[2001] EWLands LCA_106_2001 (30 November 2001)	

LCA/106/2001
	
	LANDS TRIBUNAL ACT 1949
	
COMPENSATION – Land Compensation Act 1973, Part 1 – residential dwelling – injurious affection – effects of noise, dust and fumes following construction and use of a new junction and access road for a Tesco supermarket – compensation awarded nil

	
IN THE MATTER of a NOTICE OF REFERENCE

	
BETWEEN	BRYAN CANNON	Claimant

	and

	WARWICKSHIRE COUNTY COUNCIL	Compensating
	Authority

	Re: 24 Austin Edwards Drive, Warwick, CV34 5GU

	Tribunal Member: P R Francis FRICS

	Sitting at: Warwick, Coventry and Solihull Valuation Tribunal,
Walton House, 11 The Parade, Leamington Spa, CV32 4DG
	on
28 November 2001

The following case is referred to in this decision:
Keen v Worcestershire County Council (2001) (LT) LCA/44/2001 (Unreported)

Stephen Hinton BSc MRICS, Chartered Surveyor, of Kidderminster, Worcs, with permission of the Tribunal, for the claimant   
Bryan Burgin BSc MRICS, Chartered Surveyor, of Warwickshire County Council, Property Services, with permission of the Tribunal, for the compensating authority

