Coventry v Lawrence: a general overview and the significance of planning decisions

Transcription

1 Coventry v Lawrence: a general overview and the significance of planning decisions Jonathan Wills This Note is intended to accompany the seminar given at Landmark Chambers on 7 May Introduction 1. In Coventry (t/a RDC Promotions) v Lawrence 1 [2014] UKSC 13; [2014] 2 W.L.R. 433, the Supreme Court has authoritatively laid down what might be considered the new law of nuisance and of the remedies which may be granted in the event of a successful claim. 2. This talk is in two parts. The first element of my role is to undertake an overview of the case with the principal aim of enabling those who have not had a chance to read the judgments in Coventry v Lawrence to understand and benefit from the more analytical discussions later in the seminar. 3. It is perhaps the court s re-evaluation of the principles governing the approach to be taken to remedies which will be of the broadest application in the future, and hence it is this aspect of the judgment which has been the subject of most commentary in the wake of the decision. Such commentary includes David Holland QC s talk on the continuing (in)applicability of the Shelfer principles, and by Tim Morshead QC on the proper measure of damages for nuisance. Accordingly, I shall not do any more than set out in fairly functional terms the decision of the court in these areas. 4. The second portion of this Note deals with the relevance of planning decisions to the court s assessment of a claim in private nuisance. 1 Also known as Lawrence and another v Fen Tigers Ltd and others or the Fen Tigers case. 1

2 (1) Overview of the case Factual background 5. The facts are set out by Lord Neuberger, giving the main judgment, at [7] to [15]. 6. Below is a brief chronology of material events: Date: Event: 1975 Planning permission is granted for the construction of a stadium on agricultural land near Mildenhall in Suffolk. The permission allowed use for speedway purposes for a period of ten years. The stadium was constructed The stadium starts to be used for stock car and banger racing, not permitted by planning permission The speedway planning permission is renewed on a permanent, albeit personal, basis An additional use of greyhound racing commences at the stadium A motocross track is constructed to the rear of the stadium pursuant to a one-year personal planning permission in respect of motocross events. (This permission is renewed from time to time thereafter, subject to conditions relating to times of use and noise levels.) 1997 A certificate of lawful existing use is granted 2 for specified numbers of stock car and banger racing events due to such use having become lawful by the passage of time Permanent planning permission is granted for motocross events, subject to conditions relating to times of use and noise levels. Jan 2006 The claimants move into an existing bungalow (called Fenland ), less than a kilometre from each of the stadium and the track, and half a mile from any other residence. 2 Under s. 191 Town and Country Planning Act

3 April 2006 The claimants begin to complain to the local authority in relation to noise from the track. Noise Abatement notices are served 3, requiring noise mitigation works to be carried out at the defendants land The noise mitigation works are carried out by this time The claimants bring a claim in the High Court in private nuisance against the defendants, various owners and operators connected with the alleged nuisance Fenland suffers a serious fire (and is not rebuilt prior to judgment). Judgment in the High Court 7. In 2011 following trial, Judge Richard Seymour QC (sitting as a deputy judge of the High Court) granted an injunction preventing activities producing noise above particular levels. 8. The Judge found that between 1975 and 2009 the stadium had been used for speedway racing numerous times each year save for six particular years between 1990 and The same applied for stock car racing save that there were only two years with no such events. Motocross had occurred to the full extent permitted by the permission. 9. Whilst recognising that a planning permission could not authorise the commission of a private law nuisance, the Judge held that a grant of planning permission could be such as to transform the character of a locality [64], but that it was critical to consider the nature of the planning permission. He went on to find that as the permissions were personal and permitted activities only intermittently, they could not be said to have altered the character of the locality. 10. The Judge held that the Defendants activities constituted a nuisance both before and after the mitigation works, but that it was possible to organise the activities of the track or stadium so as not to constitute a nuisance. 3 Under the Environmental Protection Act

