Land Compensation Manual Section 14: Injurious affection - no land taken

Part 1: Land Compensation Act 1973

The Valuation Office Agency`s technical manual covering all aspects of compulsory purchase and compensation.

Compensation for depreciation caused by use of public works

14.1 General

Responsible authorities, including Government Departments, may be liable under part 1 Land Compensation Act 1973 (LCA 1973) to pay compensation for depreciation in the value of an interest in land which is attributable to the use of public works where the ‘relevant date’ is on or after 17 October 1969, and where no land has been taken from the claimant.

The affinity between such cases and those arising under the ‘McCarthy Rules’ (see part 2 of this section) which govern the payment of compensation under section 10 Compulsory Purchase Act 1965 will be readily appreciated.

A clear distinction must be made between section 10 of the 1965 Act, which deals with damage due to the execution of the works, and Part 1 of the 1973 Act, which introduced rights to compensation for their subsequent use.

14.2 Responsible authorities

The responsible authority is in relation to a highway the appropriate highway authority, and in relation to other public works the authority providing those works.

14.3 Public works

Public works comprise any highway; any aerodrome; and any works or land (not being a highway or aerodrome) provided or used in the exercise of statutory powers.

It should be noted that aerodromes occupied by Government Departments would not be classed as ‘public works’ for the purposes of the Act but nevertheless may be the subject of claims under the Noise Amelioration Scheme (Military) (which replaced the former MOD Noise Insulation Grant Scheme) which, subject to the noise contour in which the property lies, provides a discretionary offer to purchase, an acoustic glazing package or a grant for an acoustic glazing package.

Part 1 is concerned mainly with new works coming into use for the first time, so that an intensification of use of an existing work will not give rise to compensation entitlement. The provisions do apply however where public works are:

(i) reconstructed, extended or altered

(ii) there is a change of use (other than an intensification of an existing use) of public works other than a highway or aerodrome.

The carriageway of a highway is altered after opening where:

(i) the position, level (otherwise than by re-surfacing) or width of an existing highway is altered,

or

(ii) an additional carriageway is provided to a highway beside, above or below an existing carriageway

and in the case of aerodromes, where:

(iii) an existing runway is extended, strengthened or substantially realigned,

or

(iv) an existing taxiway or apron is substantially enlarged or altered for the purpose of providing facilities for a greater number of aircraft.

Where the second carriageway of a dual carriageway highway is first opened at a later date than the first carriageway, section 9 LCA 1973 is interpreted as requiring that each carriageway is to be treated as a ‘highway’ for the purposes of compensation so that each carriageway will have its own ‘relevant date’ and be the subject of a separate claim.

New motorway lighting schemes installed on existing motorways are to be regarded as ‘public works’ provided or used in the exercise of statutory powers for the purposes of section 1(3)(c) LCA 1973 and not as alterations to the existing motorway under section 9 LCA 1973.

14.4 Relevant date

In the context of part 1 the ‘relevant date’ must fall on or after 17 October 1969 and means

a) in the case of a highway

i) the date on which it was first opened to public traffic or

ii) in relation to an altered highway, the date on which it was first open to public traffic after completion of the alteration

b) in the case of other public works the date on which the new works or the alterations to those works were first used after completion or in the case of a change of use of any public works the date of the change of use.

The responsible authority is required to record and furnish such dates in writing on demand.

14.5 Valuers’ services

VOA valuers’ services are available to responsible authorities for valuation advice, and for the negotiation of claims for compensation.

Limit of liability - physical factors

14.6 General

Compensation is limited to depreciation in the value of the qualifying interest caused by the use of the land or works but only in so far as that depreciation is attributable to ‘physical factors’, which are defined in section 1 LCA 1973 as noise, vibration, smell, fumes, smoke, artificial lighting, and the discharge on to the land in respect of which the claim is made of any solid or liquid substance. These are the only factors to be taken into account, and their source must be within the public works, although additionally, incoming and outgoing aircraft are treated as being part of the use of an aerodrome. Physical factors caused by accidents involving vehicles or aircraft are excluded.

Claims may well refer to certain of these factors only, but in considering depreciation valuers should consider whether any combination of these is evident and not restrict their assessment to those cited in claims.

14.7 Alterations to works and changes of use

Where a claim relates to alterations to public works or changes of use, the compensation is limited to the depreciation that would not have been caused but for the alteration or change of use (section 9(2) LCA 1973). Thus, compensation is not payable in respect of depreciation attributable to physical factors that might reasonably have been expected to be caused by the use of the works (and any expected intensification of the use) if the alteration, or changes of use had not been made. It is only the additional depreciation attributable to physical factors arising as a result of the alterations or change of use that is compensatable.

In the case of an alteration to the carriageway of a highway, depreciation is limited to that attributable to physical factors caused by the use of, and that have their source within, the length of carriageway that has been altered. Where the works giving rise to the claim comprise the construction of an additional carriageway, account should be taken of the physical factors that are caused by the use of, and have their source within, both the additional carriageway and the corresponding length of the existing carriageway.

14.8 Background information

Background information on the physical factors is included at Practice Note 14/1.

Qualifying interests

14.9 General

Broadly the qualifying interests correspond to those in respect of which a ‘blight’ notice may be served (see section 15 Part 2 of this Manual) but it should be noted that in addition a non‑resident owner of a dwelling may qualify for compensation under Part 1 LCA 1973 where the interest does not carry the right to occupy the land. This allows for claims to be made by landlords in respect of tenanted residential properties including local authority owned tenanted properties, but not for vacant properties.

14.10 Date of acquisition of claimant’s interest

Provided that it was acquired by the claimant before the relevant date an interest qualifies if it is either freehold or leasehold (having at least three years remaining unexpired at the date upon which notice of claim is served) subsisting in:

a) a dwelling, provided that it is an owner’s interest and that the claimant occupies the dwelling as a residence where the claimant’s interest carries the right so to do, or

b) an agricultural unit as defined in section 171(1) Town and Country Planning Act 1990, providing the claimant is the occupier, or

c) a hereditament that is wholly or substantially occupied by the claimant, the annual value of which does not exceed the limits prescribed in sections 149(3)(a) and 171 TCPA 1990, currently set at an annual value not exceeding £36,000 (£44,200 in Greater London) (SI 2017 No 472). Prior to 21 April 2017 the annual value limit was £34,800.

‘Hereditament’ and ‘annual value’ have the same meanings as in section 171 TCPA 1971, taking references to the ‘date of service’ under section 168 of that Act as references to the date on which the notice of the claim is served.

Notwithstanding that the claimant acquired the interest after the relevant date the claim may nevertheless qualify if the property was acquired by inheritance from a person who also acquired it before that date (section 11 LCA 1973).

14.11 Leasehold Reform Act 1967 and Leasehold Reform Housing and Urban Development Act 1993

A person who is entitled under the LRA 1967 (as amended) to acquire the freehold or an extended lease of a house or flat and who had given notice on or before the relevant date of that person’s desire to that end but has not acquired it when the claim is made may make a valid claim under Pt 1 LCA 1973 irrespective of the term unexpired on the date of the claim (section 12 LCA 1973). There is no similar provision where the notice is given after the relevant date. If by the time a claim is made a claimant has ceased to be entitled to the old lease because the freehold or an extended lease has been acquired in pursuance of a notice so served that person can nonetheless make a claim in respect of the old lease. If a person has sold the new interest before the first claim day that person is still entitled to a claim provided it is made before the new interest has been disposed of. Compensation is not payable before the first claim day.

Briefly, the effect of this is that the lessee will suffer the financial effect of the physical factors on the building until the expiry of the extended lease, or for the life of the building, as the case may be and also on the site for the unexpired term of the old lease. The landlord’s compensation will be based on the value of the landlord’s interest subject to the notice, bearing in mind that the sum that can be expected on enfranchisement will be affected by the impact of the physical factors on the value of the reversionary interest in the site.

Claim notice

14.12 Form of claim

A claim may be made by the owner of a qualifying interest, or by a mortgagee of such an interest. The claim must be in the form of a notice served on the responsible authority and must contain particulars prescribed by section 3 LCA 1973.

In Fennessy and Another v London City Airport Ltd [1995] 2 EGLR 167 the claim forms specified the amount being claimed as ‘An amount in excess of £50 to be agreed’. The compensating authority contended that no valid claims had been made because the notice of claim did not satisfy section 3(1)(f) of the Act as the amount being claimed had not been sufficiently specified. The Lands Tribunal determined that the claimants had failed to make valid claims. The notice of claim must include the amount of compensation being sought and not some purely arbitrary figure to be negotiated later. (It was noted by the Tribunal that the claimants were still able to submit valid claims because the limitation period for submission had not yet expired at the date of the decision).

