Compulsory purchase – Compensation – Certificate of appropriate alternative development – Section 17 of Land Compensation Act 1961 – Planning and Compulsory Purchase Act 2004 – Whether section 38(6) of 2004 Act applying to determination of appropriate alternative development under section 17 of 1961 Act – Whether normal planning principles applicable to determination – Whether inspector erring in approach to para 8 of Appendix P to Circular 06/2004 – Claim allowed in part The claimant owned a building in Stratford, London E15, that housed a meat processing, packing and distribution business at ground-floor level with a nightclub above. In 2005, the claimant’s site was the subject of a compulsory purchase order (CPO) as part of the intended site for the 2012 Olympic Games. The claimant applied, under section 17 of the Land Compensation Act 1961, for a certificate of appropriate alternative development certifying that, in the absence of the acquisition scheme, planning permission would have been granted in respect of its site for the construction of a building up to 15 storeys in height containing commercial and residential or hotel development, with basement car parking. The first interested party, the local borough council, granted a certificate in respect of development for Class B1 and B2 business and general industrial development use and Class B8 storage and distribution use. They refused to certify the other Class A1 to D2 uses included in the claimant’s application. The defendant upheld the council’s decision on the recommendation of his inspector. The inspector proceeded on the assumption that any development should accord with the development plan unless material considerations indicated otherwise. In relation to A1 an A3 uses, he found that these would be confined to small pockets of development that could be disregarded for the purposes of issuing a certificate; he cited government guidance in para 8 of Appendix P to Circular 06/2004. The claimant applied to quash the certificate under section 21 of the 1961 Act. An issue arose as to the proper approach to the development plan. The defendant relied on section 38(6) of the Planning and Compulsory Purchase Act 2004 in support of the inspector’s approach. The claimant contended that section 38(6) did not apply to a determination under section 17 of the 1961 Act; it relied on section 17(7), to the effect that incompatibility of a use class with the development plan was not, in itself, a reason for treating it as inappropriate. Held: The claim was allowed in part. (1) Where a determination had to be made under the planning Acts, and if in that process regard was to be had to the development plan, then the determination had to accord with the plan unless material considerations indicated otherwise: see section 38(6) of the 2004 Act. A certificate of appropriate alternative development, under section 17 of the 1961 Act, had to contain an opinion on what classes of development would have been permitted on an application for planning permission, which was an application under the planning Acts: see section 17(4). Accordingly, the matter had to be considered in the same way as if an application for such permission had been made. It followed that the matter fell to be decided on normal planning principles with the consequential application of section 38(6) of the 2004 Act: Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 AC 307; [2000] 1 EGLR 13; [2000] 11 EG 141 and Rooff Ltd v Secretary of State for Communities and Local Government [2011] EWCA Civ 435; [2011] PLSCS 110 applied. That provision required the relevant authority to consider not just the development plan but also other material considerations. In a section 17 case, the decision-maker was reminded that the development plan was not the “be all and end all”. Properly construed, section 17(7) of the 1961 Act meant no more than that. Both section 17(7) of the 1961 Act and section 38(6) of the 2004 Act enabled the decision-maker to depart from the requirements of the development plan where appropriate, but only in accordance with normal planning principles. Accordingly, the inspector had not erred in his approach to the development plan. (2) The inspector had erred in his approach to para 8 of Appendix P to Circular 06/2004. Para 8 did not bear the meaning that the inspector had attributed to it. A use could not be disregarded for section 17 purposes simply because it was small in relation to the area to which the general policies of the development applied. The certificate should specify any uses appropriate to the site, regardless of their scale in relation to the wider area. What mattered was whether those uses would be acceptable as a significant element of the development of the site. Para 8 was not intended to rule out consideration of the planning merits of an individual proposal, even if it departed from approved policies. The question was whether, notwithstanding the lack of specific support for such uses in the relevant policies, there were significant and insuperable planning objections to the particular development: Rooff applied. On the evidence, the sort of shop or food facility that might be made available on the site could include a small supermarket. Such a use could have been acceptable as a significant element in the development of the site and the inspector had given no reasons why there would have been significant and insuperable planning objections to that particular development. However, it was not appropriate to quash the certificate for that error, in light of an undertaking given by the second interested party, as the body responsible for the acquisition under the CPO, that in any proceedings for assessment of compensation it would accept that planning permission would have been granted for the ground floor of the building envisaged by the certificate for one or more of Classes A1 or A3 uses and a creche within Class D1. It would be excessive to quash the entire decision where the challenge had succeeded on only one of several points advanced by the claimant. Thomas Hill QC and Benjamin Tankel (instructed by Trowers & Hamlins) appeared for the claimant; Richard Honey (instructed by the Treasury Solicitor) appeared for the defendant; Richard Glover QC (instructed by Eversheds LLP) appeared for the first interested party, Hackney London Borough Council; the second interested party, the Greater London Authority, did not appear and was not represented. Sally Dobson, barrister
Haringay Meat Traders Ltd v Secretary of State for Communities and Local Government
Compulsory purchase – Compensation – Certificate of appropriate alternative development – Section 17 of Land Compensation Act 1961 – Planning and Compulsory Purchase Act 2004 – Whether section 38(6) of 2004 Act applying to determination of appropriate alternative development under section 17 of 1961 Act – Whether normal planning principles applicable to determination – Whether inspector erring in approach to para 8 of Appendix P to Circular 06/2004 – Claim allowed in part
The claimant owned a building in Stratford, London E15, that housed a meat processing, packing and distribution business at ground-floor level with a nightclub above. In 2005, the claimant’s site was the subject of a compulsory purchase order (CPO) as part of the intended site for the 2012 Olympic Games. The claimant applied, under section 17 of the Land Compensation Act 1961, for a certificate of appropriate alternative development certifying that, in the absence of the acquisition scheme, planning permission would have been granted in respect of its site for the construction of a building up to 15 storeys in height containing commercial and residential or hotel development, with basement car parking. The first interested party, the local borough council, granted a certificate in respect of development for Class B1 and B2 business and general industrial development use and Class B8 storage and distribution use. They refused to certify the other Class A1 to D2 uses included in the claimant’s application.
