[2024] UKUT 00316 (LC)

Given the comments I have made regarding Ms Bryan’s analysis of sales, all of which took place within the world where the road scheme existed, it is more likely that her valuation of the property at £406,000 reflects its actual value at the valuation date having regard to the existence of the scheme. Without a reliable no-scheme world figure against which to compare it I can do no more than consider the possible loss of value caused at the date of valuation by reference to how much more the property would have been worth without the scheme.

Mr Cooper justified a claim of 4% (of unaffected value) by reference to two other injurious affection claims agreed by him with the respondent for detached properties close to and affected by the road scheme, one at 1% and one at 7%. As Ms Bryan has pointed out, the circumstances at each of those properties was very different, and settlement evidence for other properties does not assist me in determining a claim under s.7, so I did not ask to be shown them during my inspection.

The new road was built some 50 metres further away from the property than the original and in Ms Bryan’s opinion the effect of noise on the property was therefore dramatically reduced, providing a benefit. Mr Cooper maintained that because the road was built on an embankment noise was still evident at the property and there was no benefit to be offset against factors causing depreciation. There is no empirical evidence to support either position.

The key issue in dispute between the parties regarding the claim for injurious affection is the extent to which the original access from the property onto the old A465 provided a valuable benefit which has been lost as a result of the scheme. Photographs from 2017 show that the surface of the track was partially metalled along its length and that there was a small layby at the exit into which a vehicle could pull before joining the inner of two lanes of eastward bound traffic on the main road. The sharp angle between the track and the road would only allow a vehicle to leave and head eastwards. To enter the track a vehicle would have had to be travelling westwards and to have waited to cross two lanes of eastward bound traffic. In summary, there were limitations on access to and exit from the track and the relatively steep incline, which remains unchanged, was a further limitation.

It was Ms Bryan’s opinion that replacement of the previous secondary means of access by an alternative right to use the hard surfaced PMA to gain access to the A465, albeit via a longer route requiring locked gates to be opened, had not caused a demonstrable loss in value of the property. If a vehicle such as an oil delivery tanker was unwilling or unable to use the main access from Forge Row, arrangements could made for it to gain access along the PMA, to turn in the new turning head and drive down to the property.

Mr Cooper said that before the scheme commercial vehicles, such as oil delivery tankers, preferred this as a means of access to the property, rather than the longer route round into Forge Row and over the small stone bridge. He said that this does not happen now because of the practical difficulties of getting up and out onto the PMA, having to turn in the hammer head and then navigate a series of gates to get to the exit. Moreover, walkers using the footpath along the PMA have often parked their cars outside the locked exit gate, thereby blocking access through it. He accepted that parking spaces have now been created opposite the locked gate which should alleviate this problem.

It is not disputed that the incline of the track as it rises up to the level of the old road is unchanged as a result of the scheme and, from my inspection, I believe it would always have been somewhat difficult for large heavy road vehicles to make an exit from it. However, for lighter vehicles, especially ones with the benefit of four wheel drive, the track would have been a useful alternative means of access to and from the property. There is a gate half way down, controlled by the owners, but otherwise it has no hindrances. By contrast, the new alternative means of access has a number of gates, with one or more padlocks, and it is not a short cut by comparison with the exit via Forge Row.

Ms Bryan commented that the sale of Riverside in 2022 appeared to have been at a very good price, unaffected by the same alteration to its alternative means of access. I accept that comment, but observe that Riverside is a small domestic property with only a right of access over the track rather than ownership of it. By contrast, the track is owned and controlled as part of the property, which has buildings suitable for small scale equestrian use and space for numerous vehicles to be parked in the yard, so more use of the alternative access would be expected.