14.13 Time limit for claim

No claim shall be made before the expiration of twelve months from the ‘relevant date’, and the day next following the expiration of the said twelve months is referred to as the ‘first claim day’. Thus the ‘first claim day’ occurs 366 days after the ‘relevant date’ and, for example, in relation to a ‘relevant date’ that occurred on 1 April 2015 the ‘first claim day’ would be 2 April 2016. In accordance with the Limitation Act 1980 a claim notice may be served at any time within the period of six years following the ‘first claim day’.

However a claim may be made during the twelve-month period between the relevant date and the first claim day where the claimant contracts to sell the interest, or grants a tenancy (where the interest is not in a dwelling), and the claim is made before the interest is disposed of or the tenancy granted, but the compensation is not payable before the first claim day.

14.14 Private street to public highway

Section 19(3) LCA 1973 provides that where a highway becomes open to public traffic but does not within three years of that date become a highway maintainable at the public expense (ie is not adopted by the highway authority), no claim under Part I of the Act shall be made. This provision can be contentious and has led to accusations of highway authorities’ deliberately delaying the adoption of new highways in order to avoid having to pay compensation under the Act.

In Price v Caerphilly CBC [2005] 1 EGLR 157 and O’Connor v Wiltshire CC [2006] 18 EG 152, the Lands Tribunal held that section 19(3) was not incompatible with the European Convention on Human Rights and that the LCA 1973 was seeking to balance the interests of claimants and those of the wider community. The latter case was appealed to the Court of Appeal ([2007] EWCA Civ 426) but the point in issue was not determined since the Court decided as a matter of law that the consortium that constructed the road had done so as the agent of the Council. Thus since the Council had effectively constructed the road it had become maintainable at public expense within the three year period.

In the later case of Thomas v Bridgend CBC [2011] All ER (D) 234, the Court of Appeal determined, overturning the decision at first instance of the Lands Tribunal, that human rights considerations did apply to section 19(3). The case concerned a new highway that the highway authority had refused to adopt on the grounds that the developer had not constructed the road to a sufficient standard.

The Court of Appeal considered the case under Article 1 of the ECHR which provides that everyone is entitled to the peaceful enjoyment of his possessions and that no one shall be deprived of his possessions except lawfully and in the public interest. The Court determined that the interference in this case was in the general interest and had been undertaken lawfully but that there was an interference with peaceful enjoyment sufficient to engage Article 1. The Court further considered that the interference did not strike the requisite fair balance between the public interest and the protection of the individual’s rights and so a breach of Article 1 had been established. The Court declined to determine a revised wording of section 19(3) but made a preliminary finding that the claimants were entitled to compensation.

It is not for valuers to determine the validity of compensation claims and any similar cases should be referred to the compensating authority for legal advice as to the way forward.

Claims barred or compensation not payable under part 1 LCA 1973

14.15 Common Law defence of statutory immunity

Compensation is not payable, except in the case of a highway, unless there is immunity from actions for nuisance in respect of the use of the works conferred by some enactment or by the Civil Aviation Act 1980 in the case of aerodromes and aircraft.

If LCA 1973 did not apply due to the absence of statutory immunity it would be for the compensating authority to determine whether the injured party had a right of action at common law. However, an authority that declined to accept a claim made under Part 1 LCA 1973 on the grounds that it had no immunity would be denied the defence of immunity if such an action were subsequently taken.

In Marsh v Powys County Council [1997] 2 EGLR 177 it was held in relation to a claim for compensation submitted following the construction of a school in the vicinity of the claimant’s property that a claim for compensation could not be maintained under Part I LCA 1973 since the Education Act 1944 did not confer on the County Council, expressly or by implication, immunity from actions for nuisance.

14.16 Previous claim

If compensation has been paid or has become payable under an earlier claim under Part 1 LCA 1973 in respect of the same works and the same land (or part of it) no further compensation is payable even though such earlier claim related to a different interest. The only exception is that in the case of a dwelling claims may be made in respect of both freehold and leasehold interests.

