Deryn O'Rourke v Keuper Gas Storage Limited

Where an acquiring authority proposes to take rights over part of a house, it may resist a blight notice if it proves that the rights can be acquired without material detriment to the remainder. The assessment considers the project as a whole and the realistic exercise of the rights. Material detriment requires a significant reduction in the property’s usefulness or value.

Under Town and Country Planning Act 1990, a claimant relying on inability to sell must prove as a fact that blight, rather than other market factors, prevented a sale except at a substantially reduced price. Comparable sales and reliable evidence of purchaser behaviour may show that the project did not cause the failure to sell.

The claimant owned Brownhayes Farm and its private access driveway. The respondent promoted an underground gas-storage project authorised by the Keuper Underground Gas Storage Facility Order 2017. It proposed to acquire rights over part of the driveway for access, infrastructure and security measures.

The claimant served a blight notice under section 150(1) of the Town and Country Planning Act 1990. The respondent objected by counter-notice. The reference concerned whether the rights and the project would cause material detriment to the property under section 151(4)(c), and whether the claimant had been unable to sell because of blight under section 151(4)(g).

1. Reference dismissed. The respondent established its objection under section 151(4)(c) of the Town and Country Planning Act 1990. The claimant also failed to establish the factual requirements of section 151(4)(g).

2. The driveway was properly treated as part of the claimant’s house rather than as park or garden. That conclusion was consistent with Caledonian Railway Co. v Turcan [1898] AC 256. In any event, the Tribunal considered that the outcome would be the same under either statutory formulation.

3. Material detriment had to be assessed by reference to the project as a whole, pursuant to section 58 of the Land Compensation Act 1973, and to the realistic exercise of the rights. It would arise only if the property became less useful or less valuable to a significant degree. The screened wellhead compounds, improved driveway, uncertain but avoidable location of any gate, and modest operational traffic did not meet that threshold. Construction disturbance, traffic and temporary diversions were intermittent, transient and modest in their practical effect.

4. The Tribunal accepted that a grantee of a right of way may in principle improve the way for its use, as stated in Newcommen v Coulson (1877) 5 Ch.D. 133. It was nevertheless unnecessary to determine the scope of the respondent’s existing rights, because the proposed new rights caused no material detriment even when those existing rights were disregarded.

5. On section 151(4)(g), the claimant had to show that blight caused an inability to sell except at a substantially lower price. The sale of the adjoining Oak House at an undiscounted market value, together with the inadequate and untested evidence concerning prospective purchasers, showed that the project was not the cause of the failure to sell. Brownhayes Farm had instead been marketed significantly above its unblighted value and in a manner unattractive both to residential purchasers and developers.

Upper Tribunal (Lands Chamber): The claimant served a blight notice on 10 November 2016. The respondent gave a counter-notice on 5 January 2017, and the claimant referred the dispute to the Tribunal on 3 February 2017. The Tribunal dismissed the reference.