UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2015] UKUT 384 (LC)

UTLC Case Number: LCA/48/2014

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

COMPENSATION – water – laying of underground water main on private land – compensation under Schedule 12 to Water Industry Act 1991 – crop loss – consequential losses – reinstatement – fees on Ryde’s Scale – inconvenience – compensation determined at £5,886.16

 

IN THE MATTER OF A NOTICE OF REFERENCE

 

 

BETWEEN                     GRAEME AND ROSEMARY SURTEES                                    

Claimants

                                                                           and

UNITED UTILITIES WATER plc                     

Compensating

Authority

 

Re:  Land adjacent to Snuff Mill Lane

Stodday Village

Aldcliffe

Lancaster

LA2 0AG

 

Before: P D McCrea FRICS

 

Sitting at: Kendal Magistrates Court, Kendal, Cumbria, LA9 4TJ

 

On

 

11 June 2015

 

Mr Graeme Surtees, the first appellant, for both appellants

Ms Katie Rowan MRICS for the compensating authority

© CROWN COPYRIGHT 2015

DECISION

Introduction

1.                  This short decision is about a claim by Mr Graeme Surtees and Mrs Rosemary Surtees against United Utilities Water plc (“the company”) in respect of the installation by the company of a water main under land belonging to the claimants which is adjacent to Snuff Mill Lane, Stodday Village, Aldcliffe, Lancaster, Cumbria, LA2 0AG (“the claimants’ land”).  The work was carried out pursuant to the Water Industry Act 1991 (“the Act”) in connection with the company’s adjacent water treatment works.

2.                  The hearing was conducted under the Tribunal’s simplified procedure.  Mr Surtees spoke for himself and his wife.  Ms Katie Rowan MRICS, a senior surveyor employed by the company, spoke for United Utilities.  Mr Brian McBurney, Project Co-ordinator for the Company and Mr Paul Johnson a Construction Manager at Balfour Beatty also attended.

3.                  On the afternoon before the hearing, I conducted a site inspection accompanied by the parties.  Following the hearing, I made an Order requiring the parties to carry out a joint measurement of the site, and to provide further information in support of their respective cases.  As a result of this, the issues between the parties narrowed, and this decision is in respect of the items that remain in dispute.

Facts

4.                  From the evidence and my inspection of the claimants’ land I find the following facts.

5.                  On 28 November 2012 the claimants received a notice from the company under section 168 and schedule 6 to the Act which gave notice that the company wished to carry out site investigation works on the claimants’ land after the expiry of seven days from 22 November 2012.  Two trial holes were dug by hand by the company’s contractors on or about 4 December 2012.  On 3 January 2013, the claimants received further notice from the company under sections 159, 168 and schedule 6 to the Act, giving notice of the company’s intention to lay a water pipe and carry out works on the claimants’ land at the expiry of three months from 3 January 2013. 

6.                  The main work was carried out between 1 July and 10 July 2013.  It involved the laying of a 63mm underground water pipe along the western boundary of the claimants’ land.  The pipe was laid by digging six holes of varying sizes at periodic intervals along the boundary, with the pipe then being installed by way of a “mole”.  The excavated top soil and sub-soil from the holes was placed around each excavation, during which it was inadvertently combined.  When excavated, the holes were protected by way of temporary plastic low-height fencing but this was not stock proof and the claimants were advised to remove their stock from the land for the duration of the work. Re-instatement of the soil was carried out by the company. It is (now) common ground that this was done incorrectly, not least because the new top layer was a mixture of top soil and subsoil, when they should have been kept separate.

7.                  There are three different land areas involved in this case. The first is the combined area of the excavations, which the parties agree was 67.92 sqm.  The second is the combined area of excavated areas, plus the land immediately surrounding them, all of which requires reseeding, which has not yet taken place.  The parties agree that this is 360 sqm.  The final area is that wider area which the claimant says was affected by the work, including over which excavators and other vehicles were driven.  Mr Surtees submitted that this area was 0.26 acres.  Ms Rowan said that this should be no larger than the 360 sqm agreed.    The 360 sqm figure was, in each case, something in the order of 2m wider than each trench, which I find to be too narrow to be realistic as the totality of the area affected by the work. I accept Mr Surtees figure and find as a fact that the wider area affected was 0.26 acres.

8.                  Relations between the claimants and the company could not be described as warm.  Previous drainage work on the claimants’ land carried out by the company had soured the relationship and the claimants, having considered that they had “given in” in negotiations for the previous work say that were determined not to do so on this occasion.  A mediation meeting took place, arranged at the claimants’ request, at which the claimants were advised by the company that if the company’s offer was not acceptable, the claimants would have to make a reference to the Tribunal for determination of the matter - which they subsequently did.

9.                  By the time of my site inspection, the excavated areas had grown over and in some instances it was difficult to see where the excavated areas had been without Mr Surtees’ guidance.  Whilst there were undulations on the excavated areas, in one particular location the excavated area had sunk significantly.

