Compulsory acquisition for construction of by-pass – Owners applying for certificates of appropriate alternative development – Secretary of State issuing negative certificates – Owners alleging error in specifying and applying relevant date – Appeals allowed
Lands belonging to the appellants were proposed by the second respondent, the Department of Transport (DofT), for compulsory purchase for the purpose of constructing the A49 Shrewsbury by-pass for which plans had existed since 1952. The date of the proposal to acquire was January 30 1986. The date of entry was July 5 1990. Towards the end of 1992 the appellants applied to the local authority for certificates of appropriate alternative development under section 17 of the Land Compensation Act 1961, the purpose being to ascertain the development value which the lands would have possessed but for the acquisition proposal. The local authority certified that permission would have been granted in one case for residential development and in the other for residential and industrial development. The DofT, acting under section 18 of the Act, appealed against the certificates to the first respondent, the Department of Environment (DofE), who by decision letter dated July 4 1996 substituted (negative) certificates to the effect that planning permission would not have been granted for any development other than that proposed by the DofT. In combined appeals to the High Court under section 21 of the 1961 Act, the appellants contended that the DofE had fallen into error (i) by taking the date of entry as the relevant date for considering the application of current and reasonably foreseeable planning policies; (ii) by not discounting the adverse planning consequences of the by-pass scheme over the years before January 30 1996.
Held The appeals were allowed
1. In Jelson v Ministry of Housing and Local Government [1970] QB 243, the Court of Appeal had ruled that the relevant date for considering the physical state of the land for planning policy purposes was the date of the proposal to acquire. Although the present case concerned present and future planning policies affecting the land, the reasoning in Jelson compelled the conclusion that the same date should apply to all the relevant facts; nor was there any reason in principle to justify the split-date approach adopted by the Dof E and by Sir Douglas Frank QC in Robert Hitchins Builders Ltd v Secretary of State for the Environment (1978) 37 P&CR 140 which should accordingly not be followed.
2. As regards the second issue, the DofE was not bound by Jelson to proceed as if the by-pass scheme had been cancelled at the relevant date since that decision, which concerned a scheme which had been abandoned by the Minister , was not directly in point. The correct approach, and the one which accorded with the Pointe Gourde principle to be applied when the amount of compensation fell to be agreed or determined, was to proceed as if the scheme had never been conceived at all: see Grampian Regional Council v Secretary of State for Scotland [1984] 2 EGLR 175 per Lord Bridge.
Robin Purchas QC and Timothy Comyn (instructed by Manby & Steward, of Telford) appeared for both appellants; Jeremy Sullivan QC and Rabinder Singh (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the Secretary of State for Transport did not appear and was not represented.