14.17 Claim for land retained following land acquisition

Section 8(2) LCA 1973 states that compensation is not payable in respect of any interest in retained land that, relative to an acquisition for the purpose of the public works, fell or falls to be considered as an interest in land that in relation to the land acquired constitutes ‘other land or lands’ within the meaning of section 7 CPA 1965. This provision applies whether the acquisition is before or after the date Part 1 LCA 1973 came into force (ie the commencement date 23 June 1973) or whether or not any compensation is or was paid in respect of injurious affection. Section 8(4) LCA 1973 provides a safeguard to a prospective purchaser of the retained land insofar as the acquiring authority is required to register particulars of the land retained and the extent of the public works.

14.18 Minimum compensation

Compensation shall not be payable on any claim unless the amount of the compensation exceeds £50.

14.19 Compensation under other enactments

Compensation shall not be payable in respect of the same depreciation both under Part 1 LCA 1973 and under any other enactment. Subject to that, the claimant’s rights to compensation under any other enactment (for example section CPA 1965) relating to compensation in respect of the same works where no land is taken are not affected and those claims can usually be made as soon as the works have been executed whereas those under LCA 1973 have to wait until a year after the use has commenced.

Mortgages

14.20 General

A mortgagee may make a claim under section 10 LCA 1973. This is not a claim in respect of the mortgagee’s interest but is a claim in respect of the interest subject to mortgage and the mortgage is to be disregarded in assessing the amount of the claim (section 4(4)(c) LCA 1973). It should be noted that compensation relating to mortgaged property is payable to the mortgagee, not the mortgagor, irrespective of which of them makes the claim, and is to be applied as proceeds of sale. Hence details of any mortgage will need to be included in reports.

Inspection

14.21 General

Upon receipt of a notice of claim the responsible authority’s representative may, on giving reasonable notice, enter onto the affected land for survey and valuation purposes (section 3(4) LCA 1973).

Assessment of compensation

14.22 Planning assumptions

All prospect of development or material change of use of the land in respect of which the claim is made is to be disregarded (including any for which permission has been granted but not implemented). It is to be assumed that development within Schedule 3 TCPA 1990 would be permitted except where such development has been refused or restricted so as to give rise to the payment of compensation under section 114 TCPA 1990. Schedule 3 development is not to be assumed where compensation has become payable under section 115 TCPA 1990 as a consequence of a discontinuance order made under section 102 thereof.

14.23 Nature of the interest

The nature of the legal interest is taken as it exists on the date the claim is made.

Any existing mortgage or contract for sale or any contract made after the relevant date for the grant of a tenancy (section 4(4)(a) LCA 1973) will be ignored.

The condition of the land generally is to be taken as it stood on the date of service of notice of claim. Any value attributable to a change of use occurring after the relevant date, or any building or improved building or extension of a building, first occupied after the relevant date is to be left out of account (section 4(5) LCA 1973).

14.24 Valuation date

Values are to be calculated in accordance with the prices current on the first claim day (section 4(1) LCA 1973).

14.25 Rules for valuation

The relevant land is to be valued in accordance with rules (2) to (4) section 5 LCA 1961.

14.26 Intensity of use of the public works

The intensity of use of the public works is to be taken as it exists on the first claim day but having regard to any intensification that may reasonably be expected in the use of the works in the state in which they are at that date (section 4(2) LCA 1973).

It Dhenin v Department of Transport (1990) 60 P&CR 349 the Lands Tribunal held that the Bwllfa principle (hindsight) could have little or no application to Part I claims since compensation has to be ascertained at a specific date, on the facts at that date, on prices current at that date and on any intensification of the use of the public works that might reasonably have been anticipated at that date. The Tribunal stated that it could obtain little assistance from traffic counts or market sales that post-dated the valuation date unless they were helpful in determining the accuracy or otherwise of the assumptions that have to be made as at that date.

14.27 Attitude of purchasers in the market

The substantive compensation does not rest on a traditional ‘before and after’ approach. The stay period of one year is to allow the works to become assimilated as far as possible into the environment and thus to allow their permanent effect to be fairly judged. The valuer should consider the attitude of potential buyers arriving fresh on the scene a year after the relevant date, when the public works are in use. Such a buyer judges the situation as it is and has regard to any intensification of the use of the works as may then be reasonably expected. The potential buyer is genuinely wishing to purchase the property but is under no pressing or special need to do so. The vendor is a willing seller but is likewise under no compulsion.

