Griffiths & Anor v City & County Of Swansea [2003] EWLands ACQ_35

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Lands Tribunal

You are here: BAILII >> Databases >> England and Wales Lands Tribunal >> Griffiths & Anor v City & County Of Swansea [2003] EWLands ACQ_35_2002 (22 August 2003)
URL: http://www.bailii.org/ew/cases/EWLands/2003/ACQ_35_2002.html
Cite as: [2003] EWLands ACQ_35_2002

[New search] [Printable RTF version] [Help]

[2003] EWLands ACQ_35_2002 (22 August 2003)

ACQ/35/2002

LANDS TRIBUNAL ACT 1949

COMPENSATION – Compulsory acquisition of agricultural land for strategic redevelopment - actual and assumed planning permission (ss 14-16 Land Compensation Act 1961) – abnormal development costs – valuation – compensation £500,000

IN THE MATTER of A NOTICE OF REFERENCE

BETWEEN JESSIE MARIANNE GRIFFITHS and Claimants

SARA ELIZABETH LLEWELLYN-JONES

and

CITY AND COUNTY OF SWANSEA Acquiring

Authority

Re: Land at Walters Road, Llansamlet, Swansea

Tribunal Member: P R Francis FRICS

Sitting at: The Guildhall, Swansea, SA1 4PN

on

18 – 21 March 2003

The following cases are referred to in this decision:

Hooper v City and County of Swansea (2000) (LT) ACQ/68/1997 (Unreported)

Myers v Milton Keynes Development Corporation [1974] 1 All ER 1096

Point Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands [1947] AC 565 at p 572

Roberts v South Gloucestershire District Council [2003] RVR 43

Purfleet Farms Ltd v Secretary of State for the Environment, Transport and the Regions [2002] RVR 203

John Blackmore instructed by John Collins & Partners, solicitors of Swansea, for the claimant

Milwyn Jarman QC instructed by Legal and Administrative Services, City and County of Swansea, for the acquiring authority

DECISION

INTRODUCTION

This is a reference to determine the compensation payable to Mrs Jessie Marianne Griffiths and Miss Sara Llewellyn-Jones (acting in her capacity as executor of the estate of Mr E L Griffiths Deceased) ("the claimants") by City and County of Swansea ("the acquiring authority" or "the council") for the compulsory acquisition of two freehold parcels of land fronting Heol Las and Walters Road, Llansamlet, Swansea ("the subject land") under the Swansea (Town Planning) (Swansea Vale, Llansamlet) Compulsory Purchase Order 1994 ("the CPO"). The CPO was made on 3 May 1994 and confirmed by the Secretary of State for Wales on 4 October 1995. The subject land was vested in Swansea City Council (the predecessor to the acquiring authority) on 27 February 1996 – the agreed valuation date for the purposes of this reference.

The claimants' valuation was in the sum (amended during the hearing following various agreements and further consideration between the experts) of £655,000 on two alternative bases. Firstly, assuming the planning permission granted on 17 March 1994 could be taken into account, detailed approval would be received for a development of 60 houses on part of the land within 12 months. In addition, there was long-term hope value for a further 46 units. Alternatively, if the 1994 consent could not be taken into account, outline consent and detailed approval to a new application for 60 houses would be achieved within 18 months, again with hope value for a further 46. The acquiring authority's valuation (also amended during the hearing and subsequently following reconsideration of elements of projected development costs) was for £126,500, it being the case that although it could be anticipated that planning permission for a development of 60 houses (and no more) would eventually be forthcoming, that situation would not arise for at least 10 years from the valuation date.

The Notice of Reference to this Tribunal was dated 11 February 2002.

Mr John Blackmore of counsel appeared for the claimants and called:

Mr Andrew Muir BSc Econ (Hons) Dip TP MRTPI who gave planning evidence

Mr Christopher Gray BSc CEng FICE MCIWEM who gave evidence on ground conditions

Mr Rod Perons MRICS FAAV who gave valuation evidence

Mr Milwyn Jarman QC appeared for the acquiring authority and called:

Mr Mark A Scoot BSc (Hons) Dip TP Dip Surv MRTPI MRICS who gave planning evidence

Mr John E Peacock BSc C Eng MICE MIHT who gave evidence on ground conditions

Mr Robert W Harlow BSc MRICS who gave valuation evidence

Following the hearing I invited written submissions from counsel, these being received between 16 April and 5 May 2003.

FACTUAL BACKGROUND

The parties produced, and during the hearing updated, schedules of agreed facts from which, together with the evidence and my inspection of the subject land on 17 March 2003, I find the following:

The Subject Land

The land consists of two separate parcels divided by a railway embankment and which, in the Swansea Vale Development Scheme (to which I shall refer later) were identified as Plot 6 and Plot 29. They are located in a predominately rural area about 4 miles north-east of Swansea City Centre, just over ½ mile to the north of the residential settlement of Llansamlet and west of Birchgrove. At the valuation date both areas of land were, and indeed still are, laid to grazing and used for agricultural purposes. Plot 29 is a small, roughly triangular area of agricultural accommodation land sandwiched between the embankments for the M4 motorway to the north-east, and the mainline railway to the south-west, with a short road frontage to Heol Las (an extension of Walters Road). It extends to 0.42 ha (1.04 acres) and has, centrally located within it, a high-voltage electricity pylon. The parties have agreed that there is no development potential on that plot and that its value on an agricultural basis is £3,400. It is not therefore an issue for consideration in this reference, other than as a part of the total compensation to be paid.

Plot 6, which extends to 5.31 ha (13.12 acres), lies immediately to the south-west of Plot 29, on the other side of the railway embankment. It is again roughly triangular in shape with the railway embankment forming the north-east boundary, Walters Road (with a frontage of about 340 metres) lying to the north-west and open fields lying to the south. The land, together with the fields to the south and those on the opposite side of Walters Road is predominately level, but the subject land is slightly undulating with some of the lower parts being marshy and subject to poor drainage, although there are a number of open land drains. The site is crossed by a former tramway that runs in a north to south direction and is raised, through fill, to a slightly higher level than the surrounding land. It is also the line of a public footpath, and a gas main and 48 inch water main run beneath it. In addition, the land is traversed by a high voltage power line and there are two long-established man-made raised areas which, following bore-hole tests, are confirmed to be predominately of sand.

Walters Road runs between Llansamlet and Birchgrove and contains all mains services although none are connected to the subject land.

The parties have agreed that the land is not contaminated, but is affected in part by the zone of influence of the Drews coal seam. In areas where rock cover is insufficient over the old mine workings, grouting would be required, as part of the development process, under house footprints and site roads. Houses built over the seam would also need reinforced raft foundations at an additional cost of £1,000 per plot, inclusive of fees.

The public sewers in Walters Road, into which any foul drainage from a development would feed, are of insufficient depth to be directly accessed through natural falls, and the cost of providing pumping facilities is agreed at £25,000, inclusive of fees.

Planning History

The Development Plan

At the date of valuation the development plan covering the subject land consisted of the West Glamorgan Structure Plan (Review No.2) (the Structure Plan) and the Swansea Local Plan (the Local Plan).

The Structure Plan was adopted by the former West Glamorgan County Council on 15 February 1996. The accompanying key diagram showed the subject land as falling within the "existing built up area". The key to the key diagram stated:

"This diagram is not the Structure Plan. Its purpose is solely to assist in understanding the location of policies described in the Written Statement."

The County Council's housing strategy as set out in the Written Statement contained the following five distinct elements:

"i Release of sufficient land to permit the development of 20,000 new dwellings in the county by 2006, on a wide range of sites to meet local needs, avoiding valuable landscape, ecological and heritage features.

ii Encouragement of residential development on derelict, vacant and underused sites in urban areas, to bring about environmental improvements and alleviate development pressures on the countryside.

iii Strict control over further development in environmentally sensitive areas such as Gower, and areas of infrastructure constraint such as West Swansea.

iv Support for the development of Swansea City Council's Tawe Vale proposals and major new housing schemes proposed at Waunceirch, Swansea Docks and Aberavon Seafront.

v The encouragement of substantially increased levels of house-building in East Swansea and Port Talbot."

The structure plan contained a number of specific housing policies relating to future residential development within the county. Extracts from the first three policies are set out below:

Policy H1:

"Land will be made available for the development of approximately 20,000 new dwellings in West Glamorgan during the period mid 1991-2006 distributed by district as follows:

Swansea 9,200

Lliw Valley 4,800

Neath 3,200

Port Talbot 2,800

Policy H2:

"The development for housing of derelict, vacant or underused sites within existing urban areas will be encouraged, subject to there being no overriding local planning, environmental or highway considerations".

Policy H3:

"Within Swansea sufficient land will be made available to enable development, up to the year 2006, as follows:

(i) Approximately 7,600 new dwellings in north, east and central Swansea on a wide range of sites spread throughout the area, including Tawe Vale.

(ii) No more than 1,600 dwellings in west Swansea, where new housing will be restricted to infilling and rounding off the existing urban area in line with established commitments.

For the purposes of this policy (i.e. H3 (ii)) "infilling" is defined as development of a site within the existing urban area, generally for relatively few dwellings, but occasionally for up to 100 dwellings on larger sites. "Rounding off" should take development to a clearly defined boundary, which does not then create a precedent for further land releases.

(iii) In the Gower fringe settlements limited infilling and small-scale rounding off, as well as minor extensions to existing settlements required to meet proven local housing needs.

For the purposes of this policy "limited infilling" means sites for up to about six dwellings within the boundary of an existing settlement. "Small scale rounding off" of a settlement will only be considered where identified in the local plan, and where development takes the developed area up to a clearly defined boundary which does not then create a precedent for further land releases.

(iv) Within the Gower Area of Outstanding Natural Beauty, there will be a strong presumption against further new housing other than on suitable plots within the boundaries of an existing settlement or developments required to meet the overriding economic or social needs of a local community.

For the purposes of this policy only sites for one or two dwellings clearly within the boundaries of an existing settlement will normally be considered as 'suitable'."

The subject land forms part of an area to which Policy H3(i) applied.

The Swansea Local Plan was adopted by Swansea City Council in December 1989. It showed part of the subject land as subject to policy H1 (new housing) (a triangular section to the south-west corner), policy E2 (contingency site for major redevelopment schemes) and R6 (informal open space and landscaped areas).

Policy H1 stated that:

"IT IS THE POLICY OF THE CITY COUNCIL THAT THE SITES INDICATED ON THE PROPOSALS MAP AND IN THE LAND SUPPLY SCHEDULE BE ALLOCATED FOR RESIDENTIAL DEVELOPMENT IN ORDER TO MEET THE LAND SUPPLY REQUIREMENTS SET OUT IN THE STRUCTURE PLAN ALTERATION NO.1 ..."

An area including the subject land was referred to in the explanatory text as follows:

"Land north of Llansamlet adjacent to the proposed industrial contingency site proposed in policy E2 has residential development potential as part of an overall comprehensive development scheme. The land is not required to meet current local plan need estimates but it will be required in the longer term. The area is indicated on the proposals map, and it is intended that piecemeal development in the short term should not be allowed to prejudice longer term comprehensive development."

