[2025] UKUT 0213 (LC)

As is often the case when someone’s domestic property is concerned, Mr Nelson and his family, understandably, simply want to be paid the compensation they feel they are owed, and then get on with their lives. He said the mental toll the matter has had on his family, coupled with the time and resources it has taken, has been completely draining.

Mr Nelson has fought his case with admirable tenacity, exploiting to date all avenues of appeal open to him, including a judicial review of the Planning Inspector’s recommendation to the Secretary of State, and an unsuccessful appeal to the Court of Appeal against a Directions Order of the Tribunal. He has submitted an extensive volume of evidence; I mean no disrespect to him to observe that this was of varying degrees of relevance to the legal basis of his claim, and by no means do I refer to all of it in this decision. He simply wanted to make sure his case had been fully made out. In the paragraphs that follow I summarise the main points which are relevant. As I will explain later, given the amount of common ground between the valuation experts, at the heart of the dispute on two of the three heads of claim is valuation principle, rather than quantum, and Mr Nelson’s evidence doesn’t really influence that debate.

Mr Nelson said that when he viewed Dale House prior to purchase, he noticed the apparatus on site. He didn’t give it much thought, focussing on the building itself. Soon after purchase, he instructed an architect to make a planning application (PP1) which was refused by the local planning authority, Test Valley Borough Council. Mr Nelson told me that this was based on the appearance of the proposed building from the front, and the effect on the street scene of a proposed garage building and removal of a hedge.

His Architect made a subsequent application in early May 2021, which was registered under code 21/01361/FULLN (‘PP2’). Planning permission was granted on 30 June 2021. It was to extend the existing building to form a large six-bedroomed house. Mr Nelson said that he then carried out a tender process to instruct a builder, appointing one that winter. In the Spring of 2022, at a pre-start meeting, he said that the builder raised the issue of the apparatus. Mr Nelson contacted SEPD, who he said told him that the line could be ‘shrouded’ (the live lines covered in an insulating material), while construction took place, and beyond. He said that this advice turned out to be erroneous - the shrouding was booked in, but he said when SEPD’s operatives came to Dale House, they said the work could not be done (SEPD dispute that version of events, but nothing turns on this).

Mr Nelson said that the existing house was in poor repair, with various leaks, damp and defective heating. This had an effect on his family, with three of them contracting pneumonia. The house was badly insulated, and heating bills were spiralling. Discussions about moving the apparatus came to nothing. In early November 2022, two things happened. Mr Nelson served notice on SEPD seeking the removal of the apparatus, and he made a further planning application for a smaller building (‘PP3’), registered by the planning authority on 3 November 2022 under code 22/02868/FULLN. Planning permission was granted on 9 December 2022, but by this point, SEPD had made an application for a necessary wayleave (the Planning Inspector records this having been made on 2December). So while Mr Nelson was keen to proceed with improving and extending the house, he did not know which planning consent he could implement. He said he was in limbo. So he asked his builders to install the substructure for PP2, allowing him the option of either PP2 or PP3 (which shared the same footprint).

The wayleave application was heard by the Inspector on 25 and 26 April 2023, and his decision to recommend the granting of a Necessary Wayleave was in his report dated 17 May 2023. He noted in his decision that at the time of his site visit on 26 April, works to implement PP3 were underway. The 15 year Wayleave was granted on 7 July 2023. In his evidence, Mr Nelson referred to various parts of the Wayleave agreement, but the Tribunal has no jurisdiction over performance or otherwise of the terms of the agreement – we can only determine compensation under the Act. Mr Nelson said that by being deprived of the opportunity to build out PP2, he has lost a guest bedroom for family or for a live in nanny to help care for his autistic son. He has ‘lost’ floor area, and the valuation experts have agreed the effect of that in terms of market value.