The claim

10.              At the hearing Mr Surtees spoke to a claim of £14,621.28, comprising:

Field area claim for loss of production                                               £382.30

Subsequent loss/weed control                                                 £270.93

Claim for consequential loss                                                   £37.05

Cost of reinstatement                                                              £11,592.00

Professional fees (at Ryde’s Scale + 30%)                             £ 1,339.00

Claim for inconvenience/goodwill                                          £ 1,000.00

 

Loss of Production

11.              This head of claim is in respect of that area of land, including and surrounding the excavated areas, that was affected by the company’s machinery, diggers etc, which the claimants could not use as grazing for a period of two years following the work.  There was no dispute between the parties that grazed grass in the locality would produce 3.676 tonnes of dry matter per acre, assuming growth between the months of April to September inclusive, nor that two years was an appropriate period of claim.

12.              Mr Surtees said the cost to replace this dry matter would be at £200 per tonne.  Ms Rowan maintained up to and during the hearing that the appropriate cost was £100 per tonne, but subsequently agreed that £200 was appropriate, including the cost of concentrates.

13.              Mr Surtees’ calculation of the value of lost grazing was 3.676 tonnes per acre @ £200 per tonne x 2 years x 0.26 acres 

14.              At issue between the parties is the last element of that calculation.   Having found above that the wider area affected was 0.26 acres, I am satisfied that the claimants’ figure of £382.30 is valid, and I award it to them.

Subsequent loss/ weed control

15.              This head of claim is based upon the additional cost of loss of use of the land and the cost of further work required to eradicate weeds from the areas affected over a subsequent three year period.  The claimed amount of £270.93 was again based on an area of 0.26 acres. Ms Rowan offered £92.74, based upon 360 sqm (or 0.089 acres).  All other aspects of this head of claim were agreed.  Again, having found that the area affected was 0.26 acres, I award the claimants the amount claimed of £270.93.

Consequential loss 

16.              This concerned the cost during the months over two winters for which sheep agistment was required in respect of the wider area affected.  Again, the only issue between the parties’ contentions (£37.05 claimed by Mr Surtees and £12.68 offered by Ms Rowan) was the area affected. On the above basis, I award to the claimants the sum of  £37.05

Reinstatement

17.              This is the main element of the claim, and essentially concerns the cost of removing the incorrectly laid topsoil/subsoil mix, refilling with fresh topsoil and reseeding. In addition there are peripheral items including stone picking and rolling.

18.              Despite my encouragement, neither party provided subsequent real clarification on this item.  Mr Surtees originally submitted a quotation from a local contractor in the sum of £9,660 plus VAT.  This was based upon the reinstatement of 320 tonnes of top soil.  He accepted at the hearing that this was likely to be in respect of the area of 0.26 acres, rather than the areas immediately around the trenches.  In my judgement, his quotation was inadvertently in respect of 0.26 acres (or 1,052 sqm).

19.              Ms Rowan said that the claim for reinstatement was excessive.  In subsequent correspondence, despite submitting a quote from a contractor, Singleton Landwork Ltd, in the sum of £4,664.00, Ms Rowan said that the appropriate amount of compensation, based on Mr Surtees’ contractor’s quote but for a smaller land area, should be £936.23. There was no explanation as to how this was arrived at.

20.                The claimants maintain that they wish the company to carry out the reinstatement.  The company wishes to come to a financial settlement of compensation.  As I explained at the hearing, the Tribunal’s jurisdiction under Schedule 12 to the Act is to compensate the claimants by way of a monetary award.  It does not have the power to order specific performance as Mr Surtees wishes.  I have taken Mr Surtees’ contractor’s quotation as the basis of my determination for two reasons. First, unless the parties agree otherwise, it will be the claimants that will be arranging for the work to be done.  Secondly, the only point with which Ms Rowan took issue was in respect of the area involved in Mr Surtees’s quotation, rather than referring to the Singleton Landwork quote.

21.              The quote from Mr Surtees’ contractor was as follows:

Spray areas to remove weed and supply spray:                                  £150.00

Remove sub soil to a depth of 6 inches:                                 £896.00

Dispersal of sub soil:                                                               £3,200.00

Supply and delivery of 320 ton[1] top soil @ 13.95 per ton:    £4,464.00

Cultivation of affected areas:                                                 £150.00

Supply of grass seed and sowing:                                           £250.00

Stone picking and removal:                                                     £250.00

Rolling Area:                                                                           £150.00

Post emergency spraying:                                                        £150.00

 

                                                                                                £9,660.00

                                                            VAT at 20%                £1,932.00

 

                                                                                                £11,592.00

                       

22.              As indicated above, I find that this was in respect of 0.26 acres (1,052 sqm) whereas it should have been in respect of 360 sqm. 

