[2023] UKUT 217 (LC)

The parties did not agree whether the original access to the Cheshire Lounge was superior or inferior to the new access and each relied on the evidence of an expert in highways and road safety matters. The claimants’ case was that, quite apart from issues related to their rights over the new access, it is inferior to the access previously enjoyed and, in some respects, positively unsafe so that compensation should be paid to reflect the cost of improvements which are required to ensure that they are put in an equivalent position, after the acquisition of the land taken, to the position enjoyed by their predecessors before the acquisition.

The claimant relied on the evidence of Mr Richard Jones, a director of Arcadis, a development consultancy in Manchester. He is a chartered engineer and a fellow of the chartered institution of highways and transportation with 25 years’ experience in the traffic and transportation aspects of development. National Highways relied on the evidence of Mr Andy Cooper, an associate consultant engineer with the professional services company WSP UK Limited. He is a member of the chartered institute of highways and transportation.

Mr Jones and Mr Cooper were well placed by reason of their experience in highways and transportation matters to assist the tribunal and both were knowledgeable and experienced witnesses. Unfortunately, in both their written and oral contributions each tended to promote the interests of the party paying his fee. Fortunately they were able to reach agreement on most matters of significance and on those where they disagreed, it was nearly always obvious whose position was untenable.

The experts explained that the A556 Knutsford to Bowdon Improvement scheme was promoted by National Highways to improve a 7.5km stretch of the A556 trunk road between junction 19 of the M6 near Knutsford and junction 7 of the M56 near Bowdon. The Cheshire Lounge site is at the northern end of the A556 affected by the scheme and works in the vicinity involved the provision of a pre-flow link from the northbound A556 to the M56 eastbound and from the M56 westbound to the A556 southbound. This arrangement required junctions 7 and 8 of the M56 to be substantially improved. Part of the related improvement included closing the original access from the A556 to the Cheshire Lounge site and providing a new access which is reached from a new slip road and roundabout to the south of the free-flow link.

The original access was by means of a T-junction arrangement on the A556 with an acceleration and deceleration lane on the northbound carriageway. Vehicles travelling south could make a right turn onto the access by way of a break in the central reserve and a right turning lane but this manoeuvre required drivers to cross the northbound dual carriageway. The same deceleration and acceleration lane also provided access to a DVSA check point just beyond the Cheshire Lounge access. There was evidence that this arrangement sometimes resulted in vehicles parking temporarily in the deceleration lane where they would present an obstruction to vehicles wishing to turn left onto the Cheshire Lounge access. The speed limit on the approach to the access from the A556 was 50mph.

The replacement access is reached by leaving the A556 on a newly constructed slip road leading to the Bowdon roundabout. The first turn off that roundabout is the A56, Lymm Road, and the new access is on the left shortly after exiting the roundabout. The new route runs for approximately 750m, initially travelling east before turning through 90⁰ and continuing south parallel to the A556 slip road. The first part of the new access, immediately after leaving Lymm Road, is shared by the Cheshire Lounge with a works compound initially established to support the highway improvement scheme but latterly used in connection with HS2. The compound had planning permission to operate until the end of 2022 when its use was to have been discontinued and the land returned to agriculture. An application to extend that permission for a further 5 years until 31 December 2027 is currently being considered by the local planning authority and the compound remains in the use. Construction traffic using the compound is limited to 10mph, but no speed limit is indicated on the remainder of the new access.

The experts agreed that for most of its length the old access was between 5.5 and 6m wide but that at its southern end, closest to the Cheshire Lounge, it widened to between 8 and 12m. This area was used for overspill parking when the Cheshire Lounge was in operation. The new access is between 5.0m and 5.5m wide but again increases at the southern end to approximately 12m. It also has grass verges on each side which are never narrower than 1m wide but for the most part are about 4m wide.

At its southern end the new access runs into the original road surface which, it is agreed, was damaged in the course of the construction works and is required to be improved in order to restore it to its original condition and to make it consistent with the remainder of the new access. The cost of this work was agreed to be £42,000.

