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England and Wales Lands Tribunal |
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You are here: BAILII >> Databases >> England and Wales Lands Tribunal >> Thomas's Executors (Executors of Edward Thomas (deceased)) v Merthyr Tydfil County Borough Council [2002] EWLands ACQ_206_2000 (22 November 2002) URL: http://www.bailii.org/ew/cases/EWLands/2002/ACQ_206_2000.html Cite as: [2002] EWLands ACQ_206_2000 |
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[2002] EWLands ACQ_206_2000 (22 November 2002)
ACQ/206/2000
LANDS TRIBUNAL ACT 1949
COMPENSATION land acquired under reclamation scheme for development and conservation whether ransom value payable for access whether slag tip of value for mineral extraction whether planning permission would have been granted whether a market for material hope value lost before valuation date held 50% ransom payment to be assumed no planning permission and no market for tip no hope value at valuation date loss of earlier hope value not due to scheme compensation £282,000
IN THE MATTER of a NOTICE OF REFERENCE
BETWEEN THOMAS'S EXECUTORS Claimants
(The Executors of Edward Thomas (deceased))
and
MERTHYR TYDFIL COUNTY Acquiring
BOROUGH COUNCIL Authority
Re: Approximately 8.691 Hectares of a former
Tip Rough Grazing, Part Ancient Monument
together with part Bank and Bed of River Taff,
Land adjacent to Swansea Road, Merthyr Tydfil
Before: The President
Sitting at 48/49 Chancery Lane, London WC2A 1JR
on 17, 18, 19, 20 and 21 June 2002
The following cases are referred to in this decision:
Pentrehobyn Trustees v National Assembly for Wales (LT ref ACQ/116/2000, 14 Nov 2002)
Director of Buildings and Land v Shun Fung Ironworks Ltd [1995] 2AC 111
Re Lucas and Chesterfield Gas and Water Board [1909] 1KB 16
Melwood Units Pty v Commissioner of Main Roads [1978] AC 436
Jelson v Blaby District Council [1977] 1 WLR 1020
Pointe Gourde Quarrying and Transport Co v Sub-Intendent of Crown Lands [1947] AC 565
Ryefields Securities Ltd v Staffordshire County Council (1972) 24 P & CR 411
Williamson v Cambridgeshire County Council (1977) 34 P & CR 117
Penny v Penny (1868) LR 5 Eq 277
West Midland Baptist (Trust) Association (Incorporated) v Birmingham Corpn [1970] AC 874
The following additional case was cited in argument:
BSH Holdings Ltd v West Ashford Rural District Council (1972) 24 P & CR 392
Mr Joseph Harper QC instructed by Charles Crookes & Jones, solicitors of Cardiff, for the claimants.
Miss Mary Cook instructed by Barbara James, Corporate Chief Officer, Legal and Regulatory Services, Merthyr Tydfil County Borough Council, for the acquiring authority.
DECISION
The subject land and its surroundings
The issues
(a) Block 2 access. Whether the claimant would have had to make a ransom payment for access to the owner of the Thorn land, and, if so, the amount of such payment.
(b) Whether planning permission would have been granted for the removal of the slag from Block 3, the Finger Tip. This requires a consideration of the section 17 certificate and the weight to be attached to it; planning policies; and other planning considerations.
(c) Whether, if planning permission has been granted, the slag forming the Finger Tip would have had commercial value, and, if so, what that value would have been. This requires a consideration of the nature of the tip's contents, the estimates of volume and density, the cost of extraction, whether there would have been a market for the mineral and the price that it would have fetched.
Block 2 access
Issues (b) and (c): the claimants' case
The planning background
1. Removal of the Finger Tip;
2. Commercial;
3. Business;
4. Light industrial;
5. Retail and retail warehousing;
6. Leisure;
7. Housing.
"Business and light industrial (Use Class B1)
Leisure
Retail uses ancillary and complimentary to heritage and tourism (NOT Use Class A1 generally)
Informal recreation
Food and drink."
"Development on or within major sites or features of the built and historic environment will be considered as follows:
2. Development which fails to preserve, maintain or enhance where possible the existing character of other single or groups of buildings, conservation area or other features recognised as being of local architectural or historic interest in local plans (such as other identified buildings and historic parks, gardens and landscapes) will not normally be permitted."
"6.4 The 'finger tip' shall be retained, enhanced and interpreted.
6.5 The remains of the Ironworks, including the blast furnaces, any exposed foundations and Pontycafnau Bridge, together with other features of the historical landscape, shall be developed as a visitor attraction, with an associated linear riverside park.
