Graham William Kitchen v Kent County Council

Proceedings to determine compensation under section 204 of the Housing and Planning Act 2016 are proceedings for compensation for injurious affection of land. The Upper Tribunal therefore has jurisdiction under rule 10(6)(b) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 to award costs. This follows even though the statutory compensation is calculated on the same basis as compensation under sections 7 and 10 of the Compulsory Purchase Act 1965, rather than arising from land being compulsorily acquired. The relevant question is whether the claimant’s land or interest in land has been adversely affected by works carried out elsewhere and compensation is assessed by reference to the resulting diminution in value.

The claimant referred a compensation dispute to the Upper Tribunal under section 204 of the Housing and Planning Act 2016. He alleged that the value of his home had been diminished by the construction of floodlit sports pitches on neighbouring land, where restrictive covenants had been overridden under section 203.

The respondent raised, as a preliminary issue, whether the Tribunal had jurisdiction to award costs. The parties made written submissions. The central question was whether a section 204 reference fell within rule 10(6)(b) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, concerning proceedings for compensation for injurious affection of land.

1. Jurisdiction and outcome. The Tribunal held that proceedings under section 204 of the Housing and Planning Act 2016 are proceedings for compensation for injurious affection of land. It therefore had jurisdiction under rule 10(6)(b) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 to award costs. This was determined as a preliminary issue.
2. Meaning of injurious affection. The Tribunal relied on Wildtree Hotels Ltd v Harrow LBC [2001] 2 AC 1, where compensation for injurious affection was described as compensation for damage which would have been wrongful without statutory protection, including damage to the claimant’s land or interest in land. The modern law treats the concept as compensation for injury to land adversely affected by works carried out elsewhere.
3. Application to section 204. Section 204(2) provides that compensation for interference with a relevant right or interest, or breach of a restriction authorised by section 203, is calculated on the same basis as compensation under sections 7 and 10 of the Compulsory Purchase Act 1965. Section 10 concerns injurious affection. The fact that no land was taken did not prevent the claim from falling within that category.
4. Relevant authorities and consistency. The Tribunal found Midtown Ltd v City of London Real Property Company Ltd [2005] EWHC 33 (Ch) particularly persuasive because it treated compensation as assessed as if the relevant rights had been compulsorily acquired, by reference to diminution in value. It considered that denying costs where compensation was assessed on the same basis as injurious affection would be irrational, especially because rule 10(6)(c) expressly permits costs in proceedings under section 84 of the Law of Property Act 1925, where the practical effect may be similar.
5. The Tribunal did not need to decide the claimant’s wider arguments. The costs jurisdiction was established by the proper classification of the section 204 proceedings.