Policy H2 said:

"It is the policy of the City Council that unless there are overriding planning objections there will be a presumption in favour of development for residential or ancillary purposes on appropriate small infill plots".

Policy E2 said:

"IT IS THE POLICY OF THE CITY COUNCIL THAT FURTHER LAND ADJACENT TO THE ENTERPRISE ZONE, NORTH OF LLANSAMLET BE RESERVED AND PREPARED AS A CONTINGENCY SITE FOR MAJOR REDEVELOPMENT SCHEMES"

Amplification: This land is strategically located adjacent to Swansea Enterprise Zone. It has good links to the M4 motorway and have a new link to the strategic rail system.

The purpose of this policy is to ensure that the land is kept available for a major employment and other development opportunities relating to a 'gateway' development concept. Piecemeal development in the interim will not be allowed. It is anticipated that agricultural use will continue until such time as the land should be required for development.

The local plan covered the period to the end of 1991. The introduction to the written statement indicated that:

"This is not a rigid end date. Many policies will continue to be relevant beyond 1991."

A review of the local plan was commenced in 1993 and, by the valuation date, was at the consultation draft stage. This plan identified the subject land together with a large area of open land as forming part of the Swansea Vale proposals, a comprehensive scheme involving open space provision, housing and commercial development extending to some 450 acres.

The council, aspiring to major regeneration of the area, went on to produce the Swansea Vale Development Strategy and subsequently formed a partnership with the Welsh Development Agency, the result of which was the scheme under which the subject land was acquired.

Outline planning permission (the scheme permission) was granted, subject to 35 conditions, by the City of Swansea on 17 March 1994 for a "mixed development for residential, leisure, commercial, industrial, hotel and community usage" on approximately 182 ha (450 acres) of land at Tawe Vale and this included the whole of the subject land. The parties have agreed that, in respect of any permission that might have been granted on the subject land absent the scheme, all of the imposed conditions, other than those relating to the proposed spine road and river bridge would have been applied.

In planning terms, the parties have agreed that the Structure Plan (Review No 2) and the 1989 Local Plan described above were those relevant to the subject land at the valuation date for the purposes of section 54A of the Town and Country Planning Act 1990. The emerging Swansea Vale Concept Plan was the most up to date reference to the Swansea Vale Development Strategy at that time. On the basis of advice from the Highways Authority, it is agreed that the extent of development on the subject land (Plot 6) at the valuation date would have been limited by the road capacity in the area to no more than 60 dwellings. Any further development would rely upon the removal of that highway restriction.

The parties have agreed that if the subject land could have been developed for 60 houses at the valuation date, and construction of those 60 dwellings would be at a density of 25 houses per hectare (10 houses per acre), 2.43ha (6 acres) of the gross site area would thus be utilised. The value of land for development at that density was agreed at £325,000 per ha (£130,000 per acre). In terms of deferment (if applicable), the rate was agreed at 12%. The value of the land, on a purely agricultural basis was agreed at £42,500.

THE SCHEME

Although both parties referred to "the scheme" for the purpose of making their submissions on the planning permissions to be assumed, and the approach to valuation, the scheme was never identified with precision. The area of the CPO was 135 ha (333 acres) and the area of the planning permission was 182 ha (450 acres). The scheme, I find, was the development of the Swansea Vale area for purposes that were recorded as follows in the inspector's report on the CPO inquiry:

7.5 The development proposals are set out in the Swansea Vale Development Strategy (Doc 5 SCC Doc 1). This was revised in May 1994 to take account of the Environmental Assessment (Doc 5 SCC Doc 15) and the Landscape Opportunities document (Doc 5 SCC Doc 16).

7.6 The scheme makes provision for 40 ha of industrial and commercial development with a potential to create approximately 3,500 jobs. 48 ha of housing land with a capacity for 1,450 new homes. An 18 hole golf course and associated facilities. A prime office/hotel site associated with the golf course at junction 44. An improved road network, based on a spine road linking the A4067 via a new river bridge and junction 44. A riverside park and path, and an extensive network of green corridors.

The planning permission granted was for the purposes of this development.

ISSUES

The issues fall into two categories, planning and abnormal costs, the evidence upon which I consider below before turning to the matter of valuation. The planning issues are these:

1) The application of sections 14-16 of the Land Compensation Act 1961, and in particular (a) whether the outline planning permission of 17 March 1994 can be taken into account and (b) whether any other permission is to be assumed under these provisions.

2) If the outline planning permission can be taken into account, whether details would have been approved under it for development of the subject land separately from other land, what development would have been approved, and when it would have been implemented.

3) Whether, in the absence of the scheme, planning permission would have been granted for development of the subject land, for what development, and when.

On abnormal development costs, the issues are:

a) the need for, and extent of, any grouting required in respect of the Drews coal seam, and the costs associated with it;

b) the need or otherwise for attenuation measures in respect of storm water drainage and green field run-off ;

c) the need or otherwise for an electricity transformer on the site, and the cost of its provision;

d) the need or otherwise for re-distribution of existing fill on the land, and the importation of further fill;

and the costs that would have to be met in consequence.

THE EVIDENCE

PLANNING

Mr Muir is a member of the Royal Town Planning Institute and was appointed managing director of Harmers Ltd in 2001, following a number of years as a land director with major residential housebuilders. He produced a supplementary report that had just been prepared and which set out the current situation regarding the areas of disagreement on planning issues between the parties. Mr Muir said he had referred to, and in general terms agreed with, the contents of the report that had initially been prepared for the claimant by a Mr Graham Carlisle MRTPI, who was no longer acting.

The experts had agreed that the relevant development plans for determining the planning status and prospects for the land were the Swansea Local Plan adopted in 1989 and the West Glamorgan Structure Plan (Review No 2) which was adopted on 15 February 1996. Whilst accepting that the latter was not site-specific, Mr Muir said that it was the Structure Plan that would have carried more weight than the Local Plan which, by the valuation date, was out of date as the plan period had expired in 1991. The Structure Plan Review had only just been completed by the valuation date and covered the period 1991 to 2006 – that being beyond the period of the Local Plan.

Although the Swansea Local Plan period expired in 1991, the introduction to it stated that 'many of the policies will continue to be relevant beyond 1991' and 'the plan is, therefore, designed to accommodate subsequent adaptive planning and response to opportunities and problems as they arise'. The Local Plan Review Consultation Draft of April 1995 took into account the strategic context for West Glamorgan that had been updated by the second review of the Structure Plan. The review covered the period 1993 to 2003, contained land use allocations that were anticipated to be developed over this timespan and identified the need to produce a new local plan in the context of the Structure Plan review. The Local Plan Review could therefore be described as the 'emerging Local plan' and it anticipated a need for 6,133 new dwellings over the plan period. It also estimated that 1,200 of these would be developed in Swansea Vale over that period.

Mr Muir said in his original report that as the emerging Local Plan was developed in the context of the Structure Plan Review that had, by the valuation date, been adopted, it provided relevant support for the contention that approval of reserved matters under the extant planning permission on the subject land would have been immediately forthcoming. Development of the land for 60 houses would have been consistent with the policies and strategy of the development plan, the criteria within the 5 distinct elements in the Council's housing strategy [para 15 above] clearly being met. Whilst it was accepted and agreed that the then current road capacity restricted proposed development with access off Walters Road to no more than 60 units, Mr Muir said that there would also have been considerable hope value (a 60 per cent chance) for the eventual construction of a further 46 residential units on the remainder of the land (subject to the constraints caused by the power lines). This was because, during the Structure Plan period, it would be likely that highway improvements would have been made to accommodate further development in the area. A developer would have seen the subject land, not only as a site for the immediate construction of 60 units, but as one with potential for further development in the medium to long term, and as a key to the provision of access to further development areas to the south.

It was a fact that, at the valuation date, there was an extant planning permission on the subject land (as part of a very much wider area) obtained by the acquiring authority in connection with the Swansea Vale Concept (known as the Tawe Vale Development Strategy), that concept having been initiated in 1991, revised in 1994 and again in 1999 after the valuation date. The permission (No. 94/0078), granted on 17 March 1994, was for a "mixed development for residential, leisure, commercial, hotel and community usage" and it was accepted that this was the scheme under which the land had been compulsorily acquired. That outline permission would have lapsed in March 1997 and it was Mr Muir's view that a developer acquiring the land with the benefit of that permission would have submitted a reserved matters application to ensure that the permission did not expire.

The conditions that were attached to that permission were relevant to any permission that would have been achieved in a no-scheme world if the extant permission could not be taken into account, and in that regard it was agreed with Mr Scoot that those which did not relate to the requirement for the construction of a spine road before development could take place, or the proposed river bridge, would have been imposed. The applicable conditions included a phasing requirement which stated (Condition 04): "The development hereby permitted shall be implemented in accordance with a phasing programme which shall be agreed with the local planning authority, in consultation with the County Council as highway authority. Each phase of the development shall be in accordance with detailed development briefs which should be prepared for each parcel of land…" Mr Muir said that due to the fact that the subject land was the most suitable of all the parcels defined in the permission, all the others in and between Llansamlet village and the subject land having problems over access, contamination or other factors affecting the potential for the erection of 60 units, an application for the development of plot 6 as the first phase would have been approved. He did not agree with Mr Scoot's contention that the requirement would have been for development to 'fan-out' from Llansamlet, thus preventing development taking place in a piecemeal fashion.

Mr Muir referred to plots 12 and 13 (in the scheme planning permission) off Church Road, Llansamlet, whereby the planning inspector had said the proposed means of access via the Church Hall site was not acceptable on highway grounds. Plot 11 is a former canal, overgrown with weeds and as such is an unattractive development prospect. Plot 9 (Gwernllan Farm), although slightly larger than the subject land, and with access off Walters Road, did not have a long enough road frontage to permit the requisite vision splays for access. Furthermore, it had formerly been used, in part, as a landfill site and with the risks from contamination and gas production (spreading out beyond the actual landfill area) it was inherently unsuitable for residential development. Indeed, Mr Muir said, the key on the plan stated "Category C site, possible gas producer, assumption against erecting buildings". Plot 8 is a large parcel between Llansamlet and the subject land (its northern boundary abutting the southern boundary of the subject land), but it has no road frontage. Plot 7, between it and Walters Road was effectively a ransom strip, but even if the owner of plot 8 could have come to an arrangement with the owner of plot 7, the latter had a restrictive covenant preventing use other than for agricultural purposes.

Mr Muir said that a number of other small plots off Peniel Green Road in Llansamlet were either too small for a development of 60 units, or otherwise had access problems. The land to the west of Walters Road has a presumption against development, it comprising a significant area of marshland. In summary, therefore, Mr Muir said that the local planning authority would have found it extremely difficult to refuse an application for reserved matters on the subject land at the valuation date. In his view, approval of those reserved matters could have been achieved within 1 year.

The issue of the power lines was one upon which he and Mr Scoot disagreed. Although Mr Muir accepted that it was a condition (21) of the scheme planning permission that "…there shall be no residential development within 50 metres of any High Voltage Overhead Power Lines" he thought that an application for that to be reduced to 15 metres each side would have been successful. There was no policy context upon which the 50m figure had been based, although Policy HP11 in the emerging local plan and the Swansea Local plan consultation draft of April 1995 stated that "New allocations for development within 50m of an electricity sub-station, overhead power line or underground high voltage cables will not be permitted unless it can be demonstrated that no reasonable harm from non-ionizing radiation will be caused to future users of the development".