At its closest point to the house (‘the pinch point’) it is agreed that the electricity line is 3.87m away, and at maximum sag, this reduces to 3.819m. Mr Nelson says that this is too close to enable him to either carry out roofing work to the original roof to make it watertight and energy efficient, and is too close to enable him to safely clear his gutters which, he says, regularly fill with leaves and debris causing damp and maintenance issues. The only way of doing this safely is to have SEPD ‘power down’ the line. A previous power down, of one month, in July 2023, was not sufficient to enable all of the required work to be done to the rear roof. Much of the work to the remainder of the property was able to be done, for instance to the front section which was in the order of 5m away from the electricity line.

During the shutdown period, the area of the roof which was worked on was that to the front left hand corner, further away from the line than the rear left area which was nearer to the pinch point. Mr Nelson said this was because the front section was open to the weather. By the time the shut down had finished, limited work had been carried out to the area nearer to the line, leaving it without total refurbishment; the tiles have been re-bedded, but the sub-structure was not adequately replaced in the time available, making it more likely to leak in the future. He accepted that at the point the majority of work under PP3 had been completed, it would be unlikely that he would have knocked that new work down and built out PP2, had that been an option.

Mr Nelson said that for basic maintenance, he made a further shut down request of one month, which SEPD rejected. He said that this month was in effect only 8 days – four weekends – to allow him to clear the gutters, and he needed to build in some allowance for weather conditions. Mr Smith (SEPD’s previous valuation expert, now retired) had suggested in his expert report some alternative measures – netting, vacuuming out, etc – but he accepted in that report that he wasn’t a guttering expert, and Mr Nelson rejected that advice, partly because one of the firms which Mr Smith had suggested might help him, didn’t exist. He hadn’t cleaned his gutters out since 2023 (and during my site inspection I noticed debris in them). Mr Nelson said that he wasn’t prepared to risk his life, nor ask others to risk theirs, to clean the gutters out while the lines are live. He included evidence of where people had been severely injured by ‘arcing’ from high voltage lines, and a letter purporting to be from a window cleaner, who would not work on that side of the house owing to the presence of the apparatus.

Mr Goulding has been employed by SEPD for around 20 years; for the last three as an Opex Portfolio Investment Manager (Western Regions), and before that in a variety of other roles. He is also a ‘11kV Senior Authorised Person’ (‘SAP’) which means he is authorised to issue safety documents and set authorised staff to work on the company’s 11kV networks.

Mr Goulding said that the risk of ‘arcing’ from a 11kV line was within about 300mm from the line, depending on weather conditions. His own contractors considered a safe distance to be 1.1m, but members of the public should observe a 3m safety zone.

Using laser scanning, SEPD had records of measurements from the line to Dale House. Mr Goulding said that at the pinch point, the line was 3.87 m to the gutter of the house, but 3.81m allowing for sag (the effect of wind which can move the line by 45 degrees). To the apex of PP3 is around 4 metres. The pole is about 3.7m from the property’s wall, at which point the conducting line is 5m from the gutter, and just over 6m to the apex of the roof. At the front of the property, the line is about 5m horizontally, and about 8m to the guttering.

Mr Nelson’s contractors, Dale Construction, had drawn up a risk assessment before commencing the extension to Dale House, in which they specified that no work would be carried out ‘within 4.5m of any live 11kv cables. Due to potential or [sic] arcing’. Mr Goulding said that work could safely be carried out if the 3m distance was observed. He did not consider there was a risk of ‘arcing’ when clearing the guttering at Dale House, which was outside this zone.

Mr Goulding said that he refused Mr Nelson’s request for a shutdown in May for two reasons. First, in his view, work to clear the guttering could be carried out without the need to shut down the line if the safety measures of which he had made Mr Nelson aware were observed; secondly, because the 2023 shutdown granted to Mr Nelson, by putting extra strain on the secondary network, made SEPD at risk of failing in its obligation to maintain a supply to all customers.

Mr Goulding said that SEDC had no record of any requests from any customer for an isolation/shutdown for gutter clearing – at Dale House or anywhere else.