Compulsory acquisition of land — Compensation — Valuation — Certificate of appropriate alternative development — Land Compensation Act 1961, section 17 — Conflicting claims of provision for residential
certificate challenged by the applicants specified the appropriate alternative
development as a private open space or private open-air recreational use — In
examining the rival submissions of the applicants and the Secretary of State
Roch J considered the cases of Robert Hitchins Builders Ltd v Secretary of
State for the Environment, Jelson Ltd v Minister of Housing and Local Government and
Grampian Regional Council v Secretary of State for Scotland — He concluded that the Secretary
of State had been wrong in holding that it was legitimate to have regard to
relevant planning policies ‘current and reasonably foreseeable’ — The word
‘immediately’ in section 17(3) meant ‘immediately after the relevant date’,
which in turn meant immediately after the proposal to acquire, ie whichever of
the three facts set out in section 22(2) applies — The references in section
17(3) and (5) to a ‘future time’ meant simply a future time as seen at the
relevant date
of State had also misdirected himself in concluding that it would not be
appropriate to leave out of account altogether the policies in the local plan
in regard to outdoor recreational facilities and the use of open space — It was
clear, on the contrary, that not only the proposal by the public authority to
acquire the land compulsorily must be ignored but also the planning policies
which underlay such a proposal — This is the effect of section 17(4) and (7) of
the 1961 Act — Further, there was no other independent reason for treating
residential development as being a development for which planning permission
would have been refused
was that section 17(4) required a local planning authority, or a minister on
appeal, to look at the situation on the assumption that there was no scheme by
the public authority to acquire the land for a public purpose by way of
compulsory purchase — In the present case, on the findings of fact made by the
inspector and accepted by the Secretary of State, if the matter was looked at
as at the correct date, ignoring the local authority’s scheme to extend the
recreation ground and the policies underlying that scheme, then the conclusion
was inescapable that residential occupation would have been an appropriate
alternative development for the land — This had in fact been the inspector’s
conclusion
that the Secretary of State’s decision was quashed and the matter was remitted
to him with a direction that he should consider the issue of a certificate by
looking at the state of the applicants’ land and the planning policies and
circumstances as on March 27 1987 (the date of the acquiring authority’s offer
to negotiate for a purchase), disregarding the local authority’s scheme to
acquire the land for recreational purposes and the similar provisions in the
local development plan
the Court of Appeal’s decision in Jelson Ltd v Minister of Housing and
Local Government has not been overruled
The following cases are referred to in
this report.
Grampian Regional Council v Secretary of State for
Scotland [1983] 1 WLR 1340; [1983] 3 All ER 673; (1983) 47 P&CR 540; 23
RVR 263; [1984] EGD 1073; 271 EG 625, [1984] 2 EGLR 175, HL
Jelson Ltd v Minister of Housing and Local
Government [1970] 1 QB 243; [1969] 3 WLR 282; [1969] 3 All ER 147, CA
Robert Hitchins Builders Ltd v Secretary of
State for the Environment (1978) 37 P&CR 140: [1978] EGD 945; 248 EG
689, [1978] 2 EGLR 146; [1978] JPL 824
Skelmersdale Development Corporation v Secretary of State for
the Environment [1980] JPL 322
West Midland Baptist (Trust) Association
(Inc) v Birmingham
Corporation [1970] AC 874; [1969] 3 WLR 389; [1969] 3 All ER 172, HL
This was an application by Jeremy Dacre
Fox, Brian Ball Greene and Joyce Ball Greene, owners of land at Pennyhill Park,
College Ride, Bagshot, Surrey, for an order under section 21(1) of the Land
Compensation Act 1961, quashing a decision by the Secretary of State for the
Environment in regard to a certificate of appropriate alternative development
affecting the said land.
Robin Purchas QC and Timothy Comyn
(instructed by Merriman White) appeared on behalf of the applicants; Robert
Griffiths (instructed by the Treasury Solicitor) represented the first
respondent, the Secretary of State for the Environment; the second respondents
(Surrey Heath Borough Council) were not represented and took no part in the proceedings.