A developer would, Mr Muir said, have been confident that such a restriction would not have made it into the adopted Local Plan. This is because, when a similar proposal was included in the deposit draft of the Swansea Local Plan Review No 1 in March 1996, the inspector concluded that "the sort of policy put forward by the Council is not justified on scientific grounds…" He recommended that the Policy be modified to state (and it was so included in the adopted Swansea Local Plan Review in 1999): "The Council will have regard to the National Radiological Protection Board concerning the electro-magnetic effects of high voltage overhead lines (132 kv and above) in determining applications….."

In any event, Mr Muir said, even if the developer was not successful, there was a clause in the wayleave agreement allowing the landowner/developer to terminate the agreement upon giving one years written notice to terminate it if the route of the power lines seriously interfered with development. The possibility, therefore, of the developable area of the land being insufficient to accommodate up to 106 residential units, did not arise.

In cross-examination, Mr Muir said that whatever the specific allocation of the subject land may have been in the 1989 Local Plan, the emerging Local Plan, or the Structure plan the fact was that there was, admittedly in connection with the scheme, planning permission for residential development on the site, and that could not be ignored. Whilst he accepted that there would be a phasing requirement in respect of development in the area, which part of the wider development that came through first would be down to implementability. As his evidence had shown, this was the most suitable site, and would therefore have been the first to come through.

Mr Muir accepted that the planning inspector had said that plots 12 and 13 were appropriate for residential development, but the question of access was not dealt with. It was also a fact that some of the land on these plots was made ground and, he said, that information would have been available to the developer at the relevant time. As to plot 9, the fact that compensation was paid to the owner on the basis of 5 plots to the south-east, and 26 plots to the north (of the landfill area) was not relevant. In the real world, Mr Muir said, a developer would have avoided that site 'like the plague'.

On the question of timing, Mr Muir said that there would be many developers competing for sites, and on the basis that they could put forward a strong case as to why the subject land was the best site, would take a view and, in all likelihood, proceed. In any event, the planning context was for this area to be developed and it was likely that a developer would obtain a specialist planning report as part of his investigations. The presumption against piecemeal development and the questions of phasing would, as he had said, be overridden by the suitability of the site.

Mr Muir did not accept that, in terms of the development plan assumptions, the subject land was in the middle of open countryside although he acknowledged that, as far as the 1989 local plan was concerned, neither the subject land, or the site that was the subject of this Tribunal's decision in Hooper v City and County of Swansea (2000) (LT) ACQ/68/1997 (Unreported) were in the land supply schedule. He did not agree with the comment in para 80 of that decision (which related to a compulsory acquisition in connection with the same scheme) where Mr N J Rose FRICS said:

80. "The subject land was not included in the land supply schedule. It is true that, in amplification of policy H1, the written statement indicated that the land had residential development potential as part of an overall comprehensive development scheme in the longer term and Mr Huw Jones accepted that "the longer term" included the valuation date. In my judgment, however, this does not alter the fact that at that date the 1989 Local Plan was still the extant development plan, and it did not allocate for residential development sites which were not included in the land supply schedule".

As Mr Muir had said, in his view the 1989 Local Plan was no longer extant. He therefore agreed with para 81 in Hooper where Mr Rose said:

81. "….In my opinion, the result of any such planning application must be considered in the light of the provisions of the structure plan, which had been adopted shortly before the valuation date".

During the course of the hearing, it became evident that that there had been some confusion as to whether it was to be assumed that planning permission existed (in accordance with the permission granted under the scheme), in terms of assessing compensation, at the valuation date. Mr Muir accepted that this was a point for legal submissions but said that if the scheme-world permission could not be taken into account, for the reasons he had given it could be assumed that outline planning permission would have been granted for residential development of 60 units if an application had been made at the valuation date, and that a full permission with approval of reserved matters would have been achieved within 18 months.

Mr Scoot is a member of the Royal Town Planning Institute and a chartered surveyor. He is a director of DTZ Pieda Consulting of Cardiff. He said that in assessing the development potential of the subject land the issue must be viewed from the standpoint of what would be permitted in the absence of the much wider development known as the Swansea Vale Scheme. It is clear, he said, that under the provisions of section 6 of the Land Compensation Act 1961 ("the 1961 Act") the acquiring authority is not liable to pay any increase in the value of the acquired land that may have been brought about by the scheme that gave rise to the compulsory acquisition (the 'Pointe Gourde' principle). Whilst it is a matter of fact that planning permission did exist on the subject land at the valuation date, as part of the wider scheme, in considering compensation it must be looked at in isolation from that scheme.

Referring to Policies E2 and H1 of the Local plan, Mr Scoot said it should be noted that only a small part of the subject land was actually allocated for residential development. The land that was allocated under Policy E2 was not to meet current local plan need estimates, but would be required in the longer term. Piecemeal development should not be allowed to prejudice longer term comprehensive development, and, in his view, any proposal to develop the subject land in isolation would constitute piecemeal development and would therefore be contrary to the adopted Local Plan. Any application made as at the valuation date would, therefore, be refused.

Mr Scoot said that, in his view, the condition that was included within the planning permission that was granted under the scheme (whilst not acknowledging that that permission had to be taken into account for compensation purposes) relating to the 100 metre 'corridor' under the power lines was relevant, and a developer would be bound by it. Whilst accepting that there was sufficient room for the construction of 60 units even with that area blighted, it would have serious implications as to the potential for any further development in the future.

Although it had been agreed that the land was capable of supporting a residential development of no more than 60 units in accordance with the highway restrictions, the fact that, in the Swansea Vale Concept Plan that had been updated in 1994 (Revision No.1), the subject land was designated as a golf course should be noted. However, it was accepted that that revision was not incorporated into the proposed amendments to the Local Plan, the council deciding that such revisions could further delay adoption.

Mr Scoot said that when, in connection with this reference, advice had been obtained from the council's highways department that up to 60 residential units could be accommodated without any upgrading to the highway network, the senior town planner, Mr G Williams, stated that it could not be assumed all 60 units could be supported on the subject land as there were more appropriate sites nearby. In Mr Williams' view, the bulk of any development opportunities for up to 60 units in the vicinity would be taken up by sites towards the village centre, residential development directly adjacent to Llansamlet being more acceptable to the existing urban form.

Mr Scoot said that, in his professional opinion, there were a number of sites either within, or closer to, the village (including those referred to by Mr Muir) that could have been suitable for the development of 60 residential units. For instance, despite the access problems that had been mentioned, he was aware that compensation on plot 9 had been paid on the basis of residential development land values. The environmental assessment undertaken in 1994 had identified the southern areas of land (closest to Llansamlet) as suitable for residential development, and he had no reason to defer from that view.

In cross-examination, Mr Scoot said that he accepted that a phasing arrangement would apply in bringing forward the comprehensive development plan for the area as referred to in the 1989 Local Plan, but for the reasons he had given in his evidence he did not agree that the subject land would be within phase 1. He did, however, acknowledge that if it were to be assumed that planning permission existed at the valuation date, and it was a reserved matters application that was in question, the land would have come forward 'fairly early' in the development cycle. However, this was not the case, and in his view whilst it was accepted that planning permission for 60 units would have eventually been forthcoming on plot 6, that would not be for a minimum of 10 years. Whilst the agreed restriction to 60 units was accepted to be in connection with development off Church Road/Walters Road, there was no reason why the subject land should have been first. The logical phasing would have been, as he had said in evidence, to develop a number of the available sites closest to the village before encroaching onto the open area in which the subject land was located.

Mr Scoot accepted that, whilst he considered it to be out of date, the local development plan was, at the valuation date, still extant. Whilst the circumstances in Hooper were the same as in the instant case, and it was acknowledged that that decision determined that planning permission would have been forthcoming at the valuation date, that land, he said, was right on the edge of Llansamlet and was not separated from the village by a tract of open countryside. Similarly the development that had been permitted and had taken place at Fford Scott prior to the valuation date was on the edge of the built environment of Birchgrove. Development of both the Hooper land and that at Fford Scott would have contributed to alleviating encroachment into open countryside, whereas development of the subject land would not.

In his view, Policies E2 and H1 in the Local Plan, when adopted, were in the context of anticipated longer-term development and did not relate to the scheme. They could not therefore, as the Member had stated in Hooper, be described as a forebear of it and thus ignored in respect of this reference. It is only with hindsight and the knowledge of what had come along since, that it has become evident that those policies did, indeed, foreshadow the scheme. Mr Scoot did not accept that the reason he said they should not be ignored was in respect to the references to piecemeal development.

Mr Scoot accepted that any planning application on the subject land must be considered in the light of the Structure Plan and said that both the Local Plan and the Structure Plan form part of the development plan upon which the application will be determined. Equal weight should be applied to both even though it was a fact that the Structure Plan review was adopted only a matter of weeks before the valuation date.

He conceded that, if he was acting for a developer and the 1996 permission could be taken into account, he would make out a strong case for the subject land in that its attractions were that it was not a former landfill site, and there could be opportunities to open up other development areas from it. If that permission were to be ignored, it did have the potential for up to 60 houses, in order to meet the housing objectives of the Structure Plan there would have to be development within the area, and that in the no-scheme world, Walters Road would be seen as a distributor road.

ABNORMAL COSTS

Mr Gray is a Chartered Engineer, a Fellow of the Institution of Civil Engineers and a Member of the Chartered Institution of Water and Environmental Management. He is managing director of C D Gray and Associates Ltd, a firm of Civil, Structural and Environmental Consulting Engineers, which he founded in 1991. He is also a director of Terra Firma (Wales) Ltd, a geotechnical and geoenvironmental consultancy he established with a colleague in 1999. This latter firm undertook the site investigation works that had been undertaken on the subject land, these works consisting of 9 trial pits (to establish groundwater and loadbearing characteristics) and, following the receipt of a report from the Coal Authority, 5 rotary probeholes (in connection with past mining activities).

The mining report established that the only shallow working beneath the site (and thus those that would require grouting to be carried out before anything could be built over them) was the Drews coal seam. Mr Gray said that Terra Firma's rotary probehole report showed the zone of influence of that seam to be considerably less than had initially been anticipated. In accordance with the industry standard recommendations for grouting over old mineworkings (C.I.R.I.A. – Publication No.32 "Construction Over Abandoned Mine Workings" and "Treatment of Disused Shafts and Adits" published by the (then) National Coal Board) for a 'rock-head to void ratio factor of 10', and analysing Terra Firma's findings, he calculated the extent of grouting that would be required.