4 11. He rejected an argument that a right had been acquired to commit a nuisance, because no such right could be acquired as a matter of law and because gaps in usage would be fatal to a prescriptive claim. 12. He granted an injunction by reference to levels of noise emitted at UK motor racing circuits, on which he had heard expert evidence. He suspended the effect of the order pending rebuilding of the bungalow. Judgment in the Court of Appeal 13. The Court of Appeal overturned the decision, holding that it had not been established that there was a nuisance. 14. It was held that the Judge had erred in holding that the actual use of the stadium and track, with planning permission or a certificate of lawful development, could not be taken into account when assessing the character of the locality for the purpose of determining whether an activity is a nuisance. 15. Although it was not necessary to consider the point, Lewison LJ expressed a provisional view that it was possible to obtain a right by prescription to commit what would otherwise be a nuisance. Issues for the Supreme Court 16. The key issues before the Supreme Court were: (i) (ii) (iii) Whether the right to emit noise can be acquired by long user, whether as an easement by prescription or otherwise; Whether the fact that a claimant came to the nuisance is capable of being a defence; Whether a defendant s activities are to be taken into account when assessing the character of the locality ; 4

5 (iv) (v) Whether and to what extent the existence of a planning permission is relevant to the question of private nuisance; As to remedies: when the court should grant an injunction to restrain private nuisance, and on what basis should the court calculate damages. Prescription 17. The court found that a right to create noise in a manner that would otherwise constitute a nuisance can be acquired by long user. The only analysis was that of Lord Neuberger, with whom the rest of their Lordships agreed. 18. Lord Neuberger did not think it mattered whether such a right was strictly an easement [32], observing in reliance on Pwllbach Colliery Co Ltd v Woodman 4 that if it was too indeterminate to be an easement it could nonetheless be the subject of a valid grant, and hence could be acquired by prescription or under the doctrine of lost modern grant. 19. However, he was inclined to the view that the right to emit a noise could indeed be an easement. In agreement with Lewison LJ s remarks in the court of appeal 5, he considered that the fact that a right was only exercisable at particular times did not prevent it from being an easement. 20. Lord Neuberger observed three possible problems which must be overcome by a person asserting such a right by prescription [36]: (i) (ii) The twenty-year period can only run whilst the noise amounts to a nuisance, since acquiescence of the owner is at the root of prescription and something which cannot be prevented by a servient owner cannot be the subject of such acquiescence; There may be difficulties in identifying the extent of the easement as the noise emitted will often have varied in intensity and frequency; 4 [1915] AC 634 at 649 per Lord Sumner. 5 [2012] 1 WLR 2127 at [88]. 5

6 (iii) There could be a problem in deciding how much, if any, more noise can be emitted than that which had been emitted during the twenty years. 21. He considered the first two of these to be practical problems, and that the third was similar to issues raised by rights of way. 22. On the facts of the case, it was held that the relevant periods of activity when no nuisance was caused were not sufficient to thwart the claim for prescription [140]. However, it was noted that it was not sufficient to demonstrate that the current activity had been ongoing for twenty years [143]. On the facts as found by the Judge, the Supreme Court considered that the claimants had not proven that a nuisance had been caused to Fenland for a period of more than twenty years [145]. Coming to the nuisance 23. Again the only substantive analysis was that of Lord Neuberger, with whom the rest of their Lordships agreed. It was held that where a claimant uses his property for the same purposes as his predecessors had done before the nuisance started, an argument that the claimant came to the nuisance does not constitute a defence. 24. Lord Neuberger [48] referred to Miller v Jackson 6 in which this principle was held to be well established. However, in that case, Lord Denning MR gave a memorable dissenting judgment in which he advocated balancing the rights of the defendant cricket club which had been playing at the same ground for some 70 years against a newcomer householder who had built a house on the edge of the cricket ground. 25. Avoiding having to approve or disapprove of Lord Denning s comments, Lord Neuberger held [51] that the law was clear at least in a case where the claimant uses her property for the same purpose as that for which it was used by her predecessors since before the nuisance started. He continued that there was much more room for argument [53] that a claimant who builds her property, or changes its use, after the defendant has started its activity, should not have the same rights to complain. It 6 [1977] QB 966 at