Giving judgment, ROCH J said: This
is an application under section 21(1) of the Land Compensation Act 1961 by the
owners of land at Pennyhill Park, College Ride, Bagshot, who are aggrieved by a
decision of the Secretary of State given on October 27 1989 and who question
the validity of that decision. The power of this court under that section is
that this court may quash the minister’s decision if satisfied that the
decision was not within the powers of the Land Compensation Act, or that there
has been a failure to comply with the requirements of that Act which has led to
the interests of applicants being substantially prejudiced.
The decision of the Secretary of State
was that a certificate issued by the second respondents (who are the local planning
authority for the district in which the applicants’ land is situated) on March
14 1988 under section 17(4) of the 1961 Act, which certified that planning
permission would not be granted for any development other than the development
which is proposed to be carried out by the second respondents, that is to say
development as playing fields or recreational use or public open space, be
cancelled and a certificate be issued certifying that planning permission would
have been granted in respect of the applicants’ land if it were not proposed to
be acquired by the second respondents possessing compulsory purchase powers for
development of the land as private open space or private open-air recreational
use. In making that decision the Secretary of State declined to adopt the
recommendation of his inspector made in June 1989 that the second respondents’
certificate be cancelled and a new certificate be issued specifying that
residential development of the land at a density of no more than 17 dwellings
per ha or seven to the acre would be appropriate subject to conditions
requiring the reservation of 0.3 ha (0.7 acres) for children’s play and the
submission of details of landscaping and drainage works. The inspector’s
recommendation was made following the holding of a public inquiry on April 27
and 28 and May 9, 10 and 18 1989.
The grounds of the application are set
out in the notice of motion. However, Mr Purchas, who appeared for the
applicants, helpfully distilled the eight grounds in the notice of motion down
to five questions. Those questions were:
(1)
Did the first respondent apply the appropriate date for assessment when
he applied policies and the position on land supply as at the date of his
decision — that is to say as in October 1989?
(2)
Was the first respondent justified in not discounting the scheme
underlying the proposed acquisition or in not addressing the question of the
‘no scheme world’ at all?
(3)
What is the meaning of the reference by the first respondent to the
possibility that the general aims of these policies regarding the appeal land
might have been achieved by the use of the land for a private recreational use
or, to a lesser extent, by its simply remaining open and undeveloped? If it was relied upon by the first
respondent, was there any evidence to support the first respondent’s conclusion
that there was such a possibility? Did
the first respondent have regard to material considerations including whether
the land would be likely to be put effectively to that use without compulsory
acquisition?
(4)
Has the first respondent given adequate, intelligible reasons for rejecting
his inspector’s conclusion and findings of fact to the extent that he did?
(5)
If the first respondent in fact differed from his inspector on findings
of fact or took into account private open space user, was there a breach of
natural justice because there was no fair opportunity for the applicants to
address that issue which was not part of the evidence of the inquiry and not
challenged?
It was the submission of Mr Griffiths,
who appeared for the first respondent — the second respondents were not
represented and did not appear — that the first respondent had not rejected his
inspector’s conclusions or findings of fact. The first respondent had formed
the view that his inspector had misdirected himself on two matters: first, as
to the appropriate date for considering the matters to which the certificate
relates; second, as to the correct interpretation and application of section
17(7) of the 1961 Act. The inspector had concluded that proposal 8c of the
local plan was to be disregarded. The Secretary of State’s view was that in
reaching that conclusion the inspector had misdirected himself on the meaning
and application of section 17(7). The inspector had gone on to say that if
proposal 8c was not to be disregarded it would be wrong to issue a positive
certificate for housing development. Both are matters of law.
The applicants’ land is situated in the
north-western part of Bagshot. It is just over 7 acres in area and is roughly
rectangular in shape. It is bounded on its eastern side by a road containing
houses and on its northern side by a tree-lined walk, then a public road, then
further housing. On its southern side it is bounded by houses. On its western
side is situated a recreation ground comprising tennis courts, football pitch,
an area for archery, children’s playground, pavilion and a car park. That
recreation ground is owned by the second respondents and leased to the Bagshot
Playing Fields Association, the Bagshot and Crawley Rise Lawn Tennis Club and
the Bagshot Archery Club.
The planning history of the applicants’
land begins in June 1977, when the Secretary of State dismissed an appeal by
the applicants against a refusal by the second respondents of planning
permission for residential development of the land. The grounds for refusal
were, briefly, that there was insufficient need for additional housing in
Bagshot established and consequently it was premature to say that the
development ought to be permitted in spite of environmental conditions, those
being the fact that the site was in an area where green belt policies were
severely restricting development and the granting of permission would represent
an undesirable extension of building into open countryside thus reducing the
effectiveness of the then open gap between Bagshot and Camberley.
