Alfred Yazdiha & Anor v London Borough of Brent

Introduction

1. This is a decision to determine the compensation payable to Mr Alfred Yazdiha and Mr Mohammad Syed Fatemy (“the claimants”) by the London Borough of Brent (“the Council”) following the compulsory acquisition of the leasehold interest in Flat 91, Gloucester House, Cambridge Road, Kilburn NW6 5XJ (“the property”) under the London Borough of Brent (South Kilburn Regeneration Phase 2b – Gloucester House and Durham Court) Compulsory Purchase Order 2014 (“the CPO”).

2. The claimants, who are litigants in person and were thus unrepresented, issued their Notice of Reference on 15 March 2017, and said in their statement of case that at the agreed valuation date of 19 January 2016, the property was worth £400,000 to which must be added a basic loss payment of £30,000 (7.5% of the value) under ss.33 A and 33C of the Land Compensation Act 1973 (“ the 1973 Act ”), together with various disturbance costs amounting to £57,094, bringing the total to £487,094.

3. The Council was represented by Ms Angela Piears of counsel, who called Mrs Rachel Covill BSc (Hons) MRICS, a Principal Surveyor at the Bromley office of District Valuer Services, Property Specialists for the Public Sector. She valued the property at £275,000 and argued that whilst the claimants’ entitlement to a basic loss payment was not in issue, compensation for disturbance should amount to no more than £10,000. Mr Denish Patel, the Council’s Case Manager with responsibility for this matter, was also called to give evidence of fact. Facts

4. Gloucester House is an 18-storey residential tower block of non-traditional “Large Panel System” construction with concrete panels to the elevations on a reinforced concrete Bison frame supported on raft foundations, originally built in about 1960 as council flats on the South Kilburn Estate. There are 17 floors containing a total of 169 flats with the ground floor, street level, consists of garaging. The area is predominately residential in nature, with a mixture of traditional properties and large swathes of local authority built medium and high-rise blocks of flats. Kilburn High Road mainline railway station is 0.5km to the north-east and Kilburn Park underground (Bakerloo Line) is about 0.25 km to the north.

5. No. 91 is a ninth storey self-contained flat located on the west side of Gloucester House and contains entrance hall, living room with door to an enclosed balcony, one double bedroom, kitchen and bathroom. The flat has a Gross Internal Floor Area (“GIA”) of 55 m 2 (592 ft 2 ) and an Effective Floor Area of 39 m 2 (420 ft 2 ). All floors to the block are accessed by two passenger lifts (from first-floor level) serving communal halls and passageways.

6. The claimants held the property under the terms of a lease for 125 years which commenced on 10 September 1990 at an annual ground rent of £10. There were thus approximately 99 years unexpired at the valuation date.

7. The CPO was made on 9 May 2014 (and subsequently confirmed by the Secretary of State) as part of the Council’s objective to assemble sufficient land interests to facilitate and implement a major phased housing-led regeneration of the South Kilburn Estate in accordance with the South Kilburn Master Plan. By a General Vesting Declaration made on 17 December 2015, and served on 21 December 2015, the property vested in the Council on 19 January 2016, that being the valuation date for the purposes of this reference. The claimants’ claim for compensation was served on the Council on that date, assessing the value of the property at £320,000 and claiming that sum together with a £24,000 basic loss payment and a further £23,200 of disturbance costs (total £367,200).

8. Negotiations both before and after the vesting date having failed to achieve a result, the 1 st claimant signed and returned to the Council, on 7 September 2016, a form entitled ‘Receipt for Advance Payment of Compensation’ (under section 52(3) of the 1973 Act ) and giving details of his bank account to facilitate the transfer of funds. Whereas that form’s title suggests it was a receipt for payment it was, in fact no such thing. It was a document whereby the claimants state their agreement to the sums being offered and provide the further information sought. Only following receipt of that acknowledgement and the required information were the necessary steps then taken by the Council to facilitate a payment being made. On being advised, following completion of the form, that he was required to appoint a solicitor to whom the payment could be made, Mr Yazdiha instructed Perrin Myddleton, Solicitors, who then made formal application on 25 October 2016. That payment, of £246,037.50 (being 90% of the Council’s then estimate of the value of the property in the sum of £245,000, a Basic Loss payment of £18,375 and its estimate of £10,000 as the owners’ costs entitlement), was transferred to the claimants’ solicitor’s account on 9 December 2016 and acknowledged as received on 12 December 2016.

9. Meanwhile, on 17 August 2016 the claimants completed a claim form for submission to the Barnet County Court Money Claims Centre, which was acknowledged by the court as served on 7 September 2016 (claim No. 72YM510). Damages were claimed from the Council, but not specifically itemised, in the sum of £400,000 together with £10,000 relating to the court fee and interest. The particulars of claim stated that no income had been received since the vesting date, and “due to the failure of the defendants to pay compensation …[the claimants]… have been unable to locate and purchase a suitable replacement property for which to provide an income to themselves.” It was explained, in paragraph 11 that: “Despite repeated written requests by the Claimant and deadlines given by the Claimant and written promises by the Defendant’s authorised representatives to the Claimants the Defendant have (sic) failed to expeditiously and with any reasonable speed agree a figure of compensation and prevaricated negotiations as regards the agreed compensation to be paid to the Complainant.”

10. The Council issued a defence on 23 September 2016, disputing the claim generally, advising that the claimants had signed the receipt for an advance payment and pointing out that, in any event, the County Court did not have jurisdiction to deal with the matter. On 20 October 2016, it made an application for transfer of the claim to this Tribunal because under section 1 of the Land Compensation Act 1961 (“ the 1961 Act ”), it was the correct forum for determination of the matter.

11. On 6 February 2017, District Judge Marin sitting in Barnet County Court, and having heard from the claimants in person and from the solicitor for the Council, ordered that: “(1) This case shall be transferred to the Upper Tribunal (Lands Chamber) for determination including the issue of who should pay the costs of the proceedings in the County Court. (2) Costs reserved to the Tribunal.”