The rock-head to void ratio, he explained, relates to the average thickness of the coal seam and takes into consideration larger voids (e.g. subterranean roadways) and areas of no void (pillars). There should be a minimum of 10 times the seam thickness of rock above the seam to prevent the migration of voids to the surface (crown holes) in the event of collapse. Where the rock-head cover is less than this recommended minimum, drilling and grouting will be required beneath the footprint of the houses and roadways/footpaths. The houses built over it will need raft foundations, and the cost was thought to have been agreed at £5,000 per plot (including the cost of grouting beneath roads and footways) for the grouting and £1,000 for the raft foundations. However, it became apparent during the hearing that not only was Mr Peacock's figure of £5,000 for grouting at 2002 prices, and would need to be amended to the appropriate figure at the valuation date, but it also did not include grouting for roads and footways. The £1,000 for raft foundations was, however, agreed. It was, Mr Gray said, the extent, in terms of area, of the requirement for the grouting and raft foundations that was the key issue in dispute. Referring again to the C.I.R.I.A. document, he said that grouting is normally carried out at depths not exceeding 20 metres, and he had calculated for grouting on the subject land where the depth of Drews was less than this.

On the basis of the draft layout plan for the development of 60 units on the subject land, Mr Gray calculated 15 houses would need grouting and raft foundations at £6,000 (2002 prices) giving a figure of £90,000. If the further 46 houses were to be built, an additional 27 houses would need grouting, adding £162,000 to the development costs.

Mr Gray said that he did not agree with Mr Peacock's suggestion that a minimum 15 to one ratio was needed. 10:1 was the industry norm, and with grouting done at that level, NHBC certificates would be available on the new houses.

Ground level survey information had been obtained from Zenith Land Surveys which showed the majority of the site to be between 1.5m and 2.0m higher than the Nant Bran stream on the opposite side of Walters Road. Mr Gray said that in his opinion a straightforward gravity storm water system would be appropriate for the land. He did not agree with Mr Peacock's view that, to obtain a sufficient fall from the easternmost corner of the site, and for the stormwater pipe to be deep enough where it passes under Walters Road meant that the outfall would be lower than the level of the Nant Bran. In Mr Gray's opinion, the necessary falls could be achieved and the pipe passing beneath the main road could be encased in concrete, thus allowing it to be less than 1.2m beneath the surface, and he had produced a plan in section demonstrating that this would work.

The trial-pits that had been dug proved, he said, that it was only surface water lying beneath the thin upper layer of subsoil, its dispersion arrested by the underlying clay. The pits were dug after a long period of heavy rain, and any surface water, and evidence in the pits was due to the fact that the on-site drainage ditches were heavily overgrown and soiled due to lack of maintenance. Clearing them out would solve the problem. There was no evidence, as suggested by Mr Peacock, of ground water problems caused by run-off from the railway embankment. The trial-pits adjacent to it were dry, and there would therefore be no need to provide a ditch along the side of it, even though the ordnance Survey map showed 'issues' in the vicinity of the embankment.

As to any requirement to allow for greenfield run-off, Mr Gray said that there were no conditions in the planning permission to this effect. A developer would make enquiries of the Environment Agency and, knowing he would be in competition with other builders for the site, formulate his bid that reflected any abnormal costs that he perceived. In Mr Gray's view, there would be no need for an attenuation pond on the site to hold excess stormwater. He was aware of a similar site (within the scheme) using the same watercourses as applicable to Plot 6 and no attenuation measures had been required there.

There was no need, in Mr Gray's view, for a developer to allow for the provision of high voltage cables to serve the proposed 60 houses on the land. The existing low-voltage supply should be sufficient, and if a transformer were required, from his knowledge of a similar site, the cost would be no more than £10,000 to £12,000.

Finally, Mr Gray said that as access and ground conditions over the majority of the site were good, there would be no requirement for the importation of fill.

Mr Peacock is a Chartered Civil Engineer and a Member of the Institute of Highways and Transportation. He is a divisional director of Veryards Ltd, Consulting Engineers, and has over 30 years experience in the business. Whilst he accepted the C.I.R.I.A. recommendations in respect of rock-cover over old mine workings, he felt that insufficient probe-holes had been drilled by Terra Firma Ltd. He thought that additional holes should have been drilled to the north of the assumed location of the Drews coal seam, knowing that that seam did, in fact, extend further northwards than was actually shown on the old mining plans. In his opinion the 10m benchmark was a minimum, and bearing in mind there could well be 2m 'roadways' and other voids in areas where the probe-holes were not taken (leaving only 9m rock cover, it was safest to estimate for grouting on the basis of 15m rock cover. Also, although he had agreed with Mr Gray that £5,000 per plot was an appropriate allowance for grouting, that figure did not include for grouting under roadways and footpaths. It also became clear during the hearing that not only did Mr Gray's figure include fees which, Mr Peacock said, his figures did not, but it was assessed at 2002 prices, as were all the other non-agreed figures. [As a result of this misunderstanding, it was agreed at the hearing that Mr Harlow would re-calculate Mr Peacock's figures at valuation date prices by reference to an appropriate index and provide them to the Tribunal. For the sake of brevity, the following references to Mr Peacock's figures are the revised ones].

The price per plot became £4,129 to which fees would need to be added at 5 per cent. His estimate for grouting beneath roads and paths was 230 metres at £413 per linear metre - £94,990, also plus fees. There was, he said, also disagreement between the parties in respect of the number of plots that would need grouting and his estimate was for 31 plots. At £4,129 per plot that produced a figure of £127,999 plus fees. Raft foundations would be £31,000 and that figure had been agreed as inclusive of fees. This produced a total of £253,989. He also calculated that the cost of grouting the whole area above the Drews coal seam where there was less than 15 metres of rock cover (i.e., not just the plots and roads) at £305,572. That same calculation on the basis of 10 metres of rock cover would be £264,729. Fees would again need to be added to these figures.

In cross-examination Mr Peacock said that his calculations were (at £50 per sq m for roadways) based upon known grouting costs which varied, depending upon the site, between £14 and £60 per sq m. They were, therefore, in the upper quartile, but he accepted that there was no evidence on the subject land of any crown-holes having appeared, and that the last known mine workings ceased in 1930. Nevertheless, he said, a developer would need to be sure that there was "nothing nasty lurking below the surface", and would calculate the likely abnormal costs with an element of caution in mind.

On the subject of storm water drainage into the Nant Bran, Mr Peacock said that if the pipework from the houses to the main stormwater drain on the site is to achieve sufficient falls to produce the requisite self-cleansing velocity, the level of the main drain will need to be deeper than Mr Gray had assessed, this resulting in its outfall being lower than the level of the stream. This would also create problems when the stream was running full. A balancing pond would be necessary, at a cost of £9,910. Additionally, he said, the infill on the land (the identified sand bunds) would need to be re-distributed so that the properties at the furthest extremity could be built at a higher level. The cost of this re-distribution was calculated at £8,259 to which should be added £5,781 for a limited amount of imported fill.

The data from the trial pits demonstrated, in Mr Peacock's view, that there was ground water on the site that would need to be disposed of, and just clearing the existing drains would not be sufficient. There were issues shown on the old Ordnance Survey sheets, and there was a watercress bed on the adjacent land that indicated the presence of ground water in the vicinity. The cost of preparatory drainage works to deal with this was calculated at £8,259.

In cross-examination, Mr Peacock said that the trial-pits were not left open for long enough for the ground water question to be clarified, but his view was based upon his interpretation of what he saw.

Although it was accepted that, in the overall scheme of things, this was a small development site, Mr Peacock said that Mr Gray's figure of £10,000 to £12,000 for an electricity transformer was based on a replacement cost where high voltage cables were already available. This was not the situation here and as it was not possible just to plug in a step-down transformer, allowance would have to be made for providing sufficient cabling from the nearest suitable supply. His estimate of £24,776, which he admitted was unscientific, was, he felt, more realistic in the circumstances.

VALUATION

Mr Perons is a Chartered Surveyor and a director of Cooke and Arkwright, Chartered Surveyors, of Bridgend. He undertakes valuation and associated work throughout South and West Wales. He had prepared his valuation of the subject land on the basis that planning permission for residential development would have been available at the Vesting Date in the no-scheme world, and that there would have been no constraints on planning or highways grounds. His assumptions were in accordance with the views of the claimants' planning experts (Mr Carlisle and, latterly, Mr Muir) in that detailed planning permission for 60 units would have been forthcoming within 18 months of the valuation date, that there was a 60 per cent chance of obtaining permission on the rest of the land within the Structure Plan period (expiring 2006), that there would only need to be 15m clearance to each side of the power lines and that a developer may also see the land as an opportunity to open up other developable areas that were otherwise land-locked. He had made his own enquiries of Western Power Distribution Ltd regarding the wayleave for the power lines, and had been told that, as far as they were concerned, a minimum 5.4 metre clearance was sufficient. However, he accepted that a wider sterile strip would, in reality be needed, due to public concerns.

As to the power lines, and the acquiring authority's views that there would have to be a 100 metre 'corridor', Mr Perons said that having now seen a copy of the wayleave agreement he had concluded that their existence would not constrain development. A developer would be able to terminate the agreement on giving one years written notice or, if the power lines impeded development, compensation for loss of development value could be claimed.

The claimants' engineering expert's estimates in respect of abnormal costs had been adopted in the valuation. Mr Perons estimated that, for the development of 60 units, 15 plots would require grouting at £5,000 per plot (1996 prices inclusive of fees and an allowance for grouting beneath roads and footpaths) and £1,000 per plot for raft foundations, also inclusive of fees – that latter figure having been agreed. If the rest of the land eventually obtained planning permission, a further 27 plots would need grouting and raft foundations. The agreed allowance for the pumping station for foul drainage (at £25,000) was included, and Mr Perons had added an estimate of £10,000 for obtaining a drainage easement for connecting surface water drainage to a watercourse on adjoining or adjacent land.. The parties have agreed that the initial pre-acquisition site tests would have cost £5,000 and those costs should not be deferred.

The valuation experts having agreed the value of the 6 acres of developable land for development purposes if permission were forthcoming, and the value of Plot 29, Mr Perons' valuation became:

Plot 6 – Residential Development, Phase 1

Value of 2.43ha (6 acres) @ £325,000 per ha £789,750

Less Abnormal costs:

Foul drainage pumping station £25,000

Drainage easement £10,000

Grouting/raft foundations (15 x £6,000) £90,000

£125,000

£664,750

P V of £1 deferred 18 months @ 12% 0.844

£561,049

Plot 6 – Residential Development – Phase 2

Value of 2.02 ha @ £325,000 per ha £656,500

Less Abnormal costs:

Grouting/raft foundations (27 @ £6,000) £162,000

£494,500

P V of £1 deferred 10 years @ 12% 0.322

£159,229

Less Risk Factor @ 60% £ 95,537

Plot 29

Agricultural value as agreed £ 3,400

Sub total £659,986

Less Pre-acquisition site tests £ 5,000

£654,986

Say £655,000

Mr Harlow is a Chartered Surveyor and has been a director of Poolman Harlow, Chartered Surveyors of Swansea, since 1991. He has worked in the Swansea area for 19 years, regularly undertakes valuations and sales of development land and appeared for the acquiring authority in the Lands Tribunal hearing relating to Hooper. His valuation took into account the planning evidence of Mr Scoot and the engineering evidence of Mr Peacock.

