Compulsory purchase – Compensation – Land Compensation Act 1961 – Appellants’ land acquired under compulsory purchase order purposes of new school building – Appellants applying for certificate of appropriate alternative development under section 17 of 1961 Act — Whether planning permission would have been granted for housing development on assumption that school development cancelled – Appeal allowed
In 2005, the respondent council made a compulsory purchase order (CPO) for the purpose of acquiring land adjacent to a primary school in Pen-y-Fai, Bridgend, in order to construct a replacement school building. The land so acquired included an area of pasture belonging to the appellants. The appellants argued that compensation for the acquisition of their land should be calculated not on the basis of its existing agricultural value but on the basis that, in the absence of the school development, planning permission would have been granted for a small housing development. They accordingly applied to the respondents for a certificate of appropriate alternative development, under section 17 of the Land Compensation Act 1961, certifying that housing would have been an acceptable alternative development of the land.
The respondents refused to grant the certificate on two grounds: (i) although the settlement boundary had been re-drawn in the 2005 unitary development plan (UDP) so as to include the appellants’ land, that had been done on the basis of the identified need for a replacement school and the boundary would, in the absence of that scheme, have reverted to its former line so as to leave the appellants’ land in the countryside, where policies of strict development control applied; and (ii) any housing development on the appellants’ land would require improvements to a road junction where the school lane met the main road, which would not have been possible because it would require works on land outside the appellants’ control and would, in any event, be disproportionate to the scale of the proposed development, so that any planning condition requiring such works should be avoided, in accordance with the planning guidance in Welsh Office Circular 11/95: Use of Conditions in Planning Permission, as being unreasonable for the purposes of para 14of the circular or too onerous contrary to paras 36 and 42.
The appellants brought an appeal under section 18 of the 1961 Act. They contended that the re-drawing of the settlement boundary in the UDP was not predicated solely on the need for the school development but instead established the principle that the land was suitable for appropriate development. In relation to the road junction improvements, they argued that the necessary improvements could feasibly have been achieved by the purpose of small slivers of land and/or traffic calming measures.
Held: The appeal was allowed.
(1) In order for the appellants to succeed, they had to establish on the balance of probabilities that planning permission would have been granted for housing: Tescan Ltd v Cornwall Council [2014] UKUT 408 (LC); [2015] RVR 251 applied. That required a consideration of the planning policies set out in the development plan. In the instant case, it was apparent that the replacement school building proposal had prompted the re-drawing of the settlement boundary so as to include the land in the UDP. However, such a re-drawing was not necessary for the school proposal to comply with the UDP policies since those policies included a specific allocation of the land for the school development. That allocation would probably have been sufficient to support the school development proposal without the re-drawing of the settlement boundary. There was nothing expressly to indicate that only the particular school development, and no other development, was considered appropriate. The re-drawing of the boundary was likely to have involved other considerations such as “rounding off”. The re-drawing of the boundary had to be taken to indicate that the principle of development of the land was acceptable.
While the appellants’ application had to be considered on the assumption that the proposal for a replacement school building was cancelled, that did not necessarily require the reversion of the settlement boundary to its previous line to exclude the land. That would amount to reconstructing the planning history. It was relevant that the passing of time since the UDP process had taken place meant that only scant evidence was available, making it difficult to come to a safe conclusion as to what might have happened: Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 WLR 438; [2000] PLSCS 33 considered.
Further, it was important to bear in mind that, in considering whether to grant a certificate under section 17 of the 1961 Act, the assumption that the proposal was cancelled was differing to considering what would have happened in the “no-scheme world” for the purposes of the final assessment of compensation. The wider considerations that might be appropriate to the latter assessment were not relevant in the determination of the contents of a certificate under section 17: JS Bloor (Wilmslow) Ltd v Homes and Communities Agency [2015] EWCA Civ 540; [2015] RVR 292; [2015] EGLR 49 distinguished. It followed that the appellants’ application had to be considered on the assumption that the proposal for a replacement school building was cancelled, but that the land remained within the settlement boundary.
(2) Further, on the balance of probabilities, the highways objection to a housing development on the appellants’ land could have been overcome by the imposition of planning conditions that related to land outside the ownership or control of the appellants, so as to require both junction improvement works and traffic calming measures to be completed before the residential development commenced: Grampian Regional Council v Secretary of State for Scotland 1984 SC (HL) 58; [1984] 2 EGLR 175 considered. The mere fact that the implementation of those works would depend on the agreement of third parties to sell part of their land to the appellants was not sufficient reason to refuse planning permission for the proposed housing development.
There was no evidence that the required highway works would be so extensive as to be disproportionate to the scale of the proposed development, making any condition requiring their completion before the commencement of development unreasonable or too onerous for the purposes of Circular 11/95. Since the traffic generated from the proposed residential development was likely to be no greater that that from the new school and other associated uses of the access lane, a similar junction improvement to that included in the CPO scheme, involving the construction of a visibility splay, would have been acceptable in conjunction with appropriate traffic calming measures. It followed that the appellants were entitled to the certificate that they sought.
Graham Walters (instructed by Harmers Ltd) appeared for the appellants; Wayne Beglan (instructed by the legal department of Bridgend County Borough Council) appeared for the respondents.
Sally Dobson, barrister
Click here to read transcript: Boland and another v Bridgend County Borough Council
