A Grantor v A Grantee
[2023] UKUT 23 (LC)
Graham William Kitchen v Kent County Council
19 November 2024
[2024] UKUT 370 (LC)
Upper Tribunal
A homeowner sued the council after a new school's sports field lowered his property value. The court decided that, since the property value loss was similar to situations where the law already allows for awarding legal costs, the homeowner could also receive costs if he wins.
Key Facts
- •The Upper Tribunal (Lands Chamber) considered whether it has jurisdiction to award costs in a reference under section 204 of the Housing and Planning Act 2016.
- •The reference concerned compensation for injurious affection due to the construction of floodlit sports pitches on land subject to restrictive covenants overridden by section 203 of the 2016 Act.
- •The Tribunal's power to award costs is governed by rule 10 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010.
- •The key legal question was whether the compensation under section 204 falls under the definition of 'injurious affection' in rule 10(6)(b).
Legal Principles
The Tribunal may make a costs order under rule 10 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, but only in specific circumstances, including proceedings for 'injurious affection of land'.
Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, rule 10
'Injurious affection' means damage which would have been wrongful but for statutory powers, requiring the claimant to show they would have had an action in damages for nuisance without the statute. Compensation is only for damage to the claimant's land or interest in land.
Wildtree Hotels Ltd v Harrow LBC [2001] 2 AC 1 (Lord Hoffmann)
Compensation under section 204 of the 2016 Act is calculated on the same basis as compensation under sections 7 and 10 of the Compulsory Purchase Act 1965, which includes compensation for injurious affection.
Housing and Planning Act 2016, section 204(2)
Outcomes
The Tribunal has jurisdiction to award costs in this case.
Proceedings under section 204 are considered proceedings for compensation for injurious affection, aligning with rule 10(6)(b) which allows for costs awards in such proceedings. The compensation calculation mirrors that of injurious affection, and denying costs would be irrational given the similar effects of section 204 and section 84 of the Law of Property Act 1925 (where costs jurisdiction exists).