As to the engineering evidence, following the hearing he re-calculated the figures in dispute (see para 57 above) by reference to the BCIS General Building Cost Index. It measures changes in costs of materials, labour and plant i.e. basic costs to the contractor, and as the developer in this case was likely to be the contractor, he considered it to be the most appropriate. The increase in the index between the first quarter of 1996 and the second quarter of 2002 was 21.2 per cent, so Mr Peacock's original figures needed to be multiplied by a factor of 82.6 per cent. These figures were included in Mr Harlow's revised valuation together with a contingency of £50,000 to reflect a buffer that, he said, a developer would want to build in to compensate for the possibility that additional abnormal costs may be encountered – such as additional grouting.

Mr Perons, in commenting on the revised engineering figures, said that the BCIS All-in Tender Price Index was the most appropriate as these were, in the main, specialist works that the developer would have to source externally and would therefore not be the contractor, but the client. That index identifies the change in cost to the client, and has the largest sample size, indicating that it is likely to be the most accurate. On the basis of that index, there was a 51.2 per cent increase over the relevant period resulting in Mr Peacock's figures needing to be multiplied by a factor of 66.1 per cent. In other words, Mr Peacock's 2002 estimates would need to be reduced by a greater amount to give the appropriate 1996 figures. This would result, all other figures being equal, in the acquiring authority's valuation becoming £148,838.

Mr Harlow said that his valuation of Plot 6, deferring the agreed development value for 10 years (which reflected the expert planning evidence) after allowing for the abnormal costs, represented about 3 times the existing (agricultural) value. In his view this was the price a developer would be prepared to pay at the valuation date, bearing in mind that at that time there was only hope value for the eventual construction of 60 dwellings (and no more). He agreed with Mr Scoot's view that it was most likely that the sites nearer to Llansamlet would come through for development sooner than the subject land. Indeed, he had been involved in the compensation negotiations for the acquiring authority in respect of Plot 9, where figures had been agreed on the basis of residential development values despite the acknowledged contamination on part of that land. Also, although specific numbers of units had not been agreed, plots 12/13 (land rear of 46 Church Road , Llansamlet) and plots 14/15 (also off Church Road and Peniel Green Road) and plots 19/20/21/ and 32 had been compensated on the same basis. It was likely therefore that, in a no-scheme world, the planning restriction for 60 houses off Church Road/Walters Road would have been taken up sooner by other sites, meaning that development of the subject land would have to wait. This was supported by the fact that the development would be contrary to the Local Plan in that if it came forward before the sites closer to Llansamlet, it would constitute piecemeal development.

As to the remainder of Plot 6 (1.75 ha) that could not be developed, Mr Harlow said that although it could be sold at any time, a developer acquiring the land for long-term development would need to retain it until the development was complete, there being fill on the land that would be needed in connection with the building works, and the surplus land was also suitable for the construction of the required attenuation ponds. He had therefore deferred the value of that land, at agricultural prices, by 13 years at the agreed 12 per cent.

Mr Harlow's valuation, adopting the revised abnormal costs figures became:

Plot 6

a) Land with development potential

Gross Price 2.43 ha @ £325,000 per ha (agreed) £789,750

Less Abnormal Costs:

i) Ground Conditions

a) Grouting (including contingency) £272,989

b) Raft Foundations £ 31,000

ii) Pumped foul drainage £ 25,000

iii) Electricity transformer £ 24,776

iv) Surface water drainage and

attenuation ponds £ 18,169

v) Redistributed and imported fill £ 14,040

vi) Fees on above (excluding 1b & ii) @ 5% £ 16,499

Sub Total £402,473

Net price £387,277

Deferred 10 years @ 12% x 0.322

Value £124,703

b) Surplus agricultural land

Gross price 1.75 ha @ £8,000 per ha £ 14,000

Deferred 13 years @ 12% x 0.229

Value £ 3,206

Total Value of Plot 6 £127,909

Plot 29

Value (agreed) £ 3,400

Total land value £131,309

Less Cost of site investigations prior to purchase (agreed) £ 5,000

Total value of subject land £126,309

– Say £126,500

SUBMISSIONS

Mr Blackmore said that the parties had agreed that the development plan covering the subject land consisted of the 1989 Local Swansea Plan and the West Glamorgan Structure Plan (Review No2) adopted a few days before the valuation date. Although the Local Plan Review that was commenced in 1993 could be described as the emerging Local Plan, it had not been adopted at the valuation date and was only, therefore, at consultation draft stage.

The subject land enjoyed an extant outline planning permission for a mixed development that had been granted in March 1994 subject to reserved matters (which in addition to the question of phasing would deal with specifics as to the precise user allocation). That was the scheme permission but, as set out in section 14(2) of the 1961 Act, it had to be taken into account. This was the main issue between the parties – the claimants saying that, it having been agreed that planning permission would be forthcoming for up to 60 residential units, the extant permission was the outline, and reserved matters would have been settled within 12 months of the valuation date. The acquiring authority's argument that the scheme permission was to be ignored, and thus the question was how long it would be before outline permission was obtained, did not, Mr Blackmore said, accord with the Act.

Nevertheless, even if the permission had to be ignored, it was clear from the evidence that outline permission would have been granted and, in the claimants' submissions, reserved matters settled, within 18 months. This was because the subject land was the most appropriate development prospect and the other sites referred to by the acquiring authority were unsuitable for a development of this size, or at all.

Mr Blackmore referred to Myers v Milton Keynes Development Corporation [1974] 1 All ER 1096 where Lord Denning MR set out the judicial basis for the compensation provisions in ss 14 – 15 of the 1961 Act where land is compulsorily acquired and said (at 1101):

" In 1947 there came the Town and Country Planning Act 1947 with all its great changes. No one was allowed to develop his land by building on it, or by making any material change in the use of it, unless he obtained permission from the planning authority: see s12. If his land was acquired compulsorily, he only received compensation for its existing use value. He got nothing for its potentiality as building land. Even if it was dead-ripe land, he got nothing for it except existing use value: see s51(2)(4). This gave rise to no end of difficulties. So in the Town and Country Planning Act 1959 the basis of compensation was altogether changed by provisions which were soon afterwards embodied in the Land Compensation Act 1961.

These new provisions recognised the basic fact: land with planning permission may be worth far more than the same land without it. Its value may be multiplied tenfold, or even hundredfold. In March 1970 the 300 acres at Walton for agricultural purposes would have fetched £300 to £350 an acre. Sold for residential purposes with planning permission for immediate development, it might have fetched £10,000 to £11,000 and acre.

Under the new provisions, Parliament enacted that land should be credited with the benefit of planning permission in various situations. These provisions are very complicated, so we will only take some illustrations. If there was planning permission actually in force, the land should be credited with the benefit of that planning permission: see s14(2) of the 1961 Act. If there was no planning permission actually in force, but the land was in a zone allocated for residential or industrial use, the land should be credited with the benefit of whatever planning permission might reasonably be expected to be granted: see s16(2) of the 1961 Act; Margate Corporation v Devotwill Investments Ltd ([1970] 3 All ER 864 HL rvsg [1969] 3 All ER 97 CA); and Provincial Properties (London) Ltd v Caterham and Warlingham Urban district Council ([1972] 1 All ER60). If it was not in a zone allocated for a reservoir or playing fields, or roads, but might, as an alternative, appropriately be developed for residential or industrial use, the land might be credited with planning permission for that alternative development, if it was such as might reasonably have been expected to be granted: see s17 of the 1961 Act and Jelson Ltd v Ministry of housing and Local Government ([1969] 3 All ER 147."

Mr Blackmore said that it was of course accepted that even though account may be taken of the existing planning permission, for the purposes of valuation of the land with the benefit of that consent, the existence of the scheme had to be disregarded. As Lord Denning said (at 1102):

"It comes to this: in valuing the estate, you are to disregard the effect of the scheme, but you are to assume the availability of planning permission. This is best explained by taking an imaginary instance. A scheme is proposed for building a motorway across Dartmoor with a service station every five miles. Suppose the land is taken on which a service station is to be built as soon as possible. In assessing compensation, you are to disregard any increase due to the proposed motorway, or service stations. But, if the landowner had already been granted actual permission for that piece of land for commercial purposes (e.g. as a café), you are to have regard to it: see s14(2). Even if he had no such permission already, you are to assume that he would have been granted planning permission for a service station: see s15(1). And you are to value that land with that permission in the setting in which it would have been if there had been no scheme. If it would have been a good site for a service station, there would be a great increase in value. If it would have been in an inaccessible spot on the wild moor, there would be little, if any, increase in value, because there would be no demand for it. A further complication arises when the proposals are not to be put into effect for ten years. Planning permissions are not in practice granted so far ahead. They are only granted for immediate development. In the illustration, you are, therefore, to assume that, after ten years, planning permission would be granted for development of a service station – in a setting where there had been no scheme".

Accordingly, Mr Blackmore said, account must be taken of the extant planning permission on the subject land for the purposes of assessing compensation. The principle of development cannot therefore be in issue, and thus the arguments propounded by the acquiring authority as to its locational unsuitability due to it being outside the immediate envelope of Llansamlet must be disregarded. The Tribunal, he said, could not disregard the agreement between the valuers that up to 60 dwellings would have been permitted on the land, and all it had to do, therefore, was determine (in addition to the other matters that were not agreed) when detailed consent, or approval of reserved matters, would have been obtained. It had been agreed that the scheme requirement for a spine road to be constructed before major development (beyond the accepted highways restriction for 60 units in the no-scheme world) was to be disregarded.

Referring to Hooper, Mr Blackmore said that case related to the scale of development rather than when planning permission would have been forthcoming, it being agreed that compensation was to be assessed on the basis that planning permission would be granted on the subject land. The question of timing was not an issue. The Tribunal in that case assumed the grant of residential planning permission under s14(3) but in this case, being a question of timing, Mr Blackmore said that as a matter of law s14(2) applied.

In any event, the Member in Hooper said that the result of any planning application should be "considered in the light of the provisions of the Structure Plan that had been adopted shortly before the valuation date", and policies E2 and H1 of the 1989 local Plan being forbears of the scheme had to be disregarded. That was precisely the claimants' case here.

The importance of the planning experts' agreement that the subject land would be developed for up to 60 residential units could not be stressed strongly enough, Mr Blackmore said, as this effectively precluded any argument as to precisely for what use the land would have been allocated. In cross-examination, Mr Scoot had admitted that (on the basis of the extant planning permission being applicable) a developer would have made an early application to vary the planning conditions, and seek approval of reserved matters knowing that the outline permission was to expire in 12 months. He would be attracted by the fact that investigations would reveal the land to be uncontaminated, that there was some hope value for additional development in the future, and that it could open up further areas for development. The developer would consider, Mr Scoot had said, the site to be a good prospect and even if the extant planning permission were not taken into account, it was known that to meet the objectives of the Structure Plan, development could be expected in the area in the short term. One of the major factors that would influence a potential purchaser would be the fact that permission had been granted for the larger, 130 unit, development of Fford Scott that had achieved consent as a departure from the Local Plan.

Mr Blackmore said it was clear from the evidence that in order to develop the land north of Llansamlet in accordance with the 1996 Structure Plan housing targets, the subject land would have come forward in the first phase due to the inappropriateness of many of he other sites.

