The Commissioner of Lands v Valtiman Thomas
| Jurisdiction | Jamaica |
| Judge | Lindo, J |
| Judgment Date | 07 October 2020 |
| Date | 07 October 2020 |
| Docket Number | CLAIM NO. 2012HCV07132 |
| Court | Supreme Court (Jamaica) |
[2020] JMSC Civ 44
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Lindo, J
Clinton Cunningham, ASSESSOR
Kenneth Allison, ASSESSOR
CLAIM NO. 2012HCV07132
Ms Faith Hall instructed by the Director of State Proceedings for the Claimant
Mr Maurice Smith instructed by SmithLaw for the Defendant
Compulsory Land Acquisition — Compensation and Interest paid — Owner of land aggrieved — Reference by the Commissioner of Lands — Land Acquisition Act
This matter is a reference by the Commissioner of Lands (the Commissioner) under Section 17 of the Land Acquisition Act (the Act). It is made by way of Fixed Date Claim Form filed on December 20, 2012 and amended on February 6, 2013. It is supported by evidence on affidavit of the Commissioner, Elizabeth Stair and Courtney Henry, Deputy Commissioner of Land Valuations, whose valuation reports were considered and relied on by the Commissioner.
The remedy sought is a determination as to the amount of compensation payable to the Defendant for the acquisition of the lands. The background to the matter and the evidence of the Commissioner are encapsulated in her affidavit filed on October 20, 2012.
The Defendant Valtiman Thomas is the registered proprietor of the following lands, the subject of this matter:
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(a) All that parcel of land part of Harmony Hall, Portland Cottage situate in the parish of Clarendon containing approximately 15.87 acres of land and being part of land registered at Volume 1357 Folio 678 of the Register book of Titles (hereafter referred to as Parcel A)
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(b) All that parcel of land part of Harmony Hall, Portland Cottage situate in the parish of Clarendon containing approximately 8.03 acres of land and being part of land registered at Volume 1161 Folio 959 of the Register Book of Titles (hereafter referred to as Parcel B)
The Defendant is also the owner of all that parcel of land part of Harmony Hall, Portland Cottage situate in the parish of Clarendon containing approximately 8.03 acres of unregistered land with Valuation Number 24402007017 (hereafter referred to as Parcel C)
Pursuant to Section 3(1) of the Act, the Minister of Land and Environment (the Minister) by Notice dated March 8, 2005 indicated that the lands would likely be needed for a public purpose, the relocation of victims displaced by Hurricane Ivan in 2004. This notice was published in the Jamaica Gazette dated March 11, 2005 and on March 8, 2005 a declaration was made by the Minister pursuant to Section 5(1) of the Act that the lands would be needed and this declaration was also published in the Jamaica Gazette of March 11, 2005.
The Commissioner states that she was directed by the Minister pursuant to Section 6 of the Act to take proceedings for the acquisition of the lands and she took steps to have the lands valued and to enter into negotiations to acquire them by private treaty. Offers were made to the Defendant through his attorneys at law and a counter offer was made by the attorneys at law, supported by a valuation report prepared by Edwin Tulloch Reid and Associates, dated March 2005.
The Defendant's attorneys at law were advised by letter dated April 19, 2005, that the Commissioner was unable to accept the values stated in the report of Edwin Tulloch Reid and Associates so no agreement was arrived at for the acquisition of the land by private treaty.
On April 28, 2005, the Commissioner published a notice pursuant to Section 9 of the Act, inviting claims for compensation from persons with interest in the lands, as well as inviting such persons to appear at an Enquiry on May 16, 2005, to state the nature of their interest and the amount and particulars of claim for compensation. The Minister, by way of Notice pursuant to Section 15 of the Land Acquisition Act (LAA), (undated) directed the Commissioner to take possession of the said lands and copies of the notices were posted on the lands.
An Enquiry was held by the Commissioner on May 16, 2005, in accordance with Section 11 of the Act. Mr Thomas, who was present, requested the bases of the valuation reports relied upon, and the Commissioner requested a breakdown of the valuation by Mr Edwin Tulloch-Reid. A breakdown was provided on June 30, 2005. It indicates that Parcel A, land registered at Volume 1357 Folio 678 is valued at $6m; Parcel B, land registered at Volume 1161 Folio 959 is valued at $3m, and Parcel C, unregistered land is valued at $2.7m.