In April 1980 the Surrey structure plan
was approved. That described the boundary of the green belt in such a way that
any possibility of the appeal site being included in the green belt was
removed. The operative local plan is the Surrey Heath local plan which was
adopted in 1985. The Surrey Heath local plan brief was prepared in 1980. In
that year the recreations and amenities committee of the borough council
resolved to retain the proposals for the appeal site contained in the five- to
10-year recreation programme, namely that the applicants’ land should be used
for recreational purposes. In February 1981 there was published the local plan
issues report. In March 1981 the recreations and amenities committee was
requested by the Bagshot Playing Fields Association to give consideration to
the council’s purchasing the applicants’ land. In June 1981 the association
suggested that the council should exercise their compulsory powers to acquire
the applicants’ land. By that time the Windlesham Parish Council had written
indicating that, in their view, the purchase of the land should be considered
as a matter of immediacy, both to preclude its development and to provide for a
necessary extension to the existing recreation ground. The committee resolved
that the previous decision be reaffirmed, but on the understanding that the
site would continue to be considered both in the context of the land
utilisation study requested by the committee and also of the considerations of
the district plan. In 1981 an application was made for planning permission for
residential development which was refused by the local planning authority.
There was an appeal against that refusal. In February 1982 a draft of the local
plan for the purposes of consultation was published. In August 1982 the appeal
against refusal of planning permission was heard by an inspector, who stated:
In my opinion, development of the appeal
site, situated as it is between the finger of College Ride development
extending much further west and the Wimpey site almost as far west, would form
a natural expansion of the existing settlement. The establishment of the
playing field and golf course and the grounds of Pennyhill Park [the golf
course and the grounds of Pennyhill Park were to the north west and west of the
applicants’ land and the recreation ground] provide the barrier to further
expansion and weakening of the green wedge. Since the 1977 appeal decision the
circumstances have changed materially, as the appellants point out. In the
present circumstances I find no compelling objection to the proposed
development in response to a need for more housing in the general area and the
necessity for development on green field sites.
The inspector considered that there was a
housing land deficiency which called for the immediate release of the
applicants’ land and that this could not wait for the adoption of the local
plan which might take a further year. In November 1982 the statement of
consultations on the local plan and the local plan deposit draft were
published. Proposal 12c of the draft proposed the applicants’ land for open
space purposes. In December 1982 the recreations and amenities committee noted
the proposals in the draft local plan.
In January 1983 the Secretary of State
wrote an interim appeal letter in which he said:
[The Secretary of State] agrees with the
inspector that none of the compelling planning objections noted in paragraph 17
of Annex A of circular 22/80 would appear to apply with any great force to
either of these appeal sites [two appeals had been heard concurrently, one
concerning the applicants’ land and the other concerning land at McDonald Road,
Lightwater] and he believes that on the basis of their own planning merits both
can be regarded as reasonable candidates for development if assessed against
the background of established need to release more land for housing. Much does
however depend on what conclusion is reached on the key issue of the adequacy
of the supply of housebuilding land in Surrey Heath.
The Secretary of State then went on to state
that he was of the view that before deciding the appeal he should afford the
parties the opportunity of clarifying and updating the position on the land
supply question. In June 1983 a public inquiry into the local plan was held. In
the autumn of 1983 the borough council reviewed their corporate plan and in
that review recorded that:
The local plan requires that the council
seek provision for the following amounts of public open space:
5 acres at the rear of Connaught School,
Bagshot
2 acres at Windmill Field, Windlesham
3 acres of land adjoining Frimley Green
Recreation Ground
1.5 acres of Clews Lane, Bisley in
addition to the above
7.8 acres at College Ride/Higgs Lane,
Bagshot [that is the applicants’ land]
2.5 acres of land at Guildford Road/Fenns
Lane, West End.
