Compulsory purchase – Compensation – Costs – Appellant landowner appealing unsuccessfully against grant of negative certificate of appropriate alternative development by respondent local authority – Upper Tribunal determining costs of appeal in favour of respondent – Appellant appealing – Whether tribunal entitled to uphold certificate on appeal under section 18 of Land Compensation Act 1961 – Whether tribunal erring in making order that unsuccessful appellant pay respondent’s costs under rule 10(6)(a) of Tribunal Procedure (Upper Tribunal) (Lands Chamber ) Rules 2010 – Appeal dismissed – Costs appeal allowed
The appellant was the owner of land at East Lane End Farm, on the outskirts of Morpeth in Northumberland, until it was compulsorily acquired by the respondent local planning authority for the construction of the Morpeth northern bypass. The appellant applied for a certificate of appropriate alternative development (CAAD) under section 17 of the Land Compensation Act 1961 so that the land’s full potential value could be assessed for the purpose of compensation. On such an application, the authority had to decide whether on a hypothetical application (made on certain assumptions) planning permission would have been granted for appropriate alternative development. The respondent decided that no planning permission would have been granted.
The Upper Tribunal (UT) subsequently dismissed an appeal by the appellant under section 18 of the 1961 Act. The UT held that it should be assumed, in the absence of some good reason for concluding that the site was not within the green belt, that it was green belt land. Applying that assumption, permission would not have been granted: [2020] UKUT 150 (LC).
It was now common ground that if the respondent and the UT were correct in that conclusion, the decision on the application for a CAAD was correct; but if it was wrong, planning permission would have been granted for residential development because the respondent could not demonstrate a five-year supply of housing.
The UT subsequently ordered the appellant to pay the respondent’s costs of the appeal under rule 10(6)(a) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, which included the costs of a section 18 appeal within the broad scope of “proceedings for compensation for compulsory purchase”: [2020] UKUT 328 (LC); [2020] PLSCS 219. The appellant appealed against both decisions.
Held: The appeal was dismissed. The costs appeal was allowed.
(1) Policy S5 of the Joint Structure Plan proposed an extension to the green belt around Morpeth but left the precise boundaries of the proposed extension to be fixed by local plans. Thus, it was not possible to say with certainty, whether the land in question would or would not form part of the green belt once the detailed boundaries had been fixed by a local plan.
In Wedgewood v City of York Council [2020] EWHC 780 (Admin), the court considered what a decision maker was to do in the light of a general strategic policy such as policy S5. It held that a local authority should apply the high-level policy rationally in order to determine what land within the “doughnut ring” of potential green belt was to be treated as green belt land. It might have regard to a draft local plan and should take into account site specific features that might tend towards treating the site as green belt or not.
In the present case, the UT concluded that, once a site was included within the description of the general extent of the green belt in the relevant policy, the mere fact that the precise boundaries of the extension had not yet been defined was not a reason for treating the land as if green belt policies did not apply to it. The only safe assumption, in the absence of some good reason for concluding that the site was not within the green belt, was that it was green belt land. That entailed a two-stage process. Since the land fell within the ambit of policy S5, it was capable of being green belt land. To disapply green belt planning policies at that stage would be to remove options for designation as green belt that the local planning authority currently had. The second stage was to decide whether there was sufficient reason for concluding that, when the boundaries of the green belt were finally determined, the particular land in issue would be excluded from the green belt. In that connection, there was no material difference between a “good” reason and a “sufficient” reason. The decision-maker had to have a degree of confidence that, ultimately, the land would fall outside the boundaries of the green belt, once they had been definitively fixed.
The method that the UT adopted was a sound way of dealing with land within the general areas of a proposed green belt whose boundaries were not yet definitively fixed and was not irrational.
(2) Until changes introduced by the Localism Act 2011 (from 6 April 2012), appeals against CAADs were assigned to the secretary of state. Although the secretary of state had wide statutory powers to make orders for costs, it had been the long-standing practice to let costs lie where they fell except where one party had been guilty of unreasonable behaviour. The express inclusion of expenses incurred in connection with an appeal in section 17(9A) of the 1961 Act (inserted by the Planning and Compensation Act 1991) (now section 17(10)) was limited to those of the expropriated landowner. That must have been intended as an exception to the general policy in relation to the award of costs.
The genesis of rule 10 of the 2010 Rules was a report on costs published by the Senior President of Tribunals (SPT). However, at the time of that report, appeals in CAAD cases remained assigned to the secretary of state, whose practice was not to award costs except in cases of unreasonable behaviour. It followed that rule 10(6)(a) could not have been intended to capture CAAD appeals, because at the date of the SPT’s report, which the new rules were intended to implement, they were not within the jurisdiction of the UT. Even when that change was made, it could not have resulted in completely discretionary costs shifting because section 17(10) remained in force. Nor was rule 10(6)(a) amended to widen its previous scope. Accordingly, the power of the UT to make a costs order (absent unreasonable behaviour) was not enlarged when CAAD appeals were transferred to it; and the UT did not have the power to make the costs order that it did.
Paul Cairnes QC and James Corbet Burcher (instructed by Walker Morris LLP) appeared for the appellant; James Pereira QC and Daisy Noble (instructed by Northumberland County Council) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Leech Homes Ltd v Northumberland County Council