14.28 Measure of depreciation in value

Subject to what is said below about mitigating works, the measure of depreciation in value is the difference between:

i) the price a purchaser would pay for the property with the presence and use of the public works but without the presence of the ‘physical factors’, and

ii) the price a purchaser would pay for the property with the presence and use of the public works with the presence of the ‘physical factors’.

14.29 Method of valuation

There is no valuation methodology laid down in the 1973 Act.

A comparison between the values suggested in paragraph 14.28 above has been accepted by the Tribunal (Barb v Secretary of State for Transport [1978] 2 EGLR 171 and Arkell v Department of Transport [1983] 2 EGLR 181) where in both cases both the claimants’ and compensating authority’s valuers had agreed on that approach, but later decisions of the Tribunal (for example Maile and Brock v West Sussex CC [1984] 1 EGLR 194) have suggested that it would be preferable to have as a ‘starting point’ a valuation that could be related to comparable market transactions. In that case a percentage of a ‘no scheme’ world valuation was taken to represent the depreciation resulting from the physical factors. Alternatively ‘before and after’ valuations could be made ie a ‘no scheme’ world valuation (disregarding both the works and their use) and a ‘scheme’ world valuation (having regard to both the works and their use) and the depreciation apportioned between the effect of the presence of the works and the effect of the physical factors (Cunliffe v Solihul MBC [1998] 38 RVR 64).

14.30 Effect of mitigating works

Mitigating works may be carried out under the provisions of section 282 HA 1980 (works to mitigate adverse effect of highways), section 20 LCA 1973 (soundproofing), and section 27 LCA 1973 (works to mitigate the adverse effect of public works) and other enactments.

Where soundproofing has been carried out in accordance with section 20 and the regulations thereunder (SI 1975/1763) or under any corresponding provisions, or where any grant for that purpose has been paid, section 4(3) LCA 1973, as amended by section 20 Civil Aviation Act 1980 (which includes soundproofing grants payable under a scheme operated by a person managing an aerodrome), provides that such matters shall be taken into account. When such works or grants have not been implemented but are available it is to be assumed that the works have been carried out. If the responsible authority has discretion, the relevant works or grants can only be assumed to have been implemented if the authority has undertaken to do so.

In the case of mitigating works provided by virtue of section 282 HA 1980 and section 27 LCA 1973, those that are completed at the date of assessment shall be taken into account. Where the mitigating works have been started, but not completed, regard should be had, insofar as the market would do so, to the prospect of completion. Where the works have not been started but, either by public announcement or other means, a clear indication has been given by the date of assessment that specified works will be carried out, regard should be had, to the extent that the market would do so, to the prospect of the works being carried out. In the case where work has neither started nor such an indication given, no adjustment to the compensation should be made.

The Act does not limit the effect of mitigating works on compensation to such works as counter the physical factors on which the claim is founded.

Should the above provisions with regard to mitigating works carried out under section 282 HA 1980 or section 27 LCA 1973 preclude the possibility of settlement due to a reduction in compensation payable, the case should be submitted to the DVS Professional Guidance team before deadlock is reached.

14.31 Scientific measurement

The Report of the Urban Motorway Committee (‘New Roads in Towns’ July 1972), and ‘Calculation of Road Traffic Noise’ (1988) published by HMSO refer to the scientific measurement of noise (see Practice Note 14/1).

In Goodman v Transport for London [2016] UKUT 126 (LC) the Upper Tribunal heard in total over eight hours of oral evidence and considered approximately 800 pages of written submissions from the claimants’ and compensating authority’s noise experts. However, the Tribunal stated ‘Having read copious written evidence and heard extensive oral evidence and submissions on the subject of noise, I do not find myself significantly further forward in my deliberations as to the depreciation in value of the claim properties on the statutory assumptions’. The Tribunal went on to say that evidence in respect of noise is secondary to that of valuation.

14.32 Final effect on purchaser

The question of whether or not a property qualifies for sound-proofing under the Regulations is not of itself an automatic yardstick for assessing compensation although the criteria adopted for those purposes may afford a useful guide in some cases. No amount of double-glazing will, however, alleviate the nuisance suffered in the use of, for example gardens, and the inevitable choice of either having windows permanently closed or suffering noise when they are open, could well have a material effect on value in some situations. The conclusion is therefore that the scientific evidence, whilst often important, must not be allowed to become the prime consideration. It may be of valuable assistance if properly applied, but must be subject to the over-riding opinion of the valuer as to what the reaction of the market would be to the prevailing circumstances. This will probably be judged ultimately against an aggregation of evidence including sales and settled claims.

