Case No. UKUT-0074-(LC)

In order to be entitled to compensation for disturbance you must normally be in physical occupation of the land. There is however a limited right to disturbance for owners of investment properties who are not in occupation. Compensation is payable in respect of incidental charges or expenses incurred in acquiring, within a period of one year of date of entry, an interest in other land in the United Kingdom.” The claimants did not acquire a replacement property within the twelve-month timescale, and have not therefore taken reasonable steps to mitigate their loss (also per Shun Fung). Regarding mitigation the DCLG booklet said: “In all disturbance cases, whether on the basis of relocation or a total extinguishment, there is a duty on the claimant to ‘mitigate his loss’. This means that you must act reasonably at all times, and take all rational and reasonable steps to avoid incurring additional losses where possible. If the acquiring authority is able to show that your losses were greater than they might have been, due to unreasonable behaviour on your behalf, the compensation should be adjusted to reflect this.” If the claimants had heeded the advice that they had received from a professional valuer shortly prior to the valuation date and used it to attempt to negotiate a higher price, rather than dismissing it entirely and seeking, first before the wrong forum and then before this Tribunal, a figure that was some 37% higher (without the benefit of professional advice), then they could have been in funds to acquire a replacement property. Even though they have received 90% of the Council’s (earlier) estimate of value, Mr Yazdiha on his own evidence has still chosen not to purchase another property and therefore not to recover any rent at all. 50. Thirdly, no evidence of the rental income (such as bank statements, copy rent book entries etc) have been provided, and fourthly there is no evidence as to what attempts, if any, the claimants have made either to try to finance another purchase with the funds that they have had the benefit of since 9 December 2016, or to replicate the income generating potential in some other way.51. Fifthly, as set out in Ryde International PLC v London Regional Transport [2004] EWCA Civ 232, even if the claimants had been deprived of any profit, they have also been deprived of any corresponding risk. The value of the property as determined under rule (2) contains any value that there may be in the opportunity to obtain a rental income, and therefore cannot come within the ambit of rule (6) disturbance as it is directly related to the value of the land.52. It was submitted that despite Mr Yazdiha’s protestations about lack of response from the Council in the first half of 2016, the claimants had themselves made no contact (such as seeking an advance payment) between the vesting date and 8 June 2016. 53. As to the suggestion that the Council had the benefit of the rent on the property until the tenant was evicted, it was denied that any rent has been received from the Claimants’ former tenant, and indeed the Council has incurred the costs of gaining vacant possession which should have been provided at the valuation date.54. For all these reasons, it was submitted that the claim for loss of rent should not be allowed. 55. There is no doubt in my mind that the Council was dilatory in the extreme in progressing the matter once the property was vested in it, and it is clear from the copy email exchanges that despite regular chase ups, no meaningful progress was made between 19 January and 20 June 2016. It was not until then that Mr DaSilva confirmed receipt of the claim [Claimant’s bundle p.62]. That confirmation followed a long and detailed email that Mr Yazdiha had written to Mr Richard Barrett of the Council on 8 June expressing considerable frustration at the lack of meaningful response, and threatening to pursue a money claim through the courts. The criticism of the claimants by counsel for not making contact until June 2016 was, in my view unwarranted. The claim, duly quantified and itemised, was made on the vesting date and it was not even acknowledged until 20 June. The summary of events after that date (which were not disputed by the Council) leads me to conclude that despite much of the Council’s criticism of the Claimants being justified, it was not above criticism of its own actions. 56. Whilst these views cannot alter what I say below about the loss of rent claim, it is most certainly something I shall consider when dealing with the question of costs in the reference. 57. I accept the Council’s submissions on the loss of rent aspect of the claim. It is clearly not a justified head of claim under Rule (6) for the reasons given. I therefore dismiss this head of claim. Issue (4) The County Court claim 58. This matter can be dealt with very shortly. The claim made to Barnet Crown Court on 7 September 2016 was on the basis that due to the Council’s dilatory approach, delay and prevarication and their having failed to “expeditiously and with any reasonable speed agree compensation” it was in breach of the compulsory purchase process. That, it was alleged, was contrary to common law, and despite repeated written requests from the Claimants no payment had been made and no compensation had been agreed some eight months after the property vested in the Council.59. As I have said above, all leaseholders were provided at an early stage with two booklets which set out in clear and understandable terms what compulsory purchase means, the steps that affected owners need to take and how they should go about obtaining further advice and assistance. The Council’s Regeneration Strategy booklet is an impressive and helpful document in which the author(s) can, in my judgment, be justifiably proud. It was specifically directed to all those affected by this scheme and in addition to explaining the CPO procedure and the occupiers’ rights in explicit detail, also gave details of other sources of information. Further, Mr Yazdiha is a property investor who undoubtedly has considerable experience in the residential property market. Also, although there is no record anywhere in the papers relating to the County Court claim that the Claimants were being legally represented, it is clear that he was in touch with Perrin Myddleton both before and after service of the notice. 60. I therefore find it extremely difficult to comprehend why Mr Yazdiha chose to take that route. He was certainly advised by the Council that the County Court was the wrong forum and indeed in his response to Mr Barrett’s email of 21 June 2016 he said:“