In Bridgend County Borough Council v Boland and another [2017] EWCA Civ 1004, the Court of Appeal upheld the Upper Tribunal (Lands Chamber) decision to vary a certificate of appropriate alternative development (CAAD) under section 17(4) of the Land Compensation Act 1961 (LCA 61) based on the assumption that the underlying scheme had been cancelled, not that it never existed.
The claimant’s agricultural land was outside the original development plan settlement boundary. A draft plan identified the land for school use (and redrew the boundary accordingly). No restriction on development for educational use was suggested and residential development within the settlement boundary was acceptable.
Having had its land acquired compulsorily, the claimant sought a CAAD on the basis that it would have been likely to secure residential permission. The authority issued a negative CAAD on the grounds that the settlement boundary had been moved to include the claimant’s land “only” to accommodate the school – permission would only have been granted for educational purposes. It applied a “no scheme” assumption (ie, that without the education scheme of development no settlement boundary change would have been made). This was intended to reflect the principle in Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] UKPC 71 that any change in value entirely due to the underlying scheme must be disregarded for compensation purposes.
Under Section 16(3) LCA, it is assumed that land “shown in the current development plan as an area allocated primarily for a range of two or more uses specified in the plan” would receive permission for development within the range of specified uses.
The Court of Appeal held that the claimant had to show that permission would have been granted for housing, on the balance of probabilities (Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 AC 307 applied); the correct assumption for Section 17 CAAD purposes was of “cancellation” of the underlying scheme. It was a question of fact for the tribunal to decide whether the settlement boundary policy fell within the underlying scheme. The extended boundary had included land not forming part of the school scheme. The policy change therefore had a function beyond the underlying scheme. The development plan could have restricted development on the claimant’s land to educational use only, but it did not. On the facts, it therefore did not make sense to ignore the claimant’s land as a result of the cancellation assumption.
The LCA 61 provisions have been substantially amended by Section 232 of the Localism Act 2011, but the case illustrates the need to apply the “cancellation assumption” for CAAD applications rather than the Pointe Gourde principle. It also confirms the fact-sensitive nature of judgements on the extent of the “underlying scheme” being cancelled.
Roy Pinnock is a partner in the planning and public law team at Dentons