23.              In the absence of any better evidence or submissions from the parties, I determine the compensation for reinstatement by the following method.   The appropriate cost of the removal of subsoil/topsoil and its dispersal can be calculated by applying a ratio of:

360 sqm  (the agreed area)

                                                1052 sqm (ie 0.26 acres)

to the above quoted amounts of £896.00 and £3,200.00, to arrive at £306.62 and £1,095.00 respectively.

24.              I calculate the correct amount for the replacement topsoil as follows. At a depth of 6” as quoted (or 0.15m), the agreed surface area of 360 sqm would equate to 54 cubic metres. As a volume to weight ratio, Mr Surtees said that 1 cubic metre of topsoil would weigh 2 tonnes, Ms Rowan said it would weigh 1.5 tonnes.  In the absence of any evidence in support of either of these claims, I have adopted 1.75 tonnes as a middle ground.    Accordingly the 54 cubic metres to be replaced would weigh 94.5 tonnes.  Using the quoted £13.95 per tonne, which I accept, this produces a cost for topsoil of £1,318.28.

25.              In respect of the peripheral items, spraying, cultivation etc, a pro-rata reduction is not appropriate as the contractor’s invoice mentions that a minimum charge would apply of £100.00 per operation.  I consider that to be reasonable, and have added £100.00 for each of the remaining six elements of the quote.

 

26.              I therefore determine that the appropriate compensation for reinstatement is as follows:

Spray areas to remove weed and supply spray:                      £100.00

Remove sub soil to a depth of 6 inches:                                 £306.62

Dispersal of sub soil:                                                               £1,095.00

Supply and delivery of 94.5 tonne top soil

@ 13.95 per tonne:                                                                 £1,318.28

Cultivation of affected areas:                                                 £100.00

Supply of grass seed and sowing:                                           £100.00

Stone picking and removal:                                                    £100.00

Rolling area:                                                                            £100.00

Post emergency spraying:                                                       £100.00

 

                                                                                                            £3,319.90

                                                                        VAT at 20%                £663.98

           

                                                                                                            £3,983.88

Fees

27.              Mr Surtees represented himself and his wife.  He was, however, more than a litigant in person, as he is qualified in the field of agriculture and represents clients in matters such as this dispute.  Ms Rowan’s position on fees varied over the course of the dispute, but in the end she accepted that the company would pay fees based on Ryde’s Scale plus 30%.  The aggregate of my awards to the claimants to this point totals £4,674.16.   This lies between the parameters of £4,500 and £4,999 in Ryde’s Scale, for which the appropriate fee is £740.00.  Adding 30% gives £962.00 and I award this to the claimants.

Inconvenience/Goodwill

28.              The claimants claim £1,000 in respect of inconvenience and as a goodwill figure.  Ms Rowan offered £250 based upon 11 hours work of farm management time at £20 per hour plus an extra two hours at £15 per hour for extra husbandry duties.

29.              I am not satisfied that the claimants have provided sufficient tangible evidence for me to make an award in excess of the amount the company offers under this head, and I therefore determine that the appropriate amount of compensation for disturbance is £250.00

Summary

30.              I therefore determine that the amount of compensation payable to the claimants under Schedule 12 to the Water Industry Act 1991 is as follows:

Field area claim for loss of production                                               £382.30

Subsequent loss/weed control                                                 £270.93

Claim for consequential loss                                                   £  37.05

Cost of reinstatement                                                              £3,983.88

Professional fees (at Ryde’s Scale + 30%)                             £962.00

Claim for inconvenience/goodwill                                          £250.00

 

                                                            Total:                           £5,886.16

31.              I direct that the compensating authority shall pay the sum of £5,886.16 to the claimants.  I very much hope that, given the time since the company entered on and damaged the claimants’ land, it will pay this compensation without further delay.

32.              It is appropriate to add some general observations about this matter.  In my judgement, the claimants were unreasonably prevented from obtaining an early settlement of their claim by the fairly intransigent attitude of the company, which effectively adopted a take it or leave it approach.  Mr Surtees was obviously not put off by the prospect of taking his case to this Tribunal as some landowners might have been, but in my judgement he should not have had to incur the time and expense of doing so, with this final determination coming virtually two years to the day since the works were carried out.  I am satisfied that Mr and Mrs Surtees did everything they could to settle the matter, including taking the lead in arranging a mediation meeting.  It is disappointing that the full acceptance of some of the points of principle by the company came so late in the day – indeed after the hearing had taken place.  The company’s position throughout negotiations over the two year period was that reinstatement had taken place satisfactorily.  It was only by taking the issue to a hearing that Mr Surtees was able to force the company to accept that this was not the case.  For a public company, dealing with one of its customers, and exercising its statutory powers of compulsion, that is a disappointing stance to take.

33.              I was also troubled by Ms Rowan’s attitude to providing evidence to me, and to her changing position on many of the points in dispute, which I described at the hearing as being unhelpful.  It is unedifying for Chartered Surveyors, having agreed a certain head of claim, to then withdraw from that agreement just before a hearing, as part of some bargaining position. 

 

 

 

P D McCrea FRICS

9 July 2015