Even if I find in favour of the acquiring authority on the subject of the extant planning permission, Mr Blackmore said, and a planning permission was to be assumed under s14(3), such a permission would be seen as a 'one-off' and thus no phasing conditions would apply. Disregarding the reference to Local Plans (per Hooper), development of the subject land for 60 houses would be consistent with items i and iv of the Housing Strategy of the Structure Plan, and as the evidence had shown, there were no valid reasons why a planning application should not have received outline approval, and approval of reserved matters within 18 months of the valuation date.

In terms of the engineering aspects, firstly a developer would see no inherent problem in respect of the overhead power lines. As to abnormal costs, it was important to note that Mr Gray's figures (as adopted by Mr Perons in his valuation) were based upon site investigations and analyses that had actually been undertaken by the claimants, and the acquiring authority had produced no evidence to contradict that.

In summary, Mr Blackmore said the fact that the subject land had outline planning consent for a mixed development (including residential) should be taken into account in the assessment of compensation, and the only questions were the period of time before approval of reserved matters was obtained and the cost of abnormal works.

Mr Jarman said that it was the acquiring authority's case that development of the subject land in isolation at the valuation date would have been an intrusion into the countryside, contrary to established planning policies. The land was not, as was the case with the Hooper land and the development at Fford Scott, on the urban fringe, Mr Muir agreeing in cross-examination that it was more remote. Mr Jarman said that the planning experts did not agree as to what parts of the Local plan did not relate to the scheme, and submitted that it was not right, as the claimants' expert suggested, to disregard policies E2 and H1 of the 1989 Local Plan as it was upon these that the acquiring authority's concession as to development potential on the subject land was founded. The claimants' reliance upon the fact that those policies were disregarded in Hooper was misplaced, as the Tribunal was referring to the potential as part of an overall comprehensive development scheme. Although such potential was mentioned in the written amplification of policy H1, it was clear from the policy itself that allocations made in it were to meet the land supply requirements of the Structure plan. Such allocations would have been necessary in the no-scheme world.

It follows, he said, that it is not correct to say that the only aspect of the scheme to be disregarded is the spine road – what must be disregarded is the comprehensive development envisaged by the scheme. The allocations (in the emerging Local Plan) as at the valuation date do not include the subject land, but do include 30 units at Llansamlet East, and 35 at Llansamlet West. Some of those sites had planning permission, and it could be anticipated that others, closer to or within the village envelope would be considered by the local planning authority first as to do otherwise would have been in contravention of the planning policies applicable at the time. Whilst it was acknowledged that those policies did not form part of the development plan at the valuation date, they are relevant, Mr Jarman said, in identifying what was deliverable in the no-scheme world.

In response, Mr Blackmore said there was a contradiction in the acquiring authority's argument. On the one hand it sought to rely upon policies E2 and H1 in arguing its 'concession' on development, but on the other it was using the amplification of those same policies relating to the presumption against piecemeal development or development in open countryside to justify a 10 year deferment. However, the reference in policy H1 was to sites indicated on the proposals map and in the land supply schedule allocated for residential development in order to meet the land supply requirements set out in the then extant Structure Plan Alternative No 1. The parties had agreed that the relevant development plan for the purposes of this reference was the Structure Plan (Review No 2) which was adopted just before the valuation date. In that review, open countryside was referred to as "being all that land within the county which lies outside the existing built up settlements and which is not allocated for development in the development plan." At the valuation date, the subject land was in an area allocated for development in the development plan, and it was important to recognise that element (v) in the Structure Plan's Housing Strategy was met vis: "the encouragement of substantially increased levels of house building in East Swansea…".

Mr Blackmore said that in Hooper the acquiring authority had conceded that any reference in the 1989 Local Plan to the residential development potential as part of the overall comprehensive scheme relating to the land north of Llansamlet was to be disregarded as it reflected the scheme underlying the compulsory acquisition. It was for those reasons, he said, that the Tribunal concluded "that the result of any such planning application must be considered in the light of the Structure Plan that had been adopted shortly before the valuation date".

He also said that the acquiring authority's reference to the allocations of land in Llansamlet East and West in the emerging (and not yet adopted) Local Plan were dependent upon the scheme, and it was not right to assume that those sites would have been granted consent outwith the scheme. In any event, reference to the emerging Local Plan was inadmissible as it had not been adopted at the valuation date.

Mr Jarman said that the 1994 permission relating to the subject land was entirely due to the scheme and was not an allocated site or one referred to in the land supply schedule of the 1989 Local plan. The Structure Plan is non site-specific and insofar as the land supply requirements are dependent upon the scheme, it must be disregarded. He said that, as in Hooper, the only assumption that should be made in relation to planning permission is that the value should take into account what permission might be expected to have been granted in the no-scheme world.

He said that ss14-16 of the 1961 Act deal with assumptions as to planning permission. Whilst s14(2) states that any assumed permission is in addition to any planning permission that may be in force at the relevant date, it does not accord any special status to such permission. That status is subject to the usual rule, that the price for the acquisition of the land should not be inflated by the very project or scheme that gives rise to the acquisition (s5(1)) and Point Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands [1947] AC 565 at p 572. Mr Jarman said the claimants' citation of the judgment in Myers had been selective as it dealt with statutory assumptions, not with existing planning permissions. The section following was relevant (at 1102F), where Lord Denning said:

"It is apparent, therefore, that the valuation has to be done in an imaginary state of affairs in which there is no scheme. The valuer must cast aside his knowledge of what has in fact happened in the past eight years due to the scheme. He must ignore the developments that will in all probability take place in the future ten years owing to the scheme. Instead, he must let his imagination take flight to the clouds. He must conjure up a land of make believe, where there has not been, nor will be, a brave new town, but where there is supposed to be the old order of things continuing – a county planning authority which will grant planning permissions of various kinds at such times and in such parcels as it thinks best…"

As to the agreement between the planning experts, Mr Jarman said it was important to note that that the statement records that the land 'could', rather than 'would', have received planning permission for up to 60 houses. He said there was no evidence to support, if I were minded to do so, a conclusion that the deferment period should be somewhere between the claimants' 18 months and the acquiring authority's 10 years. Bearing in mind the number of more suitable sites within or immediately adjacent to the Llansamlet settlement, it was inconceivable that, in the no-scheme world, planning permission would have been forthcoming any sooner than the authority's planning expert contended. There was also no evidence to support Mr Perons' conclusion that the balance of the subject land held potential for further development, his assumption that the requisite infrastructure (highways) would have been forthcoming being pure speculation.

Mr Jarman submitted that even if the problem of the overhead lines could be surmounted, as Mr Perons had suggested, there would have been a delay whilst matters were sorted out and this would have been a deterrent to a developer. As to the abnormal costs, Mr Jarman said that Mr Peacock had taken a cautious and realistic approach in assessing the allowances that a reasonably prudent developer would make, whereas Mr Gray had adopted figures that could only be described as a 'best case scenario'.

CONCLUSIONS

Planning

The crux of the issue between the parties is the planning status of the land at the vesting date in terms of the assessment of compensation. The 1961 Act draws a distinction between the planning status of the land and its valuation (see Roberts v South Gloucestershire District Council [2003] RVR 43 per Carnwath LJ at para 16), and the correct approach is for me to establish the planning status as provided for by the provisions of sections 14 to 16 of the Act and then to apply the statutory provisions relating to the valuation.

Looking, therefore, at the relevant sections of the Act, s14(2) provides that:

"(2) Any planning permission which is to be assumed in accordance with any of the provisions of those sections is in addition to any planning permission which may be in force at the date of the service of the notice to treat".

At the date of notice to treat the outline planning permission of 17 March 1994 was in force. It related to a much larger area than the subject land. It was for "residential, leisure, commercial, industrial, hotel and community usage" and was the scheme permission. It included the subject land and I am bound to take it into account. Mr Jarman's submission that Pointe Gourde requires the permission to be left out of account is, in my view, clearly wrong. Myers v Milton Keynes makes clear that Pointe Gourde does not operate so as to override assumptions as to planning permission, and the same undoubtedly goes for an actual planning permission which section 14(2) allows to be taken into account.

Under section 15(1), in a case where (a) the subject land is to be acquired for purposes that involve the carrying out of proposals of the acquiring authority for development of the land, and (b) on the date of service of the notice to treat there is not in force planning permission for that development, it is to be assumed that planning permission would be granted, in respect of the subject land such as would permit development of it in accordance with the proposals of the acquiring authority. The purpose for which the Compulsory Purchase Order lands, including the subject land, was to be acquired was that of securing the carrying out of development, redevelopment or improvement by way of provision of housing, business and leisure facilities together with landscaping and associated infrastructure (see para 3 of the decision letter and para 2 of the Inspector's report on the CPO). The planning permission of 17 March 1994 was permission for the development that it was the purpose of the CPO to secure, and since it was in force at the date of notice to treat, no assumption as to the grant of planning permission falls to be made under s15(1).

Section 16 creates special assumptions in respect of certain land comprised in development plans. Subsection (1) relates to land defined in the development plan as the site of proposed development of a specified description, and subsections (2) and (3) relate to areas of land allocated primarily for particular uses.

As the Tribunal (the President and Mr P H Clarke FRICS) pointed out in Purfleet Farms Ltd v Secretary of State for the Environment, Transport and the Regions [2002] RVR 203 at 208 paras 37-38, the terminology of that section is that of the old-style development plans (under the Town and Country Planning Acts 1947 to 1962). Section 5(2) of the 1947 Act (which was in force when the 1961 Act was enacted) provided that a development plan might, in particular:

"(a) define the sites of proposed roads, public and other buildings and works, airfields, parks, pleasure grounds, nature reserves and other open spaces, or allocate areas of land for use for agricultural, residential, industrial or other purposes of any class specified in the plan."

The Tribunal went on:

"38. There was thus a clear distinction in the old-style development plans between sites defined for specified developments and areas allocated for specified uses. Now, however, under section 54(1) of the Town and Country Planning Act 1990, the development plan for the purposes of the 1961 Act is to be taken as consisting of the operative structure plan and local plan for the district; and local plans do not define sites and allocate areas in the way that the old style plans did. A local plan contains a written statement of detailed policies (see section 36(2) of the 1990 Act) together with a map illustrating those policies and other descriptive and explanatory matter (section 36(6)).

39….What has to be done in order to apply the section, it seems to us, is to look at the relevant provisions of the local plan and to categorise them according to the dichotomy which was set out in section 5(2)(a) of the 1947 Act and is reflected in section 16."

The statutory local plan, the Swansea Local Plan, adopted in December 1989, showed the subject land (Plot 6) as subject to 3 separate policies and the question to be determined is, was the land allocated primarily for a specific use? Policy H1, which stated that the policy was that the sites indicated should be allocated for residential development, only applies to a small triangular area in the south western-corner of the site. Adopting the approach set out in Purfleet Farms, this part would thus clearly fall within section 16(2).

However, the area allocated under policy H1 is too small to be of any significance in respect of the development of the subject land as a whole. Policy R6, relating to a narrow strip of land along the road frontage, is not an allocation for residential or industrial development purposes and thus adds no value. Policy E2, which covers the majority of the site, and certainly most of that upon which any development would take place, reserves the land as a contingency site for major redevelopment schemes, and cannot therefore be construed as an allocation.