In December 1983 the Secretary of State
dismissed the appeals in respect of the applicants’ land and the land at
McDonald Road, Lightwater, because he considered that the existence of a
five-year supply of housing land in the district had been established. The
additional presumption in favour of development that would arise from a
shortfall in the five-year supply of housing land, the factor which weighed
heavily with the inspector when he recommended that the appeals be allowed, did
not therefore apply. The Secretary of State went on to express the opinion that
the use for the applicants’ land proposed in the draft district plan, namely as
an extension to existing playing fields, was a use to which the land would be
preeminently suited and added:
. . . in view of the very strong local
support there is for such an allocation, he considers that it would be wrong to
pre-empt further consideration being given to this within the context of
District Plan procedures by granting a planning permission for residential
development on this land at this juncture.
What the Secretary of State did not say
was that the applicants’ land was quite unsuitable for housing development.
In February 1984 the inspector reported
on the objections to the local plan. He recommended that proposal 12c be
deleted and that the council should consider the provision of alternative open
space facilities in the vicinity of the Connaught School, that is to say in
another part of Bagshot. The inspector recorded in his report that the response
by the local planning authority to the objection to proposal 12c had included
this statement:
The site must be a strong contender for
inclusion as a housing release site although they [that is the council]
considered their open space proposal preferable.
In May 1984 the local authority produced
their list of proposed modifications to the local plan. It did not include any
modification of proposal 12c of the local plan; on the contrary, it rejected
the inspector’s suggestion that land at Connaught School should be used to
provide the necessary playing fields and open space. The borough council had
produced a corporate plan in April 1984. The county council had declared as
surplus to educational requirements a total of 12.28 acres which had originally
been set aside for the Connaught School. This area included the 5 acres at the
rear of the Connaught School included in the draft local plan as public open
space and part of the area already laid out as playing fields for the school.
The borough council now proposed to use this land for housing
sold by the county council to developers at full residential value in May 1985.
In June 1984 the recreation and amenities
committee noted the local plan proposals. Between June and September 1984 there
was correspondence between the borough council and the applicants concerning
acquisition by the council of the applicants’ land. In October 1984 the
committee noted that their offer to acquire the land had been rejected.
In April 1985 the local plan was adopted.
The applicants’ land was subject to proposals 8c and 12c Proposal 8c provided
that:
Within the area of open land and
countryside beyond the Green Belt, development will not normally be permitted,
except for the essential requirements of agriculture and forestry. In
considering planning applications for development within this area, the Borough
Council will also apply the following criteria —
. . .
4. Certain other developments, including
outdoor recreation facilities public or private institutional development
within large grounds and gypsy caravan sites may be appropriate or necessary in
the countryside beyond the Green Belt, but will not be considered acceptable
development as of right. The borough council will consider carefully the
justification for development proposals by government departments, local
authorities and statutory undertakers.
Proposal 12c read:
The area of land of 7.8 acres at College
Ride/Higgs Lane, Bagshot . . . is proposed for open space purposes.
In September 1986 the recreation and
amenities committee decided to proceed with the acquisition of the applicants’
land.
On March 27 1987 the borough council
wrote to the applicants’ solicitors referring to the recommendation that the
council make a compulsory purchase order for the acquisition of the land for
recreational purposes: that if the council were to make a compulsory purchase
order which were to be confirmed by the Secretary of State then the council
would have to pay the market value of the land; that that value would in turn
depend upon planning assumptions with regard to the land; pointing out that the
Land Compensation Act 1961, section 17, had introduced the mechanism of
certification of appropriate alternative development to enable the acquiring
authority to know what they are letting themselves in for before going ahead
with the compulsory purchase order. Then the borough council’s chief executive
wrote:
In order to operate this statutory
mechanism, the borough council must, under section 22, make an offer in writing
to negotiate for the purchase of the landowner’s interest . . .
In accordance, therefore, with the
procedure outlined above, I am now writing to offer, on behalf of the borough
council, to negotiate for the purpose of your clients’ land.
In September 1987 a further application
for residential development for the appeal site was made by Charles Church
Developments Ltd, which had and, as I understand it, still has an option to
purchase the applicants’ land. On December 17 1987 the borough council made
application for a certificate specifying playing fields/recreational use or
public open space as the classes of development which would be appropriate for
the land immediately if it were not proposed to be acquired by any authority
possessing compulsory purchase powers. The borough council’s grounds for a
certificate in those terms were:
(1)
to accord with the structure plan and local plan policies covering
countryside beyond the green belt; and
(2)
to afford extra playing field acreage which is badly needed in Bagshot
and has been so identified by the recreations and amenities committee and Local
Plan Proposal 12c.