6.6 Provision shall be made to maximise the amount of land for development on the upper plateau. If the whole of the upper plateau is included, provision shall be made for commercial/light industrial/leisure uses. Alternatively, provision shall be made to extend the industrial use."
".. is an integrated part of the industrial landscapes, and is important to understanding the historical use of the Pontycafnau site, its reclamation with a view to extracting its mineral content would be very regrettable."
"The most important wildlife conservation areas are the 'finger tip' and its banks, semi-natural woodland associated with the disused feeder, the ravine and the small pastures to the north west of the site. These are well-established vegetated areas, supporting considerable plant and invertebrate communities of interest. With the exception of the ravine these should be retained, and protected within the development of the site."
"11.6 However, far from diminishing its interest, I regard its physical existence and visual evidence of blast-furnace iron slag and steel slag as being of more importance as a rarity in this region. This is particularly so because it has been little touched since the furnaces ceased operations.
11.7 I take the view that it is a relatively small, but fairly intact, furnace slag heap that would be ideal for interpretation purposes as it could demonstrate both early and later phases of operation, even though it is not contemporary with the great iron-making phase. I consider that it forms an important and interesting part of the history and later development of the whole Cyfarthfa Ironworks site and its removal would have a negative impact upon the purpose of the Order to reclaim and landscape the site for industrial heritage interpretation.
11.8 There is a clear opportunity on this site to not only preserve the scheduled ancient monuments and the bridge, but to interpret their history from the 18th to the 20th century, the complete process from iron-making to waste tipping, in a heritage park landscaped setting."
"11.9 Whilst the list of plants and wildlife present on the tip is not particularly rare for the wider region, it is of interest in this particular industrial location as an example of a pioneer landscape on an island of calcareous material. From my inspection, the visual evidence of a special habitat seemed rather thin on the ground, but I have no doubt that it contains plants not normally found in the vicinity."
"11.8 Despite the objector's claims to the contrary it does not appear to me that the extract of the material from this old tip would be in accordance with development plan policies . One of the main objections of the MGCC derelict land policy has been to concentrate initially on schemes to remove dangerous dereliction, but policies D1 and D2 of the Structure Plan state that derelict land will receive treatment appropriate to the nature of the site and the proposed after-use of the land in accordance with a planning brief and supplementary planning guidance for the site. Supplementary Planning Guidance for Cyfarthfa Ironworks has been prepared in accordance with the Structure Plan policy, and it follows the advice in policies D5 and D6 with regard to the enhancement of industrial archaeological features and the conservation of existing natural habitats.
11.19 According to MGCC's own annual inspections, the Finger Tip is not a derelict site where safety issues require its removal, but it is seen as an important part of the industrial heritage and ecological interest of the whole CPO site, which accords with my own assessment of the condition and potential value of this tip. Whilst published research papers and recent government guidance in MPG's advise the recycling of waste materials in the construction industry generally, this is specifically with regard to waste as it is produced, rather than old tips such as this. There is some evidence that blast-furnace slag in particular can be re-used in road construction , but this is not conclusive with regard to mineral contents of the Finger Tip, which appears to be a mixture of blast-furnace and steel slag, which is not acceptable for construction projects ."
Planning evidence
"The use of mineral waste or other materials should be encouraged wherever practicable to reduce the demand on green field sites for mineral extraction. In many cases this will offer the additional benefit of land reclamation by helping to remove unsightly waste tips, whilst at the same time preserving other mineral resources for the future. Aggregates are the principal materials for which waste and other materials (e.g. pulverised fuel ash and blast furnace slag) can be used as a supplement or substitute."
"16. The use of secondary materials such as .blast furnace slag is to the nation's advantage and should be encouraged .
17. Increased utilisation of wastes could reduce the demand for primary aggregates The most ready use for alternative materials is as a bulk fill. DOE Circular 20/87 (Welsh Office Circular 36/87) sets out Government policy on the use of alternative material for road fill and asks planning authorities to identify alternative potential sources of suitable fill for trunk road scheme."
The scheme
"MGCC seeks to acquire the Order land to carry out a derelict land reclamation scheme and to make it available for use or development. The remains of the ironworks, the recently refurbished iron bridge, and associated areas would be developed as an industrial heritage visitor attraction; the Finger Tip would be retained and interpreted; a visitor centre and car parking for the ironworks and historic site would be provided; a route for the Taff Trail cyclepath would be part of the scheme; land at the upper level would be made available for industrial development and leisure uses ancillary to the proposed industrial heritage visitor attraction; and an extensive landscaping and screening scheme would be undertaken."