In summary therefore, under section 14(2), there is planning permission; section 15(1) does not apply in this case, and section 16 does not assist for the reasons stated above. It follows that I accept Mr Blackmore's submissions in regard to the application of sections 14–16 of the 1961 Act.

Having concluded that the extant planning permission can be taken into account, I now turn to issue (2). There was considerable argument during the course of the hearing as to the precise uses to which the subject land would be put as part of the wider scheme, but Mr Scoot clearly said in summarising his proof of evidence "I therefore consider that the land the subject of this tribunal could be developed for up to 60 residential units employing existing access arrangements. No other uses on the land are considered acceptable when one reviews site specific constraints and the existing planning consent".

The planning experts have agreed that "the extent of development on the land would be limited by the road capacity in the area at the relevant time. On the basis of the advice of the Highway Authority [up to] [no more than] 60 residential dwellings would have been permitted using the highway access arrangements at the vesting date. The further development of the land would rely on the removal of the highway restriction". They also agreed that, based upon this information, the land could, in the no-scheme world, have been developed for [up to] [no more than] 60 residential dwellings.

Much was made in evidence by the acquiring authority of the use of the word 'could' rather than 'would', and it was their case that whilst such planning permission would have eventually been forthcoming, it would be at least 10 years before it did. Even if the scheme permission were to be taken into account, they said, under the phasing condition it would still have been a considerable time before the subject land was developed. It seems to me that there is really no question as to precisely what use the subject land would be put to under the scheme permission – the planners having agreed residential use and the expert valuers having constructed their valuations on this basis.

The next point is implementation. There is no doubt in my mind that physically, the land could be developed in isolation. There is no reliance upon any other land for the provision of access or services, and there was nothing to stop the land being developed as the first phase in the wider scheme. But, the question is, would details have been approved under the terms of the planning permission for the development of the subject land separately from other land in the scheme. Condition 04 in the permission of 17 March 1994 states:

"04. The development to which this permission relates shall be implemented in accordance with a phasing programme which shall be agreed with the Local planning Authority, in consultation with the County Council as highway authority. Each phase of the development shall be in accordance with detailed development briefs which should be prepared for each parcel of land and which shall be in accordance with the Tawe Vale Development strategy."

The claimants' case was that, on the basis of the agreement that the site was capable of development for 60 houses, the subject land was by far the most suitable of the available sites due to the constraints on all the others. A sound case, based upon the need for extensive new housing in the area, as set out both in the Local Plan and the Structure Plan (Review No 2), could be made for this being the first phase, and as such approval of reserved matters could be expected within 12 months. The acquiring authority's case was that the local authority would have fought against piecemeal development, and would have sought to develop the sites both within and immediately adjacent to the Llansamlet village envelope outwards, eventually linking up with the subject land which would thus become a much later phase. The presumption against piecemeal development was a strong one, and in the council's view, the subject land was in open countryside.

Whilst it was accepted, and it is indeed a fact, that the subject land is isolated from the current edge of the village, and in comparison with many of the other sites referred to, is in open countryside, it is in reality only a short distance from the last group of houses in Llansamlet, fronting Walters Road. Mr Blackmore made the point that, in the Structure Plan (Review No 2), open countryside was referred to as "being all that land within the county which lies outside the existing built up settlements and which is not allocated for development in the development plan". He said the land was allocated for development and it was important to recognise the urgent need for new housing in the area, as set out in element (v) of the Structure Plan's Housing Strategy.

It was clear to me, from the considerable evidence and cross-examination on the subject of the alternative sites, that there were, indeed, none that were as readily developable as the subject land. I accept the claimants' evidence in respect of these sites, and specifically in respect of plot 9, despite the fact that compensation may have been paid on the basis of residential development on at least part of the land, agree that a developer would have been extremely wary about a site that was known to be a former landfill site and to suffer from contamination, including the production of methane gas. I also take into account Mr Scoot's acknowledgement that, if he had been acting for a developer in 1996, he would have "made out a strong case for the subject land…" and that such a developer would see the site as a good prospect even if the extant planning permission were not taken into account.

Mr Blackmore made the point that Mr Jarman's reference to the availability (allocation) of 30 plots in Llansamlet East and 35 in Llansamlet West related to the emerging Local Plan (which was not adopted at the valuation date) was not agreed as being relevant to the consideration of the subject land. However, Mr Muir said in his evidence that that the emerging Local Plan (the Local Plan Review Consultation Draft of April 1995) "lent support to the contention that approval of reserved matters….would have been immediately forthcoming", there being a stated need for 1,200 houses in Swansea Vale over the period 1993 to 2003. If there are competitor sites shown on a draft local plan, they do fall to be considered and I accept Mr Jarman's point that the existence of them does indicate what would be deliverable in the no-scheme world. But, in my judgment, the allocation of these plots does not preclude the subject land from being considered. In any event, there was some question as to the availability of access to the Llansamlet West land. The need for extensive housing has been identified in the Local Plan, the Structure Plan, and the emerging Local Plan and for a site such as the subject land, the presumption against piecemeal development would in my view be overridden, in planning terms, by the suitability of the site and the need to comply with the requirement to provide the specified number of houses.

The amplification to the Policies and Proposals for the new housing sites in the draft Local Plan (1995 Review) states, (at 5.12): "Swansea Vale is included in the existing supply figures. Due to the scale of the area it is important to recognise that Swansea Vale should be perceived as a 'cluster of places' rather than one extensive development area." It also says "In addition, new housing areas will be located adjacent to Llansamlet and a more self contained 'village' is proposed for Tregof Farm, north of Llansamlet". Whilst it is a fact that it occurred as part of the scheme, and subsequent to the valuation date, the new housing development at Tregof Farm (Wimpey Homes) is equally as far from the settlement of Llansamlet as the subject land. This is, in my view, key to the question of whether the subject land could be developed in isolation, and would be accepted as phase 1. The Tregof development has been permitted on a site that does not immediately link up with the existing village envelope, and there is no reason why the situation in terms of plot 6 should be any different.

Further support for the proposition that the subject land would have received early approval of reserved matters, it seems to me, comes from the fact that a substantial development (for 130 units) has been permitted at Fford Scott, as a departure from the Local Plan, on the outskirts of nearby Birchgrove.

Finally, on the question of phasing, my interpretation of the requirement for development briefs to be prepared is that they are individual, and there is no question that a developer would have to prepare them over a wider area.

Regarding the rest of the conditions that attached to the permission, and those that the parties agreed would be applicable in respect of a new application, it seemed to me that there was no dispute that they were all perfectly normal, and none of them would have acted as a particular deterrent, or adversely affected the value of the land.

As to the precise timing, the claimants are of the view that approval of reserved matters would be forthcoming within 12 months if it was accepted that the scheme planning permission could be taken into account. Alternatively (and this a matter to which I shall turn in a moment under issue (3)), if a new application were to be made (in accordance with assumptions under section 14(3) of the 1961 Act), the total period for obtaining outline permission and then approval of reserved matters would be 18 months. In my judgment, both of these timescales are a little optimistic. Bearing in mind also that the matter of the corridor in respect of the power lines would need to be resolved (see below), I think timescales of 2 years (reserved matters under the existing permission), or two and a half years (new application) would be more appropriate.

I now turn to issue (3): whether in the absence of the scheme, planning permission would have been granted, for what, and when. Mr Blackmore said that if such permission were to be assumed under section 14(3), it would be a 'one-off' and would not, therefore, be subject to phasing. I accept this, but for the reasons I have given, consider the timing aspect to obtain outline permission and thence for the approval of reserved matters should be 2 ½ years.

Section 14(3) provides:

"14(3) Nothing in those provisions shall be construed as requiring it to be assumed that planning permission would necessarily be refused for any development which is not development which, in accordance with those provisions, the granting of permission is to be assumed."

In my judgment, it is reasonable to assume that outline planning permission for residential development would have been forthcoming on the subject land within a very short timescale, and, as I have said, I consider that if an application were being made from scratch, full consent with approval of reserved matters would have been granted within 2 ½ years of the valuation date. Whether or not one looks at the Local Plan or the Structure Plan, for the reasons I have given above, there was a demand for housing that could not be satisfied without considering sites such as this. Having accepted that the subject land was by far the most suitable of any of the available sites, and being of the view that the local planning authority would not regard the question of whether or not development would be piecemeal as overriding the need for extensive new housing, I do not accept the acquiring authority's case that there would be a 10 year delay. As Mr Blackmore pointed out, the Member in Hooper said, in respect of plot 28, that the result of any planning application should be considered in the light of the provisions of the Structure Plan that had been adopted shortly before the valuation date. As I have said, the demand for housing in the area was substantial, as the evidence clearly showed, and for the reasons that have already been rehearsed, I am of the view that the subject land would have come forward early in the development cycle.

Regarding the effect that the existence of the overhead power lines might have on the prospects for development on part of the land, I prefer Mr Muir's reasoned and considered approach over Mr Scoot's statement that because of the restriction in the scheme planning permission, no development could take place within a 100 metre corridor. I accept the proposition that an appeal against such a restrictive condition would be likely to be successful bearing in mind the comments of the inspector in the deposit draft to the Swansea Local Plan Review No 1 dated March 1996 to the effect that "the sort of policy put before the council is not justified on scientific grounds". Although that review was not adopted at the valuation date, it is indicative of the attitudes to development within the vicinity of power lines. Also, the information imparted to Mr Perons on enquiry of Western Power Distribution Ltd that a 5.4 metre clearance would be the minimum permissible for a 132 KV line, and his view that, in reality, 20 metre corridor (subsequently amended to 15 m each side of the lines) would be sufficient persuades me that a developer would have been successful in getting such a condition amended.

Even if he were unable to negotiate a revision to the condition, the developer would have the opportunity to terminate the wayleave on giving 12 months notice in writing. However, in my judgment, not only would this be a fairly tortuous and time-consuming route to follow, but also the Statutory Undertaking would be able to apply for a compulsory wayleave under para 6 of Sch 4 to the Electricity Act 1989. The landowner could object, but in practice unless there was an obviously better route that would justify the cost of diverting the line, the wayleave would be likely to be granted.

The landowner could seek, as was pointed out by Mr Perons, a capital sum by way of compensation from the undertaker in exchange for a permanent easement. The compensation would reflect the loss of development value caused by the line and, in my view, such a sum might also be payable where a temporary wayleave was granted.

Either way, therefore, I am of the view that the existence of the power lines would not serve as a constraint on development. However, the additional time that would be required for this aspect to be resolved has been taken into account in my valuation.

I now turn to the question of the prospects for obtaining planning permission for another 46 units at a later date. The claimants say that a developer would take a view that such an opportunity could occur and, in addition, that development of the subject land could open up further development prospects on otherwise landlocked sites to the south. This would be a long term prospect, and Mr Perons therefore deferred the potential development value over 10 years, deducted the additional grouting costs (per Mr Gray) and then reduced that sum by 40% to reflect the risk factor. Any such additional permission would, he accepted, be subject to improvements having to be carried out to the highways network. On the other hand, the acquiring authority's view was that permission for 60 units would not be forthcoming for at least 10 years, and the additional, undeveloped land would be used in part for the construction of the required attenuation ponds, with the remainder set down for agricultural use and eventually sold off when the development was complete.