The certificate was issued on March 14
1988 and certified that the planning permission would not be granted for any
development other than the development which was proposed to be carried out by
the council, that is to say as playing fields/recreational use or public open
space. The applicants appealed to the Secretary of State under section 18 of
the 1961 Act against that certificate and an inspector held a public inquiry on
those dates which I have indicated.
The inspector reported in June 1989 and
the Secretary of State’s decision was given on October 27 1989.
The inspector’s findings of fact
included:
(1)
No material change in the physical circumstances of the applicants’ land
had occurred between the early 1980s and 1989 other than that trees on the
western boundary had grown taller since the early 1980s.
(2)
The land would be physically suitable for an extension of the existing
recreation ground and could accommodate two sports pitches or their equivalent.
(3)
Residential development of the site could be carried out without any trees
subject to preservation orders being affected, although the hedge on the
eastern boundary would have to be removed.
(4)
Between March 1987 and January 1989 published statistics indicated that
there was a deficiency of land for housebuilding in Surrey Heath.
(5)
In April/May 1989 there was an 8 1/2-year supply of land for
housebuilding in the borough.
(6)
The existing outdoor playing space available in the borough and the
projected developments by 1991 more than met the minimum need for recreational land
recommended by the Sports Council. Taking Bagshot on its own, the requirement
of 4 to 4.5 acres per thousand of the population of formal pitches for adult
use set out in the 1986 review of the National Playing Fields Association’s
target was exceeded. To meet the National Playing Fields Association’s target
of 6 acres per 1,000 in two years’ time Bagshot would require 36 acres and
there were at the time of the inquiry only 23 acres available.
The inspector’s conclusions may be
summarised in this way:
(a)
In terms of its physical characteristics the land would be suitable for
use as open space and for residential development.
(b)
As no material change in the state of the land had occurred since 1980
the dispute as to the material date was of no consequence when considering the
characteristics of the land.
(c)
As the applicants’ land had never been identified for housebuilding, not
even as a contingency reserve in the local plan, then, if this had been an
appeal against the refusal of planning permission, in view of the weight to be
attached to up-to-date and relevant local plans the inspector would have no
hesitation in recommending that the appeal be dismissed.
(d)
The applicants’ submission to the inspector was that proposal 8c and
proposal 12c of the local plan were both creatures of the scheme underlying the
proposal to acquire the applicants’ land as public open space and must
therefore be ignored in considering the question of what certificate should be
issued.
(e)
The local planning authority’s submission was that the contribution of
the applicants’ land to the open break between Bagshot and Camberley and to the
rural character of this area on the fringe of Bagshot was sufficient to justify
the local planning authority’s objection to building on the land quite apart
from their scheme to see it used as public open space.
(f)
Cogent and convincing evidence had been adduced to show that the local
planning authority’s decision not to identify the certificate land as a site
for housing development was pre-determined by their wish first expressed before
the local plan process began to see it used as public open space.
(g)
The publication of a consultation draft of the local plan in 1982
involved a clear public statement of the local planning authority’s intention
to acquire the applicants’ land and it was highly probable that this intention
was an important reason why the document did not identify the applicants’ land
for housing development. However, the inspector went on to conclude that a
release of the land for development at that time would have been premature
because the local plan was at an early stage of evolvement.
(h)
There was nothing in the applicants’ contention that planning permission
for residential development would or should have been granted in 1983. On the
other hand the inspector considered it unlikely that the local planning
authority could justifiably have rejected the recommendation of the inspector
who considered the objections to the local plan that proposal 12c be revoked and
the applicants’ land designated for residential use in the absence of the local
planning authority’s open space proposal.
(j)
In the light of the 1983 decision and the recommendations of the
inspector who inquired into the local plan, it seemed to the inspector that if
an application for housing development had come to appeal during the period
between March 1987 and January 1989, when public statistics indicated a
shortfall in the supply of housebuilding land, it was very likely to have been
allowed.
(k) The special presumption in favour of
development which exists when housebuilding land is in short supply had ceased
to exist in April/May 1989 and any application for planning permission for
residential development on the applicants’ land at that time would be subject
to a presumption against development embodied in the development plan.
(l)
If the proposals of the local plan which apply to the site are regarded
as creatures of the scheme which underlies the proposal to acquire then those
principles must be disregarded. The inspector’s view was that the evidence
pointed to that interpretation.