The defendant upheld the council’s decision on the recommendation of his inspector. The inspector proceeded on the assumption that any development should accord with the development plan unless material considerations indicated otherwise. In relation to A1 an A3 uses, he found that these would be confined to small pockets of development that could be disregarded for the purposes of issuing a certificate; he cited government guidance in para 8 of Appendix P to Circular 06/2004.
The claimant applied to quash the certificate under section 21 of the 1961 Act. An issue arose as to the proper approach to the development plan. The defendant relied on section 38(6) of the Planning and Compulsory Purchase Act 2004 in support of the inspector’s approach. The claimant contended that section 38(6) did not apply to a determination under section 17 of the 1961 Act; it relied on section 17(7), to the effect that incompatibility of a use class with the development plan was not, in itself, a reason for treating it as inappropriate.
Held: The claim was allowed in part.
(1) Where a determination had to be made under the planning Acts, and if in that process regard was to be had to the development plan, then the determination had to accord with the plan unless material considerations indicated otherwise: see section 38(6) of the 2004 Act. A certificate of appropriate alternative development, under section 17 of the 1961 Act, had to contain an opinion on what classes of development would have been permitted on an application for planning permission, which was an application under the planning Acts: see section 17(4). Accordingly, the matter had to be considered in the same way as if an application for such permission had been made. It followed that the matter fell to be decided on normal planning principles with the consequential application of section 38(6) of the 2004 Act: Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 AC 307; [2000] 1 EGLR 13; [2000] 11 EG 141 and Rooff Ltd v Secretary of State for Communities and Local Government [2011] EWCA Civ 435; [2011] PLSCS 110 applied. That provision required the relevant authority to consider not just the development plan but also other material considerations. In a section 17 case, the decision-maker was reminded that the development plan was not the “be all and end all”. Properly construed, section 17(7) of the 1961 Act meant no more than that. Both section 17(7) of the 1961 Act and section 38(6) of the 2004 Act enabled the decision-maker to depart from the requirements of the development plan where appropriate, but only in accordance with normal planning principles. Accordingly, the inspector had not erred in his approach to the development plan.
(2) The inspector had erred in his approach to para 8 of Appendix P to Circular 06/2004. Para 8 did not bear the meaning that the inspector had attributed to it. A use could not be disregarded for section 17 purposes simply because it was small in relation to the area to which the general policies of the development applied. The certificate should specify any uses appropriate to the site, regardless of their scale in relation to the wider area. What mattered was whether those uses would be acceptable as a significant element of the development of the site. Para 8 was not intended to rule out consideration of the planning merits of an individual proposal, even if it departed from approved policies. The question was whether, notwithstanding the lack of specific support for such uses in the relevant policies, there were significant and insuperable planning objections to the particular development: Rooff applied.
On the evidence, the sort of shop or food facility that might be made available on the site could include a small supermarket. Such a use could have been acceptable as a significant element in the development of the site and the inspector had given no reasons why there would have been significant and insuperable planning objections to that particular development. However, it was not appropriate to quash the certificate for that error, in light of an undertaking given by the second interested party, as the body responsible for the acquisition under the CPO, that in any proceedings for assessment of compensation it would accept that planning permission would have been granted for the ground floor of the building envisaged by the certificate for one or more of Classes A1 or A3 uses and a creche within Class D1. It would be excessive to quash the entire decision where the challenge had succeeded on only one of several points advanced by the claimant.
Thomas Hill QC and Benjamin Tankel (instructed by Trowers & Hamlins) appeared for the claimant; Richard Honey (instructed by the Treasury Solicitor) appeared for the defendant; Richard Glover QC (instructed by Eversheds LLP) appeared for the first interested party, Hackney London Borough Council; the second interested party, the Greater London Authority, did not appear and was not represented.
Sally Dobson, barrister