In my judgment, the claimants' arguments are to be preferred. It was clear from the sketch plans that the claimants had prepared that the subject land would be capable of supporting further development in due course, and in the light of the housing need in the area that has been identified, I can see no justifiable reason why, after a period of 10 years, further development would not be a distinct possibility. However, in my view, Mr Perons' allowance of a 60 per cent chance of such further development being permitted was somewhat optimistic. Whilst there is no doubt in my mind that once development of the major portion of the subject land had taken place, and presumably further residential developments would have been permitted in the vicinity, highway improvements to facilitate such may well have been proposed and approved.

Nevertheless, bearing in mind a developer will be looking at very long term prospects (10 years) and there will be a number of imponderables as set out above (including some question as to whether, if some form of attenuation is needed, a further 46 units could actually be accommodated) I think that, realistically, he would not be prepared to pay more than 25% of the current development value, less allowances for abnormal costs. In coming to this conclusion I again note Mr Scoot's concession that a developer considering purchasing the site (for 60 houses) would recognise the potential for long-term further development and that it could also, possibly, open up further land-locked land for development.

Abnormal Development Costs

The cost of providing a pumping station for foul drainage is agreed at £25,000 inclusive of fees. Mr Perons' estimate of the cost of obtaining a drainage easement for connection of surface water drains into a watercourse on land outside the site appears sensible, and I accept it.

The need for, and extent of, grouting and associated raft foundations together with the costs were a significant area of dispute. The claimants' assessments and costings were based upon the results of the probehole survey that was undertaken by Terra Firma (Wales) Ltd and the recommendations in the C.I.R.I.A. report. The extent of the investigations was, Mr Gray said, similar to those that a developer would undertake prior to acquisition. A coal mining report had first been obtained to ascertain the extent of mining influence within the area, but it left some questions as to the extent of the Drews coal seam, hence the further survey. The acquiring authority's figures (which were amended following the hearing as they had been assessed at 2002 prices, rather than those applicable in 1996) were, it was admitted, 'belt and braces' and 'in the upper quartile'. The C.I.R.I.A. recommendations had been exceeded by some 50%, resulting in the need for more extensive grouting than had been allowed for by the claimants.

Both parties accepted that their assessments of the extent of grouting that would be necessary were 'a stab in the dark' and the exact amounts would only become known when the works were actually commenced. Whilst accepting the acquiring authority's views that, ideally, some additional boreholes would have been helpful, I do think they have been unduly pessimistic in respect of their costings, particularly as to the adoption of the 'safest' route of allowing for grouting in all areas where rock cover was less than 15 metres. It is a fact that no mine workings have been undertaken for around 70 years, and there is no evidence of any crown-holes having opened up. Furthermore, Mr Peacock's evidence was not based upon any investigations of his own, and he had relied upon the research undertaken by Mr Gray and his associated company. I have no reason to dispute Mr Gray's findings, or his projected costs and accept that those investigations that were carried out were those upon which a developer would have based his bid.

However, as I have said, it does seem to me that the number of probehole samples taken was fairly minimal and, bearing in mind the acknowledged unreliability of the coal mining plans, some further probes to the north of the seam might have revealed the need for some additional works. It is right therefore, in my judgment, to build in some sort of contingency but not to the extent promulgated by the acquiring authority as, not only had Mr Peacock allowed for the recommendations to be significantly exceeded, but Mr Harlow had built in an additional £50,000 buffer against unforeseen costs.

For 15 out of the proposed 60 houses, Mr Gray's figure for grouting and raft foundations was £90,000 inclusive of roads and footways and fees. Mr Peacock's revised figures, based upon 31 units needing grouting and raft foundations together with roadways and paths were £253,989 to which Mr Harlow added £50,000 making just over £300,000. Doing the best that I can, and mindful of the fact that it is impossible to be specific, I propose to adopt Mr Gray's figures, but add a contingency (which a developer would probably do) against unknown problems of £50,000 as recommended by Mr Harlow. This gives a cost for grouting and associated works of £140,000 for a development of 60 units. As to the additional 46 units, no figures have been provided by the acquiring authority as, in their view, this is irrelevant. The claimants say another 27 houses would need grouting and raft foundations, and the figure for this is £162,000, deferred 10 years at 12%. On the basis that I have accepted Mr Gray's figures in respect of the first 60 houses, I propose to do likewise with his estimate for the additional 27 but, again, I do consider a further contingency appropriate and add an additional £50,000 to cover that point. That will, of course, be deferred 10 years in accordance with my acceptance of Mr Peron's opinion on the likelihood of further development.

I now turn to the need or otherwise for attenuation measures in respect of storm water drainage and green field run-off. Mr Gray said that there was no condition in the planning consent relating to green-field run off and, basing his opinion on the results of the land survey that had been undertaken, a gravity storm-water system would be sufficient for the site. In his opinion there would be no need for attenuation measures in the form of a balancing pond. The trial pits, he said, indicated there were no problems with ground-water over the majority of the site, and any drainage problems that were occurring were due to the lack of maintenance to the existing ditches.

Conversely, Mr Peacock took a much more pessimistic view. There would be problems in dealing with storm-water drainage when the Nant Bran stream was running full and, in his view there would be insufficient fall from the rearmost (east) edge of the site to give the required velocity. He was also concerned that, as shown on the Ordnance Survey sheets, there were issues rising along the railway bank, and some parts of the site were marshy. His estimates for dealing with storm-water and green field run off amounted to £18,169 plus fees.

Mr Peacock's opinion did not result from his own investigations, but from his own interpretation of the surveys that had been commissioned by the claimants and from his own interpretation of what he saw in the trial pits. Those surveys, in my judgment, are what a developer would undertake before finalising his bid for the land, but the experts interpretations conflict. On the basis of the evidence, it is impossible to conclude who is right and who is wrong but in my judgment, a developer would, on the basis of those surveys, want to make an allowance for the possibility that some attenuation measures would be required. I propose, therefore, to allow a contingency sum of £10,000 for this aspect.

In respect of the need to provide an electricity transformer, Mr Gray estimated, from his knowledge of costs on similar sized developments, £10,000 to £12,000 on the assumption that an upgrade to a high-voltage supply would not be required for 60 houses. Mr Peacock estimated £24,776 on the basis that an allowance would have to be made for providing high-voltage from the nearest available supply. He admitted that this assessment was unscientific and was not based upon known costs. I accept that it is risky to conclude that high-voltage power supplies would not be necessary, and it does seem to me that Mr Perons' estimate appears low. Again, doing the best that I can on the evidence available, I propose to allow a figure of £20,000 against this cost.

This leaves the question of redistribution and importation of fill. Mr Gray said that the two mounds on the site, that investigations had shown to consist of sand and to be uncontaminated, could be considered to be a benefit. There would, according to Mr Peacock, be a cost for redistributing the mounds and for a limited amount of fill to be imported. This amounted to £14,040 plus fees.

In my judgment, the sand on the site would, indeed, be seen by a developer as an asset and the cost of redistributing it would, in my opinion, be a normal development cost. The need for some additional fill is again something that, in my view, a developer would build into his normal development costs and, in any event, there must be a question as to whether he would actually have to pay for it. I therefore make no allowance for costs in respect of this issue.

It will be seen from the above that it has not been necessary for me to make a decision as to which of the indices relied upon by the valuation experts in recalculating Mr Peacock's engineering prices back to 1996 values was the most appropriate. However, in my judgment, if it had been necessary to do so, logic dictates that the BCIS All-in Tender Index adopted by Mr Perons was the correct one. As he said, correctly in my view, for the majority of the works (especially the grouting) it would be unlikely that the developer would be the contractor, but the works would be outsourced to specialists.

Valuation

I need to consider whether section 6 and Schedule 1 to the 1961 Act and/or Pointe Gourde operate so as to affect the valuation that I have to carry out. This is an acquisition for purposes involving the development of the land to be acquired, and it thus falls within Case 1 of Schedule 1. Under section 6 I must leave out of account any increase or decrease in the value of the relevant interest which is attributable to the carrying out, or the prospect of so much of the development of any of the other land authorised to be acquired as would not have been likely to have been carried out, if the acquiring authority had not acquired, and did not propose to acquire, any of that land.

The conclusion that I have expressed is that the subject land would have been capable of development independently of any of the other scheme land, and I do not think that its value would have been affected, either positively or negatively, by the prospect of development of any of the other land in the scheme. Its value was simply dependent on the planning permission that would have been granted, and the time at which it would have been granted.

No additional consideration is raised in Pointe Gourde, in my view. As I have said earlier, Pointe Gourde does not require me to disregard any actual planning permission, any more than it requires me to disregard any planning permission that is to be assumed under sections 14-16, and in these circumstances the effect of Pointe Gourde is the same as section 6.

On the basis of the conclusions I have set out above, the valuation of the reference land, as set out at Appendix 1 to this decision, becomes £500,000, and I determine compensation in that sum.

This determination will take effect as a decision when the question of costs has been decided, and at that point, and not before, the right of appeal will come into operation. The parties are invited to make submissions as to the costs of this reference and a letter accompanying this decision sets out the procedure for submissions in writing.

Dated 22 August 2003

(Signed) P R Francis FRICS

ADDENDUM ON COSTS

I have received notification that the parties have agreed that the respondent should be responsible for the claimants' costs in this reference. I therefore determine that the acquiring authority shall pay the claimants costs, such costs to be the subject of a detailed assessment by the Registrar if not agreed.

Dated 9 September 2003

(Signed) P R Francis FRICS

ACQ/35/2002

Appendix 1

Land at Walters Road, Llansamlet, Swansea

VALUATION

Plot 6 – Residential Development for 60 houses (phase 1)

Value of 2.43ha (6 acres) @ £325,000 per ha (agreed) £789,750

Less Abnormal Costs

Foul drainage pumping station £ 25,000

Cost of obtaining surface water

drainage easement £ 10,000

Contingency for storm water/attenuation

measures £ 10,000

Grouting/raft foundations (15 @ £6,000) £ 90,000

Contingency £ 50,000

Electricity transformer £ 20.000

£205,000

£584,750

P V of £1 deferred 2 years @ 12% 0.797

£466,045

Plot 6 – Residential Development for 46 houses (Phase 2)

Value of 2.02 ha (4.99 acres) @ £325,000 per ha £656,500

Less Abnormal Costs

Grouting/raft foundations (27 @ £6,000) £162,000

Contingency £ 50,000

£212,000

£444,500

P V of £1 deferred 10 years @ 12% 0.322

£143,129

Less Risk factor @ 75 per cent £ 35,782

Plot 29

Agricultural value as agreed £ 3,400

£505,227

Less Cost of pre-purchase site investigations as agreed £ 5,000

£500,227

SAY £ 500,000

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWLands/2003/ACQ_35_2002.html

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Lands Tribunal
You are here: BAILII >> Databases >> England and Wales Lands Tribunal >> Griffiths & Anor v City & County Of Swansea [2003] EWLands ACQ_35_2002 (22 August 2003) URL: http://www.bailii.org/ew/cases/EWLands/2003/ACQ_35_2002.html Cite as: [2003] EWLands ACQ_35_2002