(m)
The inspector’s final conclusion was:
Bearing in mind the enclosed nature of
the site and the fact that it is now cut off from Pennyhill Park both visually
and physically by the recreation ground, I share the opinion of previous
inspectors that it no longer makes an essential contribution to the maintenance
of the open gap between Bagshot and Camberley, and if proposal 8c of the local
plan is to be disregarded it follows in my view that the appellants are
entitled to a positive certificate. If that view is not accepted, I consider it
would be wrong to issue a positive certificate on the basis of speculation
about what quantities of housing land may need to be found in the future or
about what sites may be thought appropriate to meet the need.
Consequently the inspector recommended
that the appeal be allowed, the certificate cancelled and a new certificate
issued specifying that residential development of the land would be
appropriate.
The Secretary of State began his reasons
for this decision by stating, in my view correctly:
. . . section 17(7) of the 1961 Act
provides that a certificate may not be refused for a particular class of
development solely on the grounds that it is contrary to the provisions of the
relevant development plan. Also, the purpose for which the land is being
acquired, and indeed any purpose involving public acquisition of the land, must
be left out of account. Otherwise, the Secretary of State must have regard to
the state of the appeal land and its surroundings at the date of the written
offer to purchase it . . .
Then the Secretary of State went on to
say that he must have regard to the relevant planning policies current and
reasonably foreseeable at the present time, as the land had not yet been
entered. Here the Secretary of State was referring to October 1989. He cited
the case of Robert Hitchins Builders Ltd v Secretary of State for the
Environment (1978) 37 P&CR 140.
The Secretary of State referred to the
inspector’s acceptance that the relevant policies in the local plan had been
drawn up on the understanding that it was the council’s intention to acquire
the appeal land for recreational use and therefore these policies should be
left out of account being based on the scheme to acquire the land. The
Secretary of State agreed that, in considering the physical state of the land,
March 27 1987, the date of formal offer, was the correct time and that the
appeal site presented no significant physical obstacle to being used for
housing development. The Secretary of State took the view that the Hitchins
judgment gave clear guidance that the time at which planning policies (in which
the Secretary of State included the building land supply situation) should be
considered was the time that the Secretary of State was considering the matter,
ie October 1989. The Secretary of State went on to say:
. . . it is concluded that it would not
be appropriate to leave these policies out of account altogether as the
proposed acquisition of land for public open space purposes by a local
authority and the recognition of such an intention by the appropriate
allocation of that land in a local plan is a common practice and it is
considered that the provisions of section 17(7) of the Act make sufficient
allowance for such policies not to form the sole reason for refusal of, in this
case, a residential certificate. It is also concluded that to leave the
development plan policies out of account also ignores the possibility that the
general aims of these policies regarding the appeal land might have been
achieved by the use of the land for a private recreational use or, to a lesser
extent, by its simply remaining open and undeveloped.
4. The view is therefore taken that the
possible issue of a certificate specifying residential development of the
appeal land must be considered in the light of longstanding planning policies
aimed at maintaining the lands as open space use which have been supported on
appeal in the past, and, more particularly, in the face of the recently
identified situation of a supply of housebuilding land in the borough
sufficient for the next eight years.
The Secretary of State went on to cancel
the certificate issued by the local planning authority and to issue a new
certificate of appropriate alternative development, namely as private open
space or private open-air recreational use.
The submission of the Secretary of State
as to the relevant date is this: it is for the minister to consider whether to
confirm, vary or cancel a certificate of appropriate alternative development or
whether to issue a different certificate in its place, as he considers it
appropriate, under section 18(2) of the Act, either at the date when the
Secretary of State gives his decision or, if the acquiring authority have
entered upon the land, the date of entry on to the land or, if the acquiring
authority and the owners of the land have agreed a different date for the
assessment of compensation and that date precedes the date of the minister’s
decision, then that agreed date. In making that submission, Mr Griffiths,
counsel for the Secretary of State, relied upon the decision of Sir Douglas
Frank QC, sitting as a deputy judge of the High Court, in Hitchins. In
that decision Sir Douglas Frank started from the position that there was no
express provision in the Act for determining the date on which planning
permission might reasonably be expected to be granted, nor is there any obvious
implication. Section 17(4) appears to allow the local planning authority to
look at the situation when they consider whether to issue a certificate
although by subsection (5) they are entitled to look into the future. At p 146
of the report Sir Douglas Frank said:
Although section 22(2) is a definition provision
to determine dates, it only does so for the purpose of determining whether an
event has occurred that entitles the applicant to apply for a certificate.