The section 17 certificate
(a) that planning permission would have been granted for development of one or more classes specified in the certificate (whether specified in the application or not) and for any development for which the land is to be acquired, but would not have been granted for any other development; or
(b) that planning permission would have been granted for any development for which the land is to be acquired, but would not have been granted for any other development."
Planning permission in the no-scheme world
What the tip contains
Access
Volume and density estimates
Cost estimates
Value of the minerals
"The cost therefore of transporting material from, say, Penderyn to the A470 Trunk Road adjoining the Finger Tip (a distance of seven miles) would add 63p + £1.29 = £1.92 onto the cost ex-quarry. The cost to deliver one tonne of, say, sub-base onto site would (based on IG's ex-quarry price of £3.80) therefore be £5.72/tonne. If material was being transported from Vaynor (two miles away) the equivalent cost would be £5.27/tonne."
"The Fingertip, Pontycafnau, Merthyr Tydfil.
Further to our investigations, I write to confirm our interest in purchasing material contained at the above. Our investigations show that there is approximately 500,000 tonne of material on site comprising blast furnace slag and steel slag. We would wish to process the materials on site ourselves, and would expect to complete the operation in approximately 15 (fifteen months)."
The letter then set out "our offer for the material" at specified prices.
369,600 tonnes at £4.25 per tonne | 1,570,800 |
98,560 tonnes at £2.00 per tonne | 197,120 |
9,856 tonnes at £4.00 per tonne | 39,424 |
14,784 tonnes at £10.00 per tonne | 147,840 |
Total | £1,955,184 |
The cost of extraction and processing I have found to be between £2 and £2.50 per tonne, or between £985,600 and £1,232,000. Taking the mid-point of £1,108,800 and subtracting this from the total value leaves a net value of £846,384. This is the value that the tip would have had if there had been a market for the material adjacent to the subject land.
The market
"We write to express our interest in the slag material from the tip known as the 'Finger Tip' as a source of imported fill material, if we are successful in our tender to construct Stage 3 of the A470 Trunk Road from Pentrebach to Cefn Coed.
Any agreement with you on the use of the tip would be subject to the necessary planning permission for mineral extraction together with approval of the material by the Resident Engineer."
Conclusions
Dated 22 November 2002
George Bartlett QC, President
Addendum on Costs
"In an attempt to settle the above claim without this matter passing to court I am able to put forward an offer in the sum of £350,000 exclusive of costs, and statutory interest. Costs are to be agreed, or in the absence of such agreement to be taxed by the court. A copy of this letter will be passed to the Lands Tribunal in a sealed envelope with instructions that it shall only be opened upon completion of the case and shall be material as to all costs incurred after the date of this letter."
"Whether such special reason exists in any given case in a matter for the judgment of the Lands Tribunal. Plainly it may exist where wasted or unnecessary costs have been incurred for procedural reasons as a result of the conduct of the claimant (e.g. abandoned issues, unnecessary adjournments, or failure to comply with directions of the Tribunal). However, so far as the nature and substance of the case advanced by the claimant is concerned, special reasons should only be regarded as established where the Tribunal considers that an item of costs incurred or an issue raised was such that it could not on any sensible basis be regarded as part of the reasonable and necessary expenses of determining the amount of the disputed compensation. This would apply not only to a claim advanced without any statutory basis but to other examples of manifestly unreasonable conduct which may give rise to unnecessary expense in the course of the proceedings. It means, in my view, that, following the hearing of a compensation reference in the Lands Tribunal in which the claimant has been successful, a special reason for departing from the usual order for costs should only be found to exist in circumstances where the Tribunal can readily identify a situation in which the claimant's conduct of, or in relation to, the proceedings has led to an obvious and substantial escalation in the costs over and above those costs which it was reasonable for the claimant to incur in vindication of his right to compensation."
" exaggeration alone is not enough in the event of a large disparity between the sum claimed and the sum awarded. The matters to which the Tribunal should have regard are (a) the reasons for that disparity and (b) their effect upon the conduct of the claim. As to (a), if the reasons are defensible, in the sense that there was a legitimate, albeit unsuccessful, argument put forward in support of the figure concerned, there can be no good reason to regard the claim as exaggerated in the pejorative sense necessary to justify a sanction in costs. As to (b), if, in any event, the effect on the proceedings in terms of the time spent and the costs incurred in disposing of the issue or argument concerned is relatively insignificant, then again an adverse order is unlikely to be appropriate."