The original access was 179m long in total from the junction with the A556 to the entrance to the Cheshire Lounge carpark. The new access is 750m in length from the junction with the A56 to the same point. Since it is intended that the new restaurant will be developed a little to the north of the Cheshire Lounge site, visitors will not need to travel the whole of the new access to reach the restaurant car park. From the 90^o bend at the northern end of the access the point of entry to the proposed new carpark is a distance of 420m along a single straight section of the newly constructed route. On leaving the same carpark by its more southerly exit the straight stretch of road runs for 485m before reaching the bend. Whether any traffic calming is required on this stretch of road was one of the issues which divided the highways experts.

The original access was lit by a single streetlight located at the junction with the A556 and by a further streetlight at the end of a downward slope where the road levelled out as it approached the pub’s carpark. Based on personal injury collision data the experts agreed that the original access presented no underlying safety issues, although Mr Cooper had some concerns about the arrangements for entering and leaving the site, especially for traffic coming from the north which was required to cross the opposite carriageway. The new access has been provided with a single streetlight at the new junction with the A56 after the Bowdon roundabout but no other lighting for the remainder of the route to the site. The need for additional lighting was a further point of contention between the experts.

The original access had signs indicating the left turn and private signage advertising the presence of the Cheshire Lounge, probably on both sides of the carriageway. No signage has yet been provided to the site although private signage directs traffic to the construction compound. The experts disagreed on the extent to which signage would be required to accommodate the new restaurant.

The experts did agree that the original access would have been capable of safely supporting the proposed re-development of the Cheshire Lounge site. The lay out for traffic travelling from the north may not have been ideal, but the absence of any data indicating that accidents had occurred (notwithstanding that on occasion the site was heavily used, as when car boot sales took place) seems to us to justify the expert’s assessment that the original access was both safe and sufficient. It did not materially reduce the value of the site as a development site and nor has the provision of the new access materially enhanced it.

The principal disagreement between the experts was the extent to which the new access represented a safety hazard because some vehicles would be likely to travel at unsafe speeds over the long, straight stretch of road to and from the site. Mr Jones believed that in the absence of some form of traffic calming, drivers would exceed the 20mph design speed of the new route (possibly by a considerable amount) and that this presented a hazard to pedestrians, cyclists and contractors undertaking maintenance or inspection of the various barriers, gantries, ducts and other installations serving the adjoining A556.

Mr Cooper’s view was that aspects of the current design could be relied on to maintain safe traffic speeds. The two 90^o bends at the northern end of the access would restrict speeds as vehicles entered and left that area. The absence of defined kerbs, the absence of a central white line or other formal road markings and the presence of vehicles coming in the opposite direction and pedestrians on the carriageway would all be likely to cause drivers to proceed with caution. Finally, Mr Cooper thought that it was reasonably to be expected that drivers would comply with the Highway Code and would not travel at inappropriate speeds.

Having visited the site we found Mr Cooper’s evidence on this point impossible to accept. The proposition that drivers could reasonably be expected to comply with the Highway Code seemed to us to be a surprising starting point when considering what safety measures were appropriate to protect other road users. In his oral evidence Mr Cooper acknowledged that risks to the safety of pedestrians from those who might be tempted by the layout of a road to drive too fast was a legitimate concern. We have no doubt that some drivers arriving at or leaving the site and finding a straight stretch of relatively wide and relatively well-maintained carriageway in front of them for almost 500m would find the temptation to drive at speeds in excess of 20mph irresistible.

On the other hand, we think the level of pedestrian traffic on the new access is likely to be very low. Although the route is also a public footpath, the site is a significant distance from the nearest settlement, Bowdon, and its proximity to the A556 and M56 are likely to make it an unattractive choice for recreational walkers. It is also unlikely that many staff employed at the new Cheshire Lounge would arrive or depart on foot (although a few might and others might cycle); the traffic report supporting the claimant’s application for planning permission suggested that staff would be brought to the site by minibus.