DECISION
1.	This is a reference, heard under the Simplified Procedure, (Rule 28, Lands Tribunal Rules 1996), to determine the compensation payable to Mr. Bryan Cannon (“the claimant”), owner of 24 Austin Edwards Drive, Warwick (“the subject property”) by Warwickshire County Council (“the Council”) under Part 1 of the Land Compensation Act 1973 (“the 1973 Act”) following the coming into use of a new road junction and access to a Tesco Supermarket (“the scheme”).
2.	Mr. Stephen Hinton BSc MRICS, a chartered surveyor practising on his own account as Stephen W Hinton from Kidderminster, Worcs, represented the claimant and gave valuation evidence.   Mr. Bryan Burgin, BSc MRICS, a chartered surveyor and valuer with the respondent Council gave valuation evidence on its behalf.
FACTS
3.	The parties prepared a statement of agreed facts and the matter for determination from which, together with the written and oral evidence and my inspection of the subject property, comparable settlements and the scheme on 28 November 2001, I find the following facts:
3.1	The scheme, the use of which formed the basis of the claim, comprised alterations to an existing junction layout and the construction of a vehicular access to a new Tesco supermarket, petrol filling station and car wash off Emscote Road, the main A445 Warwick to Leamington Spa road.    Details of the layout, traffic signs, street lighting and road markings as referred to in evidence were in accordance with the Council’s plans numbered H/A445-25/8C and H/A44525/19.
3.2	The new road was completed and opened to the public on 7 July 1999, this being the ‘relevant date’ under section 1(9)(a) of the 1973 Act.   The ‘first claim day’ under section 3(2) of the 1973 Act is 12 months after the commencement of the public use of the highway, and 7 July 2000 is therefore the ‘valuation date’.    Compensation, if any, is to be assessed by reference to prices current on that date (section 4(1) of the 1973 Act).
3.3	The subject property comprises a modern, two bedroom semi-detached freehold house and attached single garage, well maintained and in good decorative condition.   It has a small open plan front garden and a small, enclosed garden to the rear, which backs on to the Grand Union Canal and towpath.    Austin Edwards Drive is a residential cul-de-sac which was constructed on land bounded to the south by Emscote Road and to the west by the canal, and is accessed off All Saints Road which, itself, connects to Emscote Road.    No.24 is located towards the south-west corner of the development and is 35 metres from the northernmost point of the scheme, but is shielded from it by the hump-back bridge that takes Emscote Road over the canal.        
3.4	A claim for compensation was submitted to the Council on behalf of the claimant by Mr. Hinton on 19 January 2001, this following settlement of a number of other claims relating to the scheme in the vicinity.  Following failure to agree compensation, a Notice of Reference was submitted to this Tribunal on 18 August 2001. 
3.5	It was agreed that the ‘physical factors’ for which compensation may be payable were noise, dust and pollution from traffic using the new supermarket access and altered highway.   The value of the subject property, ignoring the effects of the scheme, or any proposals for it, was agreed at £95,000.
ISSUE
4.	The only issue for my determination is whether there are physical factors emanating from the use of the new access road and altered junction, and having their source within the altered carriageway, which result in a depreciation in the open market value of the subject property.
CLAIMANT’S CASE
5.	  Mr. Hinton is a chartered surveyor who specialises in compensation matters which make up in excess of 50 per cent of his professional work.   He had acted for the claimants in all the settlements relating to the scheme referred to in the evidence, and all of those had been achieved amicably and without problems.   The reason that this reference had been made (and it was stressed that this was also an amicable application), was that he and Mr. Burgin were fundamentally at odds over whether the subject property had been affected at all.
6.	The subject property, Mr. Hinton said, was located close to Emscote Road, which is, and always has been, a busy major route between Warwick and Leamington Spa.   The new Tesco supermarket, which has 24 hour opening throughout the week and is also open on Sundays has, in addition to the store, a petrol filling station that is open 24 hours, 7 full days a week, together with a car-wash.    This has resulted in a substantial increase in traffic using both the unaltered and altered parts of Emscote Road (the road having been widened to accommodate the new traffic-light controlled junction), and the new access road itself.    Whereas Emscote Road used to become relatively quiet overnight and in the early hours of the morning, there was now a constant flow of traffic, including HGV’s making overnight deliveries.     
7.	Mr. Hinton said that the claimant’s enjoyment of the rear garden of his house during the summer months had been substantially affected by increased noise, together with dust and fumes.    Whilst he accepted that a line had to be drawn somewhere in compensation terms, it was his opinion that, based upon the figures paid on the agreed settlements in the immediate vicinity, the subject property’s open market value had been decreased by 2 per cent, or £1,900.
8.	The terrace of 4 properties forming 28 to 34 Austin Edwards Drive which were located at the end of the cul-de-sac, immediately backed onto Emscote Road and were closer to the new junction, had had compensation agreed at 2.5 per cent on the 3 worst affected, and 2.25 per cent on the one furthest away from the junction.   No. 75 Emscote Road, was a Victorian semi-detached cottage that faced and was immediately opposite the new junction, therefore being seriously affected by artificial lighting in the form of car headlights shining directly into its windows.   That property had compensation agreed at 5 per cent.
