Town and country planning – Certificate of appropriate alternative development (CAAD) – Compensation – Appellants applying for CAAD for nine dwellings on land in green belt – Certificate being granted for 11 or 12 dwellings – Appellants appealing – Whether certificate should be varied – Appeal allowed
The appellants owned neighbouring properties known as Thatched Cottage and 1 Grays Corner Cottages in Baker Street, Orsett, Grays, Essex, within the green belt. The appellants’ properties were shown on the indicative route of the respondents’ Lower Thames Crossing Project. The appellants served blight notices on the respondent. The acceptance of the blight notices meant that the respondent was deemed to have served a notice to treat in respect of the appellants’ interests in the land two months after service of the blight notices: section 154 of the Town and Country Planning Act 1990. Acceptance of the blight notices enabled the appellants to apply to the council for a certificate of appropriate alternative development (CAAD) under section 17 of the Land Compensation Act 1961: section 22(2)(b) of the 1961 Act.
The appellants made a joint section 17 application for a CAAD in relation to part of their respective land holdings for the development of nine residential units comprising seven detached houses and a pair of semi-detached houses. The council determined that appropriate alternative development for the purposes of section 14 of the 1961 Act would be: use as a paddock; use as amenity space in association with the residential use of Thatched Cottage; and the construction of not fewer than 11 and not more than 12 dwelling houses, subject to conditions. The houses could be semi-detached or in terraces and were not to exceed two-storeys and roof pitch in height, with a garage or off-street parking. The dwellings were not to be flats. As Thatched Cottage was a listed building, a specified area had to be left undeveloped so as not to harm its setting.
The appellants appealed. The respondent, as the acquiring authority entitled to an interest in the land subject to the section 17 certificate under section 18(1) of the 1961 Act, stated that it was not in a position to comment on the planning merits of the application in the same way as the decision-maker. Save that, it did not object in principle to the development referred to in the CAAD. On that basis, it confirmed that it did not intend to participate further in the proceedings.
Held: The appeal was allowed.
(1) The appeal site was suitable for residential development as outline planning permission had been granted in 2015 for the development of part of the site for 14 houses. It was a brownfield site previously used as a council storage yard and comprising 60% by area of former highways land. It was included as a “permissioned” site of 0.5482 hectares on the Brownfield Land Register and there was a significant shortfall in the local authority’s housing land supply. The appeal site was already bordered by major roads and the proposed development would improve the appearance of the site and alleviate current problems of anti-social behaviour. Furthermore, there were four other green belt sites in the vicinity with residential planning permission. Given that the council could not demonstrate a five-year supply of deliverable housing sites, the presumption in favour of sustainable development under para 11 of the 2019 National Planning Policy Framework (NPPF) applied (the tilted balance). Therefore, the relevant development plan and other policies for determining the application were held to be out of date and planning permission should be granted unless either the application of policies in the NPPF that protected areas or assets of particular importance, such as land designated as green belt or a designated heritage asset, provided a clear reason for refusing the development proposed; or the adverse impacts of granting permission would significantly and demonstrably outweighed the benefits, when assessed against the policies of the NPPF as a whole: para 11(d).
(2) The appeal site was in the green belt where there had to be very special circumstances (VSC) to allow inappropriate development such as housing. The suitability and deliverability of the appeal site for residential development constituted VSC so that the site’s designation as green belt and the status of Thatched Cottage as a listed building did not provide a clear reason for refusal or outweigh the benefits of the proposal. Given the size of the appeal site (0.67 hectares) the proposed development was major development and the policies for affordable housing and developer contributions applied to the proposed development described in the application. The NPPF expected 10% of the homes built in major developments to be available for affordable home ownership “as part of the overall affordable housing contribution from the site”. The core strategy acknowledged that the viability of redeveloping a brownfield site was necessarily more challenging than a green field site. There was no evidence about the viability of the proposed development but the appellants entered into a unilateral undertaking in March 2015 in which they agreed to transfer five out of 14 residential units (35.7%) as affordable housing and to pay a contribution of £70,000 towards education. That was a strong indication that the viability of the development was not likely to be an issue bearing in mind that the policies applied pro rata to the size of the development.
(3) Despite the council’s concerns, it should be possible to design a scheme on the appeal site that allowed for its development by nine houses in compliance with relevant policies; but the illustrative plans which had been produced to date did not achieve that and would need to be revised. The factors which the council identified as contributing to the satisfaction of the VSC test still applied to the proposal contained in the application. Importantly, the affordable housing and developer contribution policies were still applicable to the numerically smaller scheme since the site was larger than 0.5 hectares. Three of the proposed nine houses would have to be made available for affordable housing and a contribution of £45,000 towards education would be required. All the circumstances supported the principle of residential development on the appeal site and constituted very special circumstances. Planning permission for the proposed development of nine houses could reasonably have been expected to be granted. The certificate would be varied accordingly to reflect that, if the respondent had not proposed to acquire the land using compulsory purchase powers, planning permission could reasonably have been expected to be granted for development of nine dwellings.
(4) The appellants’ expenses reasonably incurred on the section 17 application and the appeal were to be taken into account as part of the compensation payable by the respondent as yet to be determined.
Meyric Lewis (instructed by Charles Russell Speechlys LLP) appeared for the appellants; The respondent did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Lockwood and others v Highways England Co Ltd