7 followed that it may well be a defence [58] in some circumstances for a defendant to contend that a claim should fail where a defendant s activity can only be argued to be a nuisance because of a change made by the claimant at her property. The locality: the relevance of the defendant s own activities 26. Lord Neuberger at [4] cited the classic dictum from Sturges v Bridgman 7 that whether something is a nuisance: is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances what would be a nuisance is Belgrave Square would not necessarily be so in Bermondsey. 27. It follows that an integral part of a court s function is to carry out an assessment of the locality as Lord Neuberger puts it [4]. This he described as a classic issue of fact or judgment for the judge [59]. 28. Lord Neuberger posited that the established pattern of uses may be a better description of what was to be assessed rather than the character of the locality [60]. 29. He considered that the correct approach was to ignore the activities to the extent that they constitute a nuisance [65]. Or to put it another way, the activities carried on by the defendant are to be considered, but only to an extent which would not cause a nuisance. This is so regardless of how long the defendant s activities have been going on for 8 [68]. If the defendant s activities cannot be carried out without constituting a nuisance, they are to be ignored in assessing character [74]. 30. Lord Neuberger recognised the obvious apparent circularity of this test, but held that ignoring the defendant s activities altogether may be unfair to a defendant [71]. Further, he considered that the court of appeal s approach would have been even more circular [73] and would cause there to be hardly any successful claims in nuisance. 7 (1879) 11 ChD 852 at 865, per Thesiger LJ. 8 Subject to the question of prescription of course [69]. 7

8 Relevance of planning permissions 31. This issue will be addressed in detail below. Remedy: injunction or damages? 32. As other more learned commentators are presenting more interesting talks on issues of remedy, I shall be extremely brief on these points. 33. Although an injunction was prima facie the remedy to which a successful claimant in nuisance is entitled, it was considered that the courts should be more flexible than has been shown in recent examples of granting injunctions following a slavish adherence to the Shelfer principles, which Lord Sumption in particular considered to be out of date [161]. It was wrong in principle to consider that damages should only be awarded in very exceptional circumstances (per Lord Neuberger at [119]). 34. Lord Neuberger [122] did not see rights to light cases as involving special rules in relation to this issue, although Lord Mance [167] and Lord Carnwath [247] did not share this view. 35. As to quantum of damages, Lord Neuberger considered it to be arguable that damages should not always be restricted to the diminution in value to the claimant s property, but should reflect the lost opportunity to enforce the claimant s rights [128]. (2) Significance of planning decisions 36. As this Note is produced in conjunction with a seminar for property solicitors who may not have particular background knowledge of planning matters, I set out below the basic principles of planning law which underpin any analysis of the relevance of planning permissions to questions of common law private nuisance. 8

9 Relevant provisions of planning law 37. Development of land requires planning permission (s. 57 Town and Country Planning Act 1990 ( TCPA 1990 )). The definition of development includes making a material change of use of land (s. 55 TCPA 1990). 38. In determining a planning application, a local planning authority ( LPA ) must take into account the provisions of the development plan and any other material considerations (s. 70(2) TCPA 1990). 39. What will be material will depend on the facts of each application. As regards planning applications for activities which are likely to generate noise (or other forms of potential pollution), it is likely that the impact of such noise on users of land in the vicinity of the application site will be a material consideration 40. The importance or weight to be attached to any particular material consideration will be a matter of planning judgment for the LPA (Tesco Stores Ltd v Secretary of State for the Environment 9 ). 41. Planning permission may be granted unconditionally or subject to conditions. Even a permission for simple development often has conditions attached, and a time limiting condition is implied by statute in all cases. This specifies the date by which the development must be begun. 42. The general rule is that a planning permission runs with the land, to use terminology with which property lawyers will be familiar. However, it is possible to grant planning permission subject to a condition which makes the development personal to a particular developer. Furthermore, so long as the conditions attached to a planning permission are adhered to, the general position is that a permission for a material change of use can be enjoyed on an indefinite basis. However, again, it is possible for a permission to be granted which is temporary. This is achieved by imposing a condition requiring the 9 [1995] 1 W.L.R. 759 per Lord Hoffman at