9.	No.110 Emscote Road, which was also a semi-detached Victorian villa on the same side of the road as the junction, and 35 metres from the widened road at the western extremity of the scheme, had compensation agreed at 1 per cent.    This was, in Mr. Hinton’s view, a very appropriate settlement to compare with the subject property as it was precisely the same distance away from the edge of the scheme, and was located at a point where only very minor road widening had occurred.   It was actually 95 metres from the centre of the new junction, somewhat further than the subject property, and if the principal of compensation had been accepted there, it was certainly appropriate at his client’s property.
10.	Mr. Hinton also referred to No. 71 Emscote Road, a detached property, opposite the westernmost edge of the scheme where compensation had been agreed at 2 per cent.   This house, being adjacent to a transport yard, had always been seriously affected by noise and in his view, if that percentage were applicable there, then again, the same figure should apply to the subject property. 
11.	In cross-examination, Mr. Hinton accepted that 28 – 34 Austin Edwards Drive were more seriously affected as they backed directly onto Emscote Road, but said that No.34 was a similar distance away from the actual junction to the subject property.
12.	Mr. Burgin has worked for the Council for the past three years, previously having been a District Valuer at the Leamington Spa office of the Valuation Office Agency.    He had dealt with the majority of the claims made to the Council under Part 1 of the 1973 Act, and many of them had been where Mr. Hinton was acting.   He agreed that due to the genuine differences of opinion that there had been between them in respect of the subject property, it had been considered that a reference to the Lands Tribunal, to be dealt with under the Simplified Procedure, was the best way to resolve the dispute.
13.	He pointed out that, under section 9 of the 1973 Act, the source of the physical factors for which compensation was being claimed had to emanate from the altered length of the highway, and not, for instance, from intensified use of the part of the highway that had not been altered by the scheme.   Therefore, any additional noise, fumes and emissions caused by vehicles slowing down or speeding up for the junction (other than those using the altered part of the highway) does not rank for compensation.   Mr. Burgin had obtained some informal traffic count figures which had been taken on one day between 7 am and 7 pm and these showed that of approximately 20,000 vehicles using the highway, about 15 per cent used the altered part of the carriageway – the widened sections to each side of the new junction, and the access road itself. 
14.	As Mr. Hinton had said, Emscote Road had always been an extremely busy highway, and in Mr. Burgin’s view the additional traffic that might have been generated by the use of the new access road had no effect whatsoever upon the subject property.   It was set back some 90 feet from Emscote Road and was effectively masked from it, and the scheme, by the canal bridge (over which Emscote Road passes immediately to the east of the new junction), by nos. 28 – 34 Austin Edwards Drive, by the adjacent block of garages and by the other half of the semi-detached house of which the subject property formed part.
15.	The compensation settlements to which Mr. Hinton had referred were all in respect of properties either with a direct frontage to, or backing onto Emscote Road.   For example, 28 – 34 Emscote Road were all particularly badly affected by noise, being immediately adjacent to the commencement of the widened part of the highway leading up to the traffic lights at the new junction.   No.110 had had compensation agreed due to the creation, by the construction of a small central island and light bollard (as part of the scheme) causing a ‘pinch point’ in the highway between the western extremity of the widened road, and a right-turn lane that had been created for traffic waiting to enter All Saints Road, immediately to the east.    Whilst the effect of the new lighting was considered marginal, the contretemps that regularly occurred immediately outside the property as two lanes of traffic had to merge into one, justified a figure of 1 per cent.
16.	Mr. Burgin said that the Council had resisted claims in respect of properties sufficiently distanced from the Emscote Road frontage and the altered carriageway for there to be no possibility of distinguishing the additional noise or other physical factors emanating from the use of the altered part of the carriageway.    The subject property, due to its being at canal level, was particularly well screened from the scheme by the hump-back bridge that carried the road over the canal, to the extent that, in his opinion, no compensation was warranted.
17.	Mr. Hinton suggested, in cross-examination, that because the subject property had a pre-scheme value quite significantly higher (about £10,000) than Nos.28 – 34 due to its better position away from Emscote Road, prospective purchasers would be more sensitive to the effects of noise.   The garden at the subject property had a pleasant, secluded aspect backing onto the canal, rather than the main road, and enjoyment of the garden would be a much more important factor in the buyer’s mind.   Mr. Burgin agreed that that would be the case if there was, indeed, any distinguishable additional noise.   However, in his view, there was no such extra disturbance.
18.	Mr. Burgin accepted that the traffic-count information was an informal exercise that had only been carried out on one day, and said that he did not give it much weight.   He also acknowledged that there had been no pre or post-scheme noise readings taken at the subject property, or any of the others upon which compensation had been agreed.    
DECISION
19.	The question is, simply: has the subject property been adversely affected, to any discernible degree, by noise, dust or pollution resulting from the use of the scheme?    In my judgment it has not.    