"Where the Tribunal makes an award of compensation which is well below the amount claimed, it is appropriate for it consider, in the context of an award of costs, both whether the fact that the claim was exaggerated has led the claimant to incur costs which (given a more realistic evaluation of his claim) he would not have incurred and whether the explanation for the difference between the award and the amount claimed is that issues were pursued on which the claimant had no real chance of success."
Dated 26 February 2003
George Bartlett QC, President
APPENDIX 1
VALUATION OF KEITH MURRAY FRICS
Assuming that the Estate had an un-fettered right of access across the Thorn land in consequence of an agreement reached with Merthyr Tydfil County Borough Council at the Western Relief Road public inquiry.
Block 1 |
|||
As agreed with DV | £1,565 | ||
Block 2 Upper Plateau |
|||
Land value (as agreed with DV) |
£910,750 |
||
Less | |||
Remediation costs (as agreed) | (£265,000) | ||
645,750 | |||
Deferred 1 year @ 15% |
0.867 | £559,865 | |
Block 3 | |||
Mineral value |
£1,700,000 |
||
Less cost of haul road on the assumption that the A470(T) accommodation works had provided for the proper reinstatement of the previous haul road operated under the WDA Agreement Provision of traffic lights to Swansea Road Provision of temporary haul road across the Upper Plateau from the termination point of the WDA Agreement haul road to the Fingertip iii) Provision for protective works to electricity pylon |
£6,000 £102,000 £30,000 |
(£138,000) |
|
1,562,000 | |||
Less | |||
Royalty payments to the WDA under their Agreement for haulage rights 224,000 cu m to be removed Say 22,400 lorries @ 10p per lorry |
(£2,240) |
£1,559,760 |
|
Reversion to open space |
|||
11.95 acres @ £500 per acre Deferred 2 years @ 15% |
£5,975 0.756 |
£4,517 |
|
Blocks 4 & 5 | |||
As agreed with DV |
£535 | ||
£2,126,242 | |||
Valuation as at 29 March 1996 say | £2,126,250 | £2,126,250 | £2,126,250 |
APPENDIX 2
ALTERNATIVE VALUATION OF KEITH MURRAY FRICS
Assuming that the Estate had an un-fettered right of access across the Thorn land in consequence of an agreement reached with Merthyr Tydfil County Borough Council at the Western Relief Road public inquiry.
Block 1 |
|||
As agreed with DV | £1,565 | ||
Block 2 Upper Plateau |
|||
Land value (as agreed with DV) |
£910,750 |
||
Less | |||
Remediation costs (as agreed) | (£265,000) | ||
645,750 | |||
Deferred 1 year @ 15% |
0.867 | £559,865 | |
Block 3 | |||
Mineral value |
£1,700,000 |
||
Less cost of haul road on the assumption that the A470(T) accommodation works had provided for the proper reinstatement of the previous haul road operated under the WDA Agreement Provision of traffic lights to Swansea Road Provision of temporary haul road across the Upper Plateau from the termination point of the WDA Agreement haul road to the Fingertip iii) Provision for protective works to electricity pylon |
£6,000 £102,000 £30,000 |
(£138,000) |
£1,562,000 |
Reversion to open space |
|||
11.95 acres @ £500 per acre Deferred 2 years @ 15% |
£5,975 0.756 |
£4,517 |
|
Blocks 4 & 5 | |||
As agreed with DV |
£535 |
||
£2,128,482 | |||
Valuation as at 29 March 1996 say | £2,128,500 | £2,128,500 | £2,128,500 |
APPENDIX 3
VALUATION OF M J WILLIAMS FRICS
Block 1 | 3.13 acres @ £500 per acre | £1,565 | Agreed | |
Block 2 | Gross Area 5.38 acres Developable area 4.69 acres |
|||
A 3.6 acres at £200,000 per acre B.1 1.09 acres at £175,000 per acre £190,750 OR B.2 1.09 acres less 0.14 acres £190,000 for stability strip at top of retaining wall 0.95 acres at £200,000 per acre |
£720,000 £190,750 £910,750 |
|||
Less costs of site preparation | £265,000 | |||
£645,750 | ||||
Deferred 1 year at 15% | £ 0.867 | |||
£559,865 | Agreed | |||
Less cost of obtaining rights of access for development. 50% of development value £559.865 |
£279,933 |
£279,932 |
Unagreed |
|
Block 3 | 11.95 acres | Nil | Unagreed | |
Block 4&5 | 1.07 acres at £500 per acre | £ 535 | Agreed | |
TOTAL | £ 282,032 | |||
Value £282,000 (two hundred and eighty two thousand pounds) |
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