% and Mr Best's NIL. Doing the best it can in recognising that the proximity of the car park must enhance the value of the remaining land albeit to a small extent the Tribunal takes 1% of the agreed value of £180,000 = £1,800
The Tribunal's computation of compensation is thus:-
Land Taken (agreed) £25,000
Injurious affection due to severance £ 9,000
£34,000
Set-off of betterment £ 1,800
£32,200
The Tribunal awards total compensation of £32,200
The Respondent will pay the Claimant's costs of this reference, such costs in default of agreement to be taxed on the High Court Scale.
ORDERS ACCORDINGLY
A L JACOBSON FRICS
7th May 1993 LANDS TRIBUNAL FOR NORTHERN IRELAND
Appearances:-
Mr Michael Keogh of Counsel (instructed by Messrs Colman R Hanna & Co, Solicitors) for the Claimant.
Miss Heather Gibson of Counsel (instructed by the Solicitor for Department of Finance & Personnel, Solicitor's Branch (Environmental Division)) for the Respondent.
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