20.	There can be no doubt that those properties fronting Emscote Road, and the terrace of 4 houses at 28 – 34 Austin Edwards Drive that back directly on to Emscote Road, very close to the new junction right by the new traffic lights, and upon which compensation has been agreed, have been affected to varying degrees.   In my view, the range of percentages agreed upon those properties seem to reflect the extent to which they have been affected, and the fact that compensation was agreed and paid confirms there to be no dispute in that regard.    I accept Mr. Burgin’s evidence regarding the apparent anomaly regarding the settlement on 110 Emscote Road, and am satisfied that the circumstances there were sufficiently different to those at the subject property to be of little assistance to me.  
21.	Whilst it would be extremely difficult to distinguish between the noise of traffic using the unaltered part of the highway, and that using the widened part and the new access road, to make a determination based upon the provisions of section 9 of the 1973 Act, the fact is that the installation of the traffic lights was also part of the scheme.    This means that traffic that would previously have been heading both east and west on Emscote Road at a steady speed is now, for a substantial part of the time, slowing down and stopping for the lights.  After waiting with engines running, they then accelerate away and change gear.    Therefore, the nature of the noise is now somewhat different and, in my opinion, the changes of engine note and tone will be more disturbing than a constant background ‘drone’.  It follows that I do not accept Mr. Burgin’s argument that, in accordance with s.9, ‘straight through’ traffic has to be ignored, and only that turning in and out of, and using the new access road need to be taken into account.     
22.	Although no figures were produced in evidence, other than the ‘informal’ traffic count to which Mr. Burgin referred, there is no doubt, in my mind, that the very existence of a new supermarket operated by one of the largest chains, together with a petrol filling-station selling fuel at highly competitive rates (as Mr. Hinton pointed out) must have the effect of increasing traffic in the vicinity.
23.	Even allowing for the additional noise, dust and fumes that will have been created, and the increased annoyance caused by changes to traffic noise due to the traffic lights, the fact remains that, within the rear garden of the subject property any noise from the vicinity of Emscote Road is extremely well shielded.    I accept Mr. Burgin’s points about the screening effects of nearby buildings, although right at the rear of the garden adjacent to the towpath, the hump-back bridge and the first bank of traffic lights serving the new junction are clearly visible.    However, the bridge is at a higher level and the brick wall and parapet to the side of it serves to screen virtually all of the traffic flowing in a westerly direction (on the other side of Emscote Road) and all but high-sided vehicles travelling east.   That wall also acts to cut out much of the traffic noise and I found distinguishing different noise levels as vehicles slow down and accelerate away somewhat difficult.
24.	Nevertheless, when double-decker buses and HGV’s pass across the bridge after waiting at the lights, their presence is more noticeable, but in my judgment, any increased disturbance in what is, in reality, a pleasant and relatively secluded garden is nothing more than marginal.   Mr. Hinton said that there was no suggestion that the scheme had any effect within the house, and it was only the back garden that was affected.   As to whether or not a purchaser of the subject property would be more sensitive to the effects of noise intrusion than buyers of Nos. 28 - 34 would be, I think that he would.   That is reflected in the price differential between them.   This is not just because the rear garden of the subject property is a particular attraction, in that it backs onto the canal and towpath (although that attraction might be countered by safety fears in families with very young children), but because 28 – 34 are so close to the main road.   Any person seriously considering buying one of those 4 houses, whose shallow back gardens immediately abut the highway, would not, in my judgment, be someone who sees enjoyment of relaxing in the garden as a priority.
25.	Each case needs to be considered on its merits.  I indicated Keen v Worcestershire County Council (2001) (LT) LCA/44/2001 (Unreported) that, in the circumsatances of that case, there needed to be a very significant differential in terms of type, price and location of properties before any differences in a purchaser’s sensitivity to noise intrusion becomes measurable.   But, in this instance where the specific circumstances are somewhat different and for the reasons I have given, I think that, if there had been any marked increase in noise intrusion, there would be some quantifiable difference in sensitivity to noise.    
26.	However, there is, in my view, no sufficient or measurable additional intrusion to the rear garden of the subject property by compensatable physical factors that would affect the open market value at the valuation date, whatever a purchaser’s sensitivities may be.    Thus, on the basis of the evidence, my own inspection of the subject property and in the absence of formal pre and post-scheme noise readings, I determine that compensation under Part 1 of the 1973 Act shall be nil.            
27.	This decision determines the substantive issue in this reference.   It was heard under the Simplified Procedure, and, there being no special circumstances to warrant doing otherwise, I make no award as to costs.    The provisions relating to the right of appeal in section 3(4) of the Lands Tribunal Act 1949 and order 61 rule 1(1) of the Civil Procedure Rules will come into operation from the date of this decision.
	DATE:		30 November 2001

	(Signed):				P R Francis FRICS