10 development to cease after a specified period (and often for the land to be restored to a particular state). 43. Both personal permissions and temporary permissions are the exception rather than the rule, and governmental guidance concerning the imposition of planning conditions makes clear that such permissions are only to be granted in certain circumstances. Indeed, as a general proposition, the House of Lords has decided 10 that conditions may only be imposed if they are (inter alia) reasonable and imposed for a planning purpose. Accordingly, a personal or a temporary permission should only be granted where there is a good reason which would prevent the grant of a permanent, non-personal permission. 44. Development without planning permission constitutes a breach of planning control, and may be the subject of enforcement action taken under the TCPA 1990 by the LPA. Such enforcement action may entail issuing an enforcement notice under s. 172 if the LPA considers it expedient to do so, having regard (inter alia) to the acceptability of the unlawful development in planning terms. If an enforcement notice is issued, it must specify (inter alia) the breach of planning control alleged (s. 173(1)), and the steps required to be taken by the LPA (s. 173(3)). The obvious step in relation to an acceptable and unlawful use of land would be to require that the activity cease. There are provisions for an appeal against an enforcement notice to the Secretary of State. 45. If a breach of planning control is continuously ongoing for a sufficient period of time, the relevant development can no longer be the subject of enforcement action (s. 171B) and is then expressly lawful by virtue of s. 191(2)(a) TCPA The relevant period after which such immunity accrues is ten years in relation to uses of land, save for use as a single dwelling house, which attracts a four year immunity period. Operational development (including building operations) attracts a four year immunity period. 46. A person may apply to the LPA for a certificate stating conclusively that an ongoing use of land is lawful in planning terms (either because such use has become immune from enforcement action or for any other reason). Such an application is for a certificate 10 In Newbury DC v Secretary of State for the Environment [1981] A.C

11 of lawful existing development under s. 191 TCPA These certificates are sometimes known as LDCs or CLEUDs. 47. A person may enter into an obligation by deed under s. 106 in a manner which binds his interest in the relevant land. Such an obligation may, for example, provide for the payment of money for infrastructure provision, or limit the use of the land in a particular way. Such obligations are enforceable by the LPA, may be unilateral deeds or multi-lateral agreements, and are local land charges (s 106(11)). They are an effective mechanism for rendering development acceptable where particular hurdles cannot practically or legally be overcome by conditions. 48. The starting point is that an LPA cannot authorise the commission of a private nuisance by granting planning permission for a use of land. This is well-established law, and clear from first principles. It was treated as a fundamental starting point in Coventry v Lawrence at all stages of the litigation. 49. The judgments revealed that planning decisions could be relevant in two ways: (A) to the character of the locality, and (B) to the question of remedy. (A) Relevance to the character of the locality 50. It was recognised in Gillingham BC v Medway (Chatham) Dock Co Ltd 11 that planning permission is not a licence to commit a nuisance, but the court held that a planning authority can, through its development plans and decisions, alter the character of a neighbourhood. 51. In the Court of Appeal in Coventry v Lawrence, Jackson LJ accepted at [59] that a defendant in a nuisance claim could not rely on a planning permission for a change of use of a very small piece of land. This was also the basis of the decision in Wheeler v JJ Saunders Ltd 12. In that case, Staughton LJ suggested that only a strategic planning 11 [1993] QB 343 at 359 per Buckley J. Lord Neuberger held that much of Buckley J s reasoning could not stand [99]. 12 [1996] Ch 19; see pp30 and

12 decisions affected by considerations of public interest would assist a defendant in a nuisance claim, whilst Peter Gibson LJ suggested that the reasoning in Gillingham could only apply in the case of a major development. 52. Lord Neuberger [87] held that the importance of a planning decision in a nuisance claim was not dependant on the size of the land to which the permission relates. He considered that according to the reasoning of Buckley J in Gillingham, a planning permission for a large area would have the practical effect of defeating any nuisance claim, and that the Court of Appeal in Coventry v Lawrence had effectively treated the existence of planning permission as being determinative of the claim [139] (in the defendants favour). 53. He was of the opinion that all the grant of planning permission did was to remove the bar on development which was imposed in the public interest by planning law [89]. It was wrong in principle for an LPA effectively to be able to deprive an owner of property rights without compensation when no provision of the planning legislation envisaged that [90], a point with which Lord Mance specifically agreed [165] (Lord Carnwath also considered that there should be a strong presumption against such deprivation [222]). An LPA is entitled to assume that a neighbour may enforce his private rights in a nuisance action, and should not be forced to take on the role of deciding on those rights [95]. The mere existence of planning permission was normally of no assistance to a defendant [94], and not normally a matter of much weight [138]. 54. However, Lord Neuberger [96] considered that planning permissions were not irrelevant as a matter of law, but that their evidential value (and the key point here is that they are only evidential in nature) will vary depending on the facts of each case. Lord Clarke essentially agreed with this [169]. 55. Lord Neuberger held that particular conditions in a planning permission which precisely stipulate what time periods or levels of noise were considered as acceptable by the LPA in view of the likely impact on others may be of real value [96]. (This author considers that the emphasis here is on the may ). Lord Mance also expressly 12

