Judge orders new hearing
A family involved in a seven-year battle with government over compensation for land seized during the construction of the East West Arterial Highway must face another lengthy court fight to get the money they believe they are owed.
A Grand Court judge, last week, overturned a decision of the Roads Assessment Committee to award the Bodden family nearly $350,000 for the 3.3 acre parcel of land.
Government had argued that proximity to the new road increased the land value to such an extent that no compensation was owed.
Justice Alex Henderson said the committee had failed to adequately explain the reasoning behind its decision and ordered a new hearing, following an appeal.
He said it was impossible to say if the committee had made the right judgment because its written decision was so inadequate.
Now the Boddens must join a list of at least 10 other land owners, who have been waiting, in most cases for several years, for the Roads Assessment Committee to hear their cases.
Almost $5 million was doled out to landowners who had property along the route seized to pave way for the highway with the majority negotiating fees with government’s Lands and Survey department.
But those that could not agree a price have faced a lengthy, expensive and so far fruitless battle to get paid.
The Bodden’s case, heard in 2010, was one of only two cases adjudicated by the committee since the construction of the road in 2006. That number can now be reduced to one, following Justice Henderson’s decision last week.
The judge said the committee’s written ruling did not meet certain “minimal standards.”
“The decision presents no legal analysis at all; it simply states a conclusion. Moreover, it contains no findings of fact that would enable this court to determine what the RAC’s conclusion about a prescriptive easement was within the realm of reasonableness.”
During the appeal, brought by the National Roads Authority, it emerged that the dramatic difference in valuation hinged on differing opinions from experts as to whether the piece of land in question already had the benefit of access to a road – through an informal route referred to as a prescriptive easement.
Lands and Survey’s expert valuation officer had deemed that the property was “landlocked” and that while construction of the highway did involve the seizure of a 3.3-acre parcel, the valuation of the land on either side would increase because of access to the new road, opening up development potential.
But the Roads Assessment Committee found that the land already had access to nearby Hirst Road through an informal route across an adjoining property.
The committee decided that the access amounted to a “prescriptive easement” – a term given to rights of way that acquire quasi-legal status through repeated use over time. They said the value of the land should therefore be assessed as though it enjoyed access to a road and could be sold to a developer for housing.
Justice Henderson made no ruling on the merits of that decision but he said the failure to explain it properly amounted to an error in law.
“My order is that the decision is set aside as inadequate and the claim for compensation is remitted to the RAC for a new hearing and fresh decision.”
It could potentially take several years to get a new decision from the RAC, which would itself be open to another appeal to the Grand Court potentially delaying the payout further.
One of the landowners Harold Bodden has died in the years since the road was built, while his brother Abshire is ill. The case is being fought by their daughters.