However, even then the right to apply thereafter is a continuing right. The
section also provides a time for determining the development plan in force. It
is significant that there is no provision fixing a date for any other purpose.
The Secretary of State’s jurisdiction is similar to that of determining appeals
against refusals of planning permission where he takes the facts as they are at
the time of his determination. It seems nonsensical that, although the
Secretary of State is required to have regard to a likelihood of planning
permission being granted in the future, yet he should be blinkered as to
current evidence of that probability.
Then lower down the same page Sir Douglas
Frank went on to observe that the certificate procedure is of the utmost
importance to the Lands Tribunal, for without it they would have to carry out,
in effect, the purely administrative function of the Secretary of State in
deciding whether, as a matter of policy, planning permission might be granted,
and he observed that it was not fitting for a judicial body to have to do that.
A little later [at p 147] Sir Douglas Frank said:
Hence, the reliability of a certificate
will increase the nearer it is given to the date of entry or the date of
hearing, as the case may be.
It follows that a certificate given in
the light of planning policies applicable at the time more accords with the
scheme of the Act than one made at an antecedent date.
Sir Douglas Frank went on to consider the
authorities and in particular the case of Jelson Ltd v Minister of
Housing and Local Government [1970] 1 QB 243. He observed that at first
instance Browne J had decided the matter before the House of Lords decision in West
Midland Baptist (Trust) Association (Inc) v Birmingham Corporation
[1970] AC 874 had been decided. The effect of that case was that the date for
assessment of compensation was the date of the hearing before the Lands
Tribunal and not the date of the notice to treat. Sir Douglas Frank felt that
Browne J would have reached a different conclusion had he had the benefit of
the House of Lords decision in the West Midland Baptist case. Sir Douglas
Frank [at p 149] distinguished the decision of the Court of Appeal in Jelson’s
case (which was given after the Court of Appeal decision in the West Midland
Baptist case had been published) by saying that what the Court of Appeal
decided was that the land was to be taken in its existing state at whichever of
the three dates specified in section 22(2) of the Act applied:
What the Court of Appeal did not decide
was whether it was necessary that the Secretary of State should have regard
only to the planning policies operative on the date specified and not, as he
had contended, also to any policies extant at the time of making his decision.
Mr Griffiths went on to submit that
passages in the speech of Lord Bridge in the case of Grampian Regional
Council v Secretary of State for Scotland [1983] 1 WLR 1340* at p
1348A to H which, on their face, were contrary to this approach were explicable
on the basis that Lord Bridge was there dealing with the special facts in that
case, namely that the parties had agreed that the date of the authority’s offer
to purchase was to be the date for the assessment of compensation. Mr Griffiths
pointed out that, although Hitchins and Jelson were referred to
in argument before the House of Lords, Lord Bridge neither approved of the
decision in Jelson’s case nor disapproved of the decision in Hitchins’
case. Had the case of Hitchins not been correctly decided then Lord
Bridge would have said so.
*Editor’s note: Also reported at (1983)
271 EG 625, [1984] 2 EGLR 175.
Mr Griffiths submitted that this
interpretation is consistent with the provisions of section 15(5) of the Act,
which is one of the sections setting out the assumptions which have to be made
by the Lands
and which provides that, where a certificate has been issued under Part III of
the Act, it shall be assumed that any planning permission which according to
the certificate would have been granted if the land were not proposed to be
acquired by the authority possessing compulsory purchase powers would be so
granted but if any future time is specified in the certificate for the grant of
such a permission then such a permission would be granted only at that time. Mr
Griffiths made a similar point on the amended third subsection of section 17,
which contains the phrase ‘either immediately or at a future time’ in the
requirement that an application for a certificate under section 17 shall state
whether there are, in the applicant’s opinion, any classes of development which
would be appropriate for the land in question if it were not proposed to be
acquired by any authority possessing compulsory purchase powers.