The new access is wide enough for two vehicles to pass each other, but to do so they would need to slow down to a safe speed. Pedestrians or contactors working beside the road would be visible in daylight from a sufficient distance to enable drivers to take account of their presence, and ample verges on both sides would enable pedestrians to step off the carriageway temporarily to avoid any risk of being struck by a fast-moving vehicle. It is possible that highway maintenance contractors might park on the carriageway and create a localised obstruction, but we think it more likely that they would pull over onto the verges, in part at least. In any event, the presence of a parked vehicle would be obvious to an approaching motorist from a significant distance.

In short, therefore, while we agree with Mr Jones that it is likely that without some form of traffic calming some motorists will drive at excessive speeds along the new access, the risk which that behaviour will present is a relatively low one and that the appropriate remedial response is correspondingly modest.

Mr Jones suggested a traffic calming scheme which it was agreed would cost in the order of £160,000, including lighting. It involved the creation of regular chicanes formed by built out landscape features at intervals of no more than 70m along the full length of the straight section of the new access. Mr Cooper did not accept that this elaborate and expensive scheme was necessary nor that additional measures including the installation of kerbs and road markings was necessary or appropriate. If any measures were necessary Mr Cooper considered that simple speed bumps (pvc flat top ramps or a more permanent “raised table” design) which could be provided at six locations for a cost of either £4,000 or £5,500 depending on the style chosen.

Mr Jones’ proposed speed attenuation scheme appeared to us to be designed simply to justify the highest possible price tag. There is a distinct possibility, as Mr Cooper pointed out, that the “build-outs” he proposed are too close together to be passable by even a standard 7m delivery lorry. We think it very unlikely that they would be capable of being negotiated by coaches of the length that could be expected to arrive at the site if, as we understand is the claimant’s intention, it is developed as a function venue. Mr Jones acknowledged that the alternative scheme suggested by Mr Cooper, involving six speed bumps, would be sufficient to render the new access safe for pedestrians and other vulnerable road users and in those circumstances, we do not think any sensible developer would countenance his over specified alternative.

The one point which Mr Jones did make which appeared to us to be worthy of further consideration was in relation to the need for lighting of the new access. He suggested that even if the only form of speed attenuation was a series of speed bumps, these would require artificial lighting. Mr Cooper disagreed and suggested that reflective markings on the obstacles themselves would be sufficient to highlight them to drivers arriving after dark. An extract from the Manual for Streets appeared to support Mr Jones’ suggestion that the provision of artificial lighting would be good practice in areas where traffic was expected to exceed 20mph, but there was disagreement about the application of this guidance in semi-rural, rather than residential, environments.

We doubt that a developer would envisage the need to provide artificial lighting along the whole length of the new access, but no less ambitious lighting arrangement was costed in the evidence. National Highways has undertaken to impose a speed limit of 20mph, and we are therefore minded to prefer Mr Cooper’s evidence on this issue. The cost of additional lighting and the cost of construction of speed bumps were treated as separate issues, but we determine that appropriate traffic calming, including reflective markings, could be provided at the higher of Mr Cooper’s alternative figures, namely, £5,500.

The only other matter of substance on which Mr Jones and Mr Cooper disagreed was the provision of additional signage to the site to take account of the new access. The site can now only be reached by following a comparatively complex route involving two roundabouts (when approaching from the north) and it would undoubtedly require more signs than the two formerly provided on either side of the A556 to indicate the original access. Mr Jones’ suggestion that 15 new signs would be required, at a cost of £36,000, is excessive and it is also likely that the new restaurant business would have wished to provide additional signage in any event. For these reasons we again prefer Mr Cooper’s allowance of £7,500.

Finally on this aspect of the claim we should add that during submissions Mr Booth clarified that the allowance of 10% made by Mr Kershaw when assessing the effect of the new access on the value of the site for a public house or restaurant was not intended to take account of the need for any improvements but was on account of the length of the new route and its lack of prominence, which would be seen as disadvantageous by the market. There is therefore no overlap between the injurious affection claim and the cost of works to the access itself.