13 agreed regarding the possible relevance of conditions attached to planning permission [166]. 56. Lord Carnwath considered that this question was the most difficult problem raised by the appeal [191]. He reviewed the authorities in some detail ([199]-[216]), before observing that the cases demonstrate the wide variety of factual scenarios which exist and hence the danger of laying down general propositions [217]. He held that they suggest that a planning permission can be relevant in two ways: (i) (ii) It may provide evidence of the relative importance of the permitted activity as part of the pattern of uses in the area; and Where a permission or a s. 106 obligation includes a detailed, and carefully considered, framework of conditions governing acceptable limits, they may provide a useful starting point for the court. 57. As to the first of those, he considered [223] that in exceptional cases where there is a policy decision by the competent authority which leads to a fundamental change in the pattern of uses in the locality, that cannot sensibly be ignored by a court. In this regard he refers to Staughton LJ s use of the word strategic and Peter Gibson LJ s reference to major development which is permitted following public interest considerations. Lord Carnwath expressly differs from Lord Neuberger on this point, and considers that the reasoning in Gillingham can be supported. However, Lord Carnwath did not find that the facts of Gillingham were of relevance to the present case, as it was not argued, nor held, that the relevant planning permissions were strategic [232]. 58. As to the second point, he referred to the case of Watson 13 in which noise criteria proposed by a developer in a s. 106 supporting a planning permission were used by a judge, even though they were not the result of an objective assessment by a planning decision maker. However, he acknowledged that the present case was an example of a case where the relevant planning conditions were not of assistance to the court [227]. 13 Watson v Croft Promosport Ltd [2009] 3 All ER

14 59. Lord Sumption at [156] considered (claiming agreement with Lord Neuberger) that the existence of a planning permission will be of very limited relevance to the question of whether a use constitutes a nuisance. He emphasised the distinction between the public interest, which an LPA is seeking to uphold, and private rights. 60. The above largely relates to merits-based decisions to grant planning permission. What then is the relevance of a CLEUD? 61. Lord Neuberger held that the CLEUD was evidence which could have been taken into account [135], but that in this case it only stood as evidence of the period for which the relevant activities had been ongoing [136]. 62. It seems to this author that a CLEUD is likely to be of assistance to a defendant even more rarely than a planning permission, although in a different case a CLEUD may stand as evidence for different propositions. For example, the proposition that an extant planning permission allows a particular activity, or the proposition that parliament has seen fit to allow a particular change of use pursuant to a blanket grant of planning permission within the permitted development order (the Town and Country Planning (General Permitted Development) Order 1995). An example of this latter is the recently well-publicised amendment to that Order which allows a change of use from office use to residential use in certain circumstances 14. (B) Relevance to remedy 63. There are particularly strong reasons [157] for granting damages rather than an injunction where planning permission exists for an activity, says Lord Sumption, who even goes as far as saying In particular it may be that an injunction should as a matter of principle not be granted in respect of a use that has been granted planning permission [161]. This was by far the most radical approach amongst their Lordships. 14 See Class J of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995). 14

15 64. Planning powers do not exist to override private rights, Lord Sumption says [156]. This is true if one adds the caveat that such powers do not exist in the absence of compensation. 65. In fact, there are compulsory purchase powers in the TCPA 1990 for the purpose of achieving planning purposes (see s. 226), and the express power at s. 237 for an LPA to override private rights including easements once they have appropriated their own land for particular development purposes. See also s. 152 of the Planning Act 2008 to which Lord Carnwath makes reference at [196]. Whether Lord Sumption had these powers in mind or not, their existence is entirely consistent with the logic of his judgment. His first point [155] is that the impact of planning permission on liability for nuisance is closely connected to the issue of what remedies are available. In certain circumstances the TCPA 1990 allows private rights to be overridden in the public interest for the payment of compensation. One could say that this is entirely consistent with the idea that approval of an activity by an LPA upon the grant of planning permission in the public interest is highly relevant to whether the activity should be stopped by a court, or whether instead the payment of money would strike a better balance between private and public interest. 66. Lord Carnwath [246] was clear that the grant of planning permission could not give rise to any presumption that there should be no injunction. He did accept, however, that the nature of, and background to, a relevant planning permission may be an important factor in the court s assessment. Lord Mance [167] expressly agreed with Lord Carnwath in relation to these matters. 67. This author does not consider that Lord Neuberger s judgment can fairly be read as advocating any such presumption against an injunction. He held that the existence of a planning permission which permits (in planning law) an activity which is a nuisance can be a factor [125] in favour of refusing an injunction. However, one must bear in mind his emphasis on remedy being a product of the specific facts of each case, his apparent scepticism as to the likely relevance of planning permissions as a general rule, and his insistence that an LPA should not be an arbiter of private rights. 15

16 68. Lord Clarke agreed that planning permission may well be of particular relevance to remedies, without adding more [169]. Comment (a) Permissions 69. It is important to note the way in which planning permissions can be relevant following Coventry v Lawrence. 70. It is clear from the judgments that a planning permission is merely of evidential value as to certain matters which must be considered within a nuisance claim. It is never automatically determinative of any legal question. 71. Therefore, it is important to consider the extent to which a particular permission might be capable of supporting an assertion that either (i) the permitted use is part of a pattern of uses, or (ii) the limits set by the permission are reasonable limits for the purposes of protecting a particular claimant, or (iii) an injunction should not be granted because the relevant use of land is in the public interest. 72. The question of what is the relevant pattern of uses is a classic question of fact. The number of permissions, the reasons for their grant, and other existing uses are likely to be relevant factors in determining how much assistance can really be derived from a planning permission. 73. By way of an example, a planning permission may be granted where there is a fallback option which is more harmful than what is proposed. For example, there may be a use which has become immune from enforcement action by virtue of having carried on for ten years, which is utterly different from, but in some ways more harmful than, a use for which permission is sought. One could imagine a situation in which an LPA granted permission for a noisier use because it is, for example, far less visually harmful than a previous lawful use. This would neither be a ringing endorsement of the public benefit to be derived from the positive use proposed, nor would it necessarily constitute 16

17 an acknowledgement that the new permitted use has become part of the established pattern of uses in the locality to any great extent. 74. It must be recognised that the majority of the court did not consider the straight question of whether a permission was strategic to be determinative of the question of whether it was relevant. However, it may be that where a permission is strategic, particularly where it follows on from an allocation in a local plan which has been approved by an Inspector following an inquiry, that might lend greater support to the notion that the use is particularly in the public interest. The permission may therefore be of more assistance to the court in those circumstances, both in relation to character, and remedy. 75. Where limits have been set following the submission of rival expert reports, and perhaps even following cross examination of experts at a local inquiry, such limits are likely to be of greater weight than if they are merely proposed by a developer, whether through a s. 106 obligation or otherwise. Another situation in which planning limits are likely not to impress a court, is where there are weak limits imposed on a replacement permission following a previously unlimited immune use. 76. Since planning decisions almost always entail a balance, the grant of permission does not always mean anything more than that the proposal is less bad than something else. 77. The bottom line in reality is that planning decisions are in general unlikely to have a decisive bearing as to liability. However, their impact in a particular case is (like much in the planning sphere) a matter of fact and degree on the facts of each case. There is no magic in a mere permission. (b) LDCs (CLEUDs) 78. If one considers the reasons for which planning permission is relevant, it follows that LDCs are logically not relevant in quite the same way, as Lord Neuberger acknowledged at [135]-[136]. An LDC is a mere recognition that something is already 17

18 lawful, or would be lawful if it were to be undertaken. Thus the underlying planning merits of what is occurring or proposed are not relevant. 79. Where an LDC has been granted because a use has become immune, it is quite clear that such LDC may be capable of demonstrating that a use has become an established part of the pattern of uses in the locality (subject to the point that this question is always a matter of fact and degree). 80. However, the granting of an LDC will entail neither a consideration of the acceptability of any noise or other impacts, nor the question of what time-limiting or level-limiting conditions might make that use acceptable for neighbours. Further, it can never entail a process of analysing the perceived harm of the development against the public good. Conclusion 81. Planning permissions are capable of being of evidential value. How much value, and in relation to which questions, will be a question of fact and degree. Jonathan Wills May 2014 This seminar paper is made available for educational purposes only. The views expressed in it are those of the author. The contents of this paper do not constitute legal advice and should not be relied on as such advice. The author and Landmark Chambers accept no responsibility for the continuing accuracy of the contents. 18