[2025] UKUT 0213 (LC)

I can deal with Basis C in short order. First, I accept Mr Goulding’s evidence that it was possible to clear the gutters, even at the pinch point, without trespassing into the danger zone of proximity to the line. Mr Goulding’s evidence was persuasive, and was not in my view controverted by the documents which Mr Nelson submitted, based on news reports and AI. Secondly, and perhaps more importantly, for the first two years of the wayleave, following the original (and only) shutdown, no further shutdowns have been permitted, and the notional figure of £6,000 has not been incurred – Mr Nelson has incurred no loss to date, and in my view should not do so in the future. I reject Basis C as a head of claim.

That leaves Bases A and B, which I can take together, and which present an interesting principle of valuation. The valuation experts agree that PP3, as built out, would have a market value of £1,500,000, if there were no apparatus on site. They agree that the presence of the apparatus would reduce the value of the property by 2.5% - £37,500. As Mr Davies put it, this would be the effect on the view of a notional purchaser sitting at the entrance to the drive, noticing the apparatus. I should mention at this point that Mr Nelson very fairly accepted that he noticed the apparatus, but didn’t give it much thought, as he was concentrating on the property itself.

But as Ms Chorfi emphasised, the valuation exercise demands an assessment of any effect on value of the grant of the wayleave, for 15 years. The experts’ agreement (at least as far as Basis A is concerned) reflects that by capitalising for 15 years an annual equivalent of the freehold reduction in value. As Ms Chorfi noted in closing, that is perhaps a generous assessment given that at the valuation date of 7 July 2023, PP3 had not been fully implemented and the house was not complete, but since the experts have agreed that I do not depart from it.

Mr Nelson says that, but for the wayleave, he would have built PP2, and has been prevented from doing so. Ms Chorfi taxed him on that point, suggesting that at the valuation date he had already decided to abandon PP2, but I accept Mr Nelson’s evidence on this. The valuers have agreed a basis on which this can be calculated. There was some late suggestion from Mr Church, adopted by Ms Chorfi in questioning, that there would have been an alternative to PP2, by building more floorspace on parts of the building away from the pinch point and the apparatus, but that departs from the pleaded position and the valuers’ agreed statement.

The real issue in dispute is whether bases A and B are alternatives as Mr Church suggests? Or should they be aggregated, as Mr Davies says. Or is there a middle ground?

The agreed PP3 value is £1.5 million, without the apparatus present. Does that market value include an element to reflect the ability to implement PP2? Is there a ‘hope’ of being able to extend within that value? Mr Davies explained that the £53,500 reflects the extra value, over and above £1.5 million, of the ability to build out PP2, and I can envisage a purchaser adding what would be between 3 and 4% to reflect the ability to extend the PP3 house to create the PP2 house, for which there had been planning permission.

Without the apparatus, we have PP3, and the ability to alter to the more valuable PP2, but at a cost.

With the apparatus, we have PP3, less an agreed 2.5%. In my judgment, the figure to which the annual equivalent should be applied is the difference between the two.

The calculation becomes:

In my judgement, this figure represents Mr Nelson’s loss, under a hybrid of bases A and B, and I therefore determine £47,250 as compensation under paragraph 7 of schedule 4 to the Act.

This decision is final on all matters except costs, and a letter to the parties accompanies the decision with directions for submissions on costs.