In Wakeley v London Fire and Civil Defence Authority (LT) [1996] 2 EGLR 148 – a case concerning a newly built fire station - the Tribunal placed greater weight on the subjective evidence of the claimants than the noise readings provided on behalf of the claimants and the compensating authority.

14.33 Offset for betterment

The depreciation assessed in accordance with the above is subject to reduction in respect of any increase in the value of the land the subject of claim. If in the result the compensation assessment does not exceed £50 no compensation is payable.

The provisions for the offset of betterment (section 6 LCA 1973) relate not only to the land that is the subject of the claim but also to any other contiguous or adjacent land that was owned by the claimant on the relevant date in the same beneficial capacity, or as trustee of one trust or representative of one person (land ‘held with’).

The betterment is not limited by existing use value considerations and the amount to be deducted is any increase in the value that is attributable to the existence or the use of the public works. It may be assumed that the onus will be upon the authority to show an unmistakable connection between their scheme and the betterment that they attribute to it. The more obvious instance would be when a material change in development potential is brought about, or where surroundings are so improved by the implementation of the scheme that the result is a net gain for the claimant even in existing use value terms.

In Hallows v Welsh Office [1995] 1 EGLR 191 the Lands Tribunal held that, despite the existence of ‘new’ physical factors emanating from a newly constructed bypass, the property in respect of which the claim was made had benefited overall by its position in a cul-de-sac as a result of the scheme whereas it had previously fronted a through road, and thus no compensation was payable.

14.34 Claimants costs – surveyors’ fees

Where compensation is payable under Part 1 LCA 1973 reasonable valuation or legal expenses incurred by the claimant in preparing and prosecuting the claim are also payable as additional items, but without prejudice to the powers of the Upper Tribunal (Lands Chamber) in respect of costs in any proceedings before them.

Provision for the reimbursement of reasonable valuation or legal expenses under section 3(5) LCA 1973 relates to claims under Part I LCA 1973. The Noise Insulation Regulations made under section 20 Part II LCA 1973 arise in different circumstances and at a different time. Compensation under Part I, and sound-proofing works under Part II, are separate matters, and although section 4(3) LCA 1973 requires account to be taken of sound-proofing works, to avoid duplication the cost of these works is not to be considered as part of the compensation payable in respect of a claim under Part I LCA 1973 for the purposes of calculating the fee payable should an ‘ad valorem’ fee basis be adopted.

Solicitors’ costs are a matter for the responsible authority to whom the claimant should be directed on this issue once the compensation has been determined.

14.36 Interest

Compensation under Part 1 LCA 1973 carries interest at the statutory rate from the date of service of the claim or, if that date is before the first claim day, from that day.

The fees and costs referred to in para 14.34 and 14.35 above do not rank for interest as they are stated in the Act to be ‘in addition to the compensation’.

Adjustment of compensation payable in respect of subsequent acquisition

14.37 General

When land the subject of claim, or other contiguous or adjacent land of a claimant under Pt 1 LCA 1973, is subsequently acquired, it may be necessary to adjust the compensation for the acquisition.

14.38 Depreciated land

If, after a claim under Pt 1 LCA 1973 has been made, all or part of the land is acquired for the same ‘scheme’ (so that depreciation is to be disregarded) either the whole or appropriate part of the Part I compensation is to be deducted from the compensation payable in respect of the acquisition.

14.39 Bettered land

When betterment of any land that is subsequently acquired has been taken into account in determining compensation under Pt I, then, whether the claimant is the original owner or is a person deriving title directly or indirectly from the claimant, some adjustment of the compensation payable in respect of the acquisition may be necessary. This is achieved by providing that the compensation is not to be reduced by virtue of sections 6 or 7 LCA 1961 (or any corresponding enactment) insofar as such reduction would amount to a duplication of the betterment that had been set off on the earlier occasion.

For a compulsory purchase of land that is authorised on or after 22 September 2017 section 32 of the Neighbourhood Planning Act 2017 replaces the reference in section 6(3) LCA 1973 to sections 6 or 7 LCA 1961 (see above paragraph) with revised sections 6A or 6B LCA 1961.

Procedure

14.40 Claim received from responsible authority

Any claims received from the authority should be dealt with expeditiously. Initially the valuer should check that the relevant date has been provided and no essential information omitted and that the office records are not at variance with the statements made. The valuer should take up any discrepancies with the claimant or with the authority as appropriate. The valuer should notify the claimant (or the claimant’s advisers) of the receipt of the claim and invite the submission of any supporting evidence on which the claimant proposes to rely.

The validity of claims is a matter for the decision of the compensating authority. Where valuers are in doubt as to the validity of claims the compensating authority’s attention should be drawn to this potential difficulty with an explanation as to the reason, and they should be invited to reconsider. If serious doubt as to validity arises at this point the matter should be submitted to the PS Professional Guidance team.

14.41 Claim received direct

Any claim received direct by the valuer should be returned to the claimant and the claimant’s attention should be drawn to the requirement of LCA 1973 that it should be served on the responsible authority.

14.42 Enquiries re factual evidence

In appropriate cases, the valuer should institute enquiries of the authority as regards the existence of factual evidence concerning the alleged effect of the material physical factors, and concerning the provision or availability of mitigating works or grants.

Where appropriate the valuer should suggest to the authority that noise or other readings would be necessary to progress the claim.

14.43 Value evidence

In addition to the use of SDLT information in evidence, consideration should be given to the assembly of publicly available material that will continue to afford the necessary support to a growing body of settlements, so that the whole is of use in recurring situations such as road works. It is therefore desirable that a record of claims and evidence be maintained from the start for use not only in the local office but also in pursuance of local co-ordination arrangements.

14.44 Technical evidence provided by claimant

Where a claimant introduces evidence of a technical nature (for example the employment of specialists to prepare surveys on the incidence of physical factors) it may be necessary for the valuer to call upon the authority to provide facilities for evaluating such evidence. The authority will normally be expected to furnish the valuer with all such information as is considered essential and appropriate having regard to the relevant circumstances and to provide expert witnesses to speak of such matters in the event of a reference to the Upper Tribunal (Lands Chamber).

14.45 Negotiations

Notwithstanding that the LCA 1973 provides for the payment of interest on the compensation, claimants may be critical of delays in settling their claims bearing in mind that they cannot claim until a year after the works are brought into use. Likewise, authorities are unlikely to be content to pay interest on outstanding compensation for extended periods. Accordingly the valuer should ensure that no delay occurs and any serious lack of prosecution on the part of the claimant should be notified to the authority.

14.46 Timetable

Due to the widely varying numbers of claims received from one scheme to another it would not be practicable to lay down a strict timetable applicable in all cases. Cases should be dealt with as expeditiously as possible. Where large numbers of claims are received for a scheme, the valuer should be able to demonstrate that the claims are being dealt with on a systematic basis should any complaints of delay be received.

14.47 Time limit

Any case which remains unsettled two months after formal written terms of settlement have been made to the claimant or claimant’s agent should be reviewed and consideration given to reporting it to the authority as ‘unagreed’. In appropriate cases the claimant should be informed of the valuer’s intention in this respect.

Unsettled claims

14.48 Reference to Upper Tribunal (Lands Chamber)

LCA 1973 provides for disputes concerning compensation to be determined by the Upper Tribunal (Lands Chamber). When reporting failure to reach agreement the valuer should indicate to the authority:

a) the lowest amount the claimant will accept;

b) the amount the valuer has offered to recommend;

c) the amount of valuation fees that the valuer considers would be payable in respect of the proceedings so far, and whether the valuer is aware that the claimant has incurred legal costs.

14.49 Notification of authority’s intentions

The valuer’s report should state that it is assumed that the authority will notify the claimant of its intention regarding the further treatment of the claim.

14.50 Valuer as expert witness

Where the valuer is to appear as expert witness in Tribunal proceedings the responsible authority would be responsible for the procedural aspects of the case. However, sometimes the responsible authority is inexperienced in these matters and the valuer should be prepared to discuss the progress of the case with and give any reasonable assistance to the authority’s legal advisers.

Reports

14.51 Reports

Reports on completed negotiations in respect of all claims under Pt 1 LCA 1973 should be made on form VO 2015, and in duplicate if required by the authority.

14.52 to 14.65 Reserved