On March 17, 2006, the Commissioner made the following awards:
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(i) Two million four hundred thousand dollars ($2,400,000.00) in respect of Parcel A
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(ii) One million two hundred thousand dollars ($1,200,000.00) in respect of Parcel B
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(iii) One million two hundred thousand dollars ($1,200,000.00) in respect of Parcel C.
The Commissioner states that in determining the amount of compensation she considered the market value as at the date of service of the notice under Section 9 of the Act, and relied on Certificates of Valuation from the Commissioner of Land Valuation dated February 21, 2005 for the three parcels of land and she determined that the awards would adequately compensate the Defendant.
By letter dated March 29, 2006, the Defendant indicated that the awards would not be accepted, but following further correspondence the Defendant accepted the payments of the awards and payment of interest at the rate of 15%, pending the determination by the court.
The sum paid to the Defendant on February 6, 2007 was $5,300,160.00, representing the compensation handed down in the Notices of Award dated March 17, 2006, plus interest up to January 31, 2007.
At the hearing which commenced on July 29, 2019, the affidavit of the Commissioner was admitted as her evidence in chief. She was not cross examined.
Mr Courtney Henry, Chartered Valuation Surveyor and Deputy Commissioner of Land Valuation in charge of the South Region, and a member of the Royal Institution of Chartered Surveyors, gave evidence and was cross examined. His affidavit filed on January 7, 2019 stood as his evidence in chief.
His evidence is that he was instructed by the Director of Estate Management at the National Land Agency (NLA) to conduct valuation on part of Portland Cottage “for the purpose of the Land Acquisition Act and to value each parcel of land separately”. He says he conducted valuations of each parcel of land to determine their current market value and in arriving at the market value he acted in accordance with Section 14(1)(ii)(a) of the Act.
Mr Henry says “the definition of Market Value, as agreed by the ‘Royal Institution of Chartered Surveyors’ and the ‘International Valuation Standards (2013)’ is:
‘The estimated amount for which an asset or liability should exchange on the conduction date between a willing buyer and a willing seller in an arm's length transaction after proper marketing wherein the parties had each acted knowledgeably, prudently and without compulsion.’”
He adds that “the definition of market value implicit (sic) the assumption of Highest and Best Use (HABU). The definition of Highest and Best Use as agreed by ‘Royal Institution of Chartered Surveyors’ and the ‘International Valuation Standards (2013)’ is:
‘The most probable use of a property which is physically possible, appropriately justified, legally permissible, financially feasible, and which results in the highest value.’”
He also states that an investigation of the planning considerations relating to the site revealed that it is located in an area which is not zoned for any particular use under the Town and Country Planning (St Catherine Coast) Provisional Development Order, 1964, and based on the approved and prevailing use of the subject and adjoining lots, the HABU of the site was deemed to be residential lands.
Mr Henry indicates that inspections of the three parcels of land were carried out and upon analysis of various factors, together with comparable data and their analyses, the market value of the parcels of land were found as at the Valuation date of February 5, 2005, to be as follows:
“In the region of One Million Nine Hundred Thousand Dollars to Two Million Four Hundred Thousand Dollars ($1,900,000.00 to $2,400,000.00) … in the region of Nine Hundred and Fifty Thousand Dollars to One Million Two Hundred Thousand Dollars ($950,000.00 to $1,200,000.00) …Nine Hundred and Fifty Thousand Dollars to One Million Two Hundred Thousand Dollars ($950,000.00 to $1,200,000.00…”
He states further that in arriving at the market value, he utilized the Direct Sales Comparison Approach, a method which is dependent upon “ the availability of sales data as near as possible to the Valuation Date, which are located in close proximity to the subject, are similar in size, gradient, soil type and land use, and from which comparisons and therefore adjustments, can be made”, and that the transactional evidence relied on are of residential/agricultural-type unimproved properties sold in 2002/2005 and sold for prices ranging from “a high of $175,000.00 per acre (rounded) to a low of $150,000.00 per acre (rounded)”
Mr Henry highlights the following:
“Transactional evidence dated January 5, 2004 showed lot with a plot size of 607.03 m2 in Mitchell Town, a community which is adjacent to Portland Cottage, selling at $120,000. Analysis indicates that large lots with sub-divisional potential would fetch a market price in the region of $200,000.00 per acre.
Transactional evidence dated November 22, 2000 showed that a 10.5 acre site in Mitchell Town was sold for $1.75M reflecting $166,000.00 per acre.
Transactional evidence dated October 6, 2001 shows that 3.25 acres in Gimmi-Mi-Bit another community which is adjacent to Portland Cottage was sold for...
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