[2024] UKUT 00316 (LC)

The principle of equivalence, which requires a claimant to be fully and fairly compensated for loss following compulsory acquisition, was reviewed in detail by Lord Nicholls in Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 11. He confirmed that compensation should cover disturbance loss as well as the market value of the land itself, provided that three conditions are satisfied. Firstly, there must be a causal connection between the acquisition and the loss in question. Secondly, the loss must not be too remote from the acquisition. Thirdly, the claimant must have complied with their duty to mitigate their loss. To quote Lord Nicholls (at page 6):

“The law expects those who claim compensation to behave reasonably. If a reasonable person in the position of the claimant would have taken steps to reduce the loss, and the claimant failed to do so, he cannot fairly expect to be compensated for the loss or the unreasonable part of it. Likewise if a reasonable person in the position of the claimant would not have incurred, or would not incur, the expenditure being claimed, fairness does not require that the authority should be responsible for such expenditure.”

The first of two claims for disturbance compensation on behalf of the claimant is for £1,580 spent on the cost of livery, away from the property, for her daughter’s thoroughbred horse, made necessary as a result of gates being left open and disturbance from blasting during the construction works. The full livery service was provided at Smugglers Run (now Smugglers Equestrian Centre) some 14 miles south near Manmoel. The evidence of this expenditure is five cheque stubs, with dates from 23 November 2015 to 23 November 2016, for amounts of £350, £350, £300, £300 and £280, totalling £1,580. The business that provided the service is no longer in existence and there are no records available from the new business to evidence receipt of the payments.

Ms Bryan has a file note from her predecessor dated 25 September 2017 in which the requirement for livery is noted but not agreed. She says she is unable to agree any reimbursement without better details of the service provided (e.g. length of time) and evidence of the expenditure.

I consider that the cost of a period of livery for a horse affected by disturbance from nearby construction in the early stages of the scheme does, in this case, meet the tests laid down in Shun Fung. Whilst there could be better evidence of the cost of that livery, I am satisfied that the expenditure was incurred and I award disturbance compensation at £1,580.

The second claim for disturbance compensation concerns the sum of £6,000 plus VAT estimated for the control of Japanese Knotweed (“JKW”) over a five year period. Mr Cooper says that he saw no evidence of JKW on the property during his inspections prior to the road scheme and notified the respondent as soon as it became evident in 2017. In his opinion it has spread into the property as a result of the construction works.

Ms Bryan has file notes from her predecessor that evidence discussions over Japanese Knotweed and a suggestion, without commitment, that three quotations should be obtained for the cost of control. Emails submitted in evidence show a quote obtained in August 2022 from Complete Weed Control for £695 per year (plus VAT) for three years. An update in January 2024 shows an increase to £834 per year (plus VAT) for the first three years with a conclusion that control could take longer than five years and estimating the total cost at £6,000 plus VAT. This is the amount claimed by the claimant.

Ms Bryan comments that the quotations do not include plans to show the location and extent of JKW and she does not have evidence that its presence on the property has resulted from the scheme.

Considering the three tests laid down in Shun Fung, whilst there is no hard evidence to establish the causal connection between the scheme and the JKW problem, I do not consider the claim to be too remote and I accept Mr Cooper’s observation as a professional adviser who has been involved with the property since before the scheme commenced. Delay of many years has potentially caused the problem to worsen and has undoubtedly caused the estimated cost of control to increase very significantly. Early agreement on the part of the respondent to undertake the treatment, or reimburse its cost, would have provided the best mitigation of loss.

As things stand now, the cost of treatment is estimated at £7,200. A prospective purchaser would take a negative view of the presence of JKW on the property, albeit in a field rather than a garden in proximity to buildings, and be likely to reduce their offer to account for the cost of treatment. I consider that the disturbance claim for the cost of JKW control is valid, and that the sum claimed would, in the alternative, manifest itself as additional loss under injurious affection. I therefore award compensation of £7,200 for this head of claim.

I determine the reference as follows, before statutory interest and professional fees: