Optical Express (Southern) Ltd v Birmingham City Council, Court of Appeal - Lands Tribunal, April 11, 2005, [2005] EWLands ACQ_109_2002

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Optical Express (Southern) Ltd v Birmingham City Council, Court of Appeal - Lands Tribunal, April 11, 2005, [2005] EWLands ACQ_109_2002

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© CROWN COPYRIGHT 2005

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ACQ/109/2002

LANDS TRIBUNAL ACT 1949

COMPENSATION - compulsory acquisition - disturbance - leasehold shop- effect of scheme - loss of profits - date at which loss of future profits to be assessed - method of valuation - compensation of £570,920 awarded

IN THE MATTER OF A NOTICE OF REFERENCE

BETWEEN OPTICAL EXPRESS (SOUTHERN) LIMITED Claimants

and

BIRMINGHAM CITY COUNCIL Acquiring

Authority

Re: 14 Martineau Way

Birmingham

Before: P H Clarke FRICS

Sitting at Procession House, London EC4

on 22-26 November 2004 with closing submissions in writing

received between 13 and 30 December 2004

Charles George QC and Richard Glover instructed by Mills and Reeve, solicitors, for the claimants

Guy Roots QC and Alexander Booth instructed by Nabarro Nathanson, solicitors, for the acquiring authority

The following cases are referred to in this decision:-

Director of Buildings and Lands v Shun Fung Ironworks Limited [1995] 2 AC 111

Waters v Welsh Development Agency [2004 1 WLR 1304

Pointe Gourde Quarrying and Transport Co Limited v Sub-Intendent of Crown Lands [1947] AC 565

Melwood Units Pty Limited v Commissioner of Main Roads [1979] AC 426

Afzal v Rochdale Metropolitan Borough Council [1980] RVR 165

Horn v Sunderland Corporation [1941] 2 KB 26

Bwllfa and Merthyr Dare Steam Collieries (1891) Limited v Pontypridd Waterworks Co [1903] AC 426

Reed Employment Limited v London Transport Executive [1978] RVR 53

W Rought Limited v West Suffolk County Council [1955] 2 QB 338

Festiniog Railway Co v Central Electricity Generating Board [1971] RVR 582

Birmingham Corporation v West Midland Baptist (Trust) Association (Inc) [1970]AC 874

London County Council v Tobin (1959) 10 P & CR 79

Handley Limited v London Borough of Greenwich (1970) 21 P & CR 644

Livingstone v Rawyards Coal Co (1880) 5 App Cas 25

Hughes v Doncaster Metropolitan Borough Council [1991] 1 AC 382

The following cases were also cited in argument:-

Halil v Lambeth London Borough Council [2001] RVR 181

Remnant v London County Council (1952) 3 P & CR 18

Zarraga v Newcastle-upon Tyne Corporation (1968) 19 P & CR 609

W Clibbett Limited v Avon County Council [1976] RVR 131

Aslam v South Bedfordshire District Council [2000] RVR 121 (LT); [2001] RVR 65 (CA); [2002] RVR 16 (CA)

Reynolds v Manchester City Council [1981] 1 EGLR 167

Geest plc v Lansiquot [2002] 1 WLR 3111

Ryde International plc v London Regional Transport [2004] RVR 60

DECISION

1. This is a reference to determine the compensation payable for the compulsory acquisition of a leasehold shop in the centre of Birmingham.

2. Charles George QC and Richard Glover appeared for the claimants and called: (i) David Charles Moulsdale, Chairman and Chief Executive of DCM (Optical Holdings) Limited and subsidiary companies, including Optical Express (Southern) Limited; (ii) John Webber BSc MRICS, a director and shareholder of Colliers Conrad Ritblat Erdman, chartered surveyors of Birmingham; and (iii) Sara Fowler BA FCA MAE, a partner in Ernst and Young's Forensic Services Group in Birmingham.

3. Guy Roots QC and Alexander Booth appeared for the acquiring authority, Birmingham City Council (the Council), and called: (i) Simon Armstrong MRICS, a Development Manager of Land Securities Plc in their London office; (ii) Anthony M Chase FRICS, a partner in the London Office of Gerald Eve, chartered surveyors; and (iii) Jonathan Guy Anthony Phillips MA chartered accountant, partner Forensic Services in the London office of PriceWaterhouseCoopers.

4. On 18 January 2005 I carried out an unaccompanied inspection of Martineau Place and the retail area in the centre of Birmingham, including Corporation Street, Bull Street, High Street, New Street, Martineau Phase 2, Cannon Street, Caxton Gate and the New Bull Ring.

FACTS

5. From a statement of agreed facts and the evidence I find the following facts.

6. The claimants, Optical Express (Southern) Limited (Optical Express), are a trading subsidiary of the group holding company, DCM (Optical Holdings) Limited. It is an optical retail business selling ophthalmic products to the general public. In January 1997 the Group purchased the share capital of Specialeyes Plc (with a change of name to Optical Express (Southern) Limited), and thereby acquired the leasehold interest in 14 Martineau Way, Birmingham (the subject property) and a nationwide chain of 65 optical retail outlets, formerly trading as Specialeyes. The Group as a whole currently trades from 144 Optical Express locations and 20 Eye Clinic locations throughout the United Kingdom. Optical Express are one of the five largest optical retailers in terms of branches and turnover. These five retailers are Specsavers, Boots, Vision Express, Dolland & Atchison and Optical Express, and commanded 43.6% of the market share in the year 2000.

7. 14 Martineau Way formed part of a 1960s shop and office development in the centre of Birmingham, on a site bounded by Cor...

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