It was also argued in support of this
submission that the wording of section 18(2) of [the] Act, under which the
minister considers appeals against certificates issued under section 17 in
requiring that the minister should consider matters ‘as if the application for
a certificate under section 17 of [the] Act had been made to him in the first
instance’, was a clear indication that the minister should consider the facts
existing at the moment he was hearing and deciding the appeal. It was accepted
that the minister was obliged to look at the physical condition of the land in
question as at the date of the notice to treat or the deemed notice to treat
because the rules of compensation in Part II of the Act provided that physical
changes in the condition of the land after the notice to treat or the deemed
notice to treat were to be ignored.
It may be that I have not done justice to
the submissions advanced by Mr Griffiths on behalf of the Secretary of State on
this first issue. Nevertheless, I am persuaded by the submissions of Mr Purchas
on behalf of the applicant that the Secretary of State misdirected himself when
he wrote:
Otherwise, the Secretary of State must
have regard to the state of the appeal land and its surroundings at the date of
the written offer to purchase it, as discussed further below, and to relevant
planning policies current and reasonably foreseeable at the present time, as
the land has not yet been entered.
The first reason for my conclusion is
that it seems to be more elegant if, when deciding an application under section
17 of the Act, both the physical condition of the relevant land and the
planning policies should be looked at as at the same date. A much more
important reason is the interpretation of the words of the statute itself.
Section 17(3) requires that an application for a certificate ‘shall state
whether or not there are, in the applicant’s opinion, any classes of
development which, either immediately or at a future time, would be appropriate
for the land in question if it were not proposed to be acquired by any
authority possessing compulsory purchase powers’. Subsection (4) requires the
local planning authority to say either that planning permission for development
for one or more classes specified in the certificate would have been granted
were it not for the fact that the authority proposed to acquire the land or
that planning permission would not have been granted for any development other
than the development which the authority proposed to carry out. Thus, on a
reading of subsections (3) and (4) of section 17 the local planning authority
are obliged to look back, on a literal reading, to the moment immediately after
the application for the certificate is made as well as to what might happen in
the future.
This very point was considered by the
Court of Session in Scotland in the Grampian case 1984 SC 1. In that
case Lord Dunpark and Lord McDonald held that the relevant date when
considering the granting of a certificate under section 17 was the date ‘of the
proposal to acquire the land’. The date of the proposal to acquire the land
would be whichever of the three dates in section 22(2) of the Act applied to
the facts of the particular case. Lord Dunpark at p 17 said this (I have
inserted the section numbers in the English Act to avoid giving the different
numbering of the Scottish Act):
(Section 22(2)) introduced three
different dates for the proposal to acquire, the date of the proposal being
dependent upon the procedure adopted by the acquiring authority. This
subsection has not been amended. I cannot believe that Parliament intended by
this amendment to (section 17(3)) to cast these dates aside and to introduce
another arbitrary date as the relevant date. This is the result of a literal
reading of the word ‘immediately’ in (section 17(3)). A literal reading of the
word would require the applicant to state the classes of development for which
planning permission would have been granted at the date of his application or
at a future time.
The submission for the appellants was
that, as a result of the amendment, the planning authority must now certify the
classes of development for which planning permission would have been granted at
the date of the application. Apart from the word ‘immediately’ in (section
17(3)), there is absolutely no indication in the Act as amended that Parliament
intended by the introduction of this word to make the radical and nonsensical
change of substituting the date of the application, or some later date, for the
date of the offer to purchase. In my opinion, Parliament failed to appreciate
the use of the word ‘immediately’ in this context construed in this way. In
that situation common sense requires ‘immediately’ to be construed as
‘immediately after the relevant date’, that date being in this case the date of
the proposal to acquire. It is the proposal to acquire which in the terms of
(section 17(1)) gives the party with the interest in land the right to apply
for a (section 17(4)) certificate. ‘Immediately after the relevant date’ is the
only construction which results in the terms of the certificate more or less
coinciding with the date of entry at which the market value of the land would
have to be assessed.
Lord McDonald expressed a similar view at
pp 23 to 24.
When the Grampian case reached the
House of Lords, Lord Bridge [1983] 1 WLR 1340 at p 1348A said:
The appellants, however, sought to raise
a further question as to what is the relevant date by reference to which an
application for a certificate under (section 17) should be decided and on which
permission for the certified development, if the certificate does not specify a
future time, will be assumed to have been granted under (section 15(5)). The
submission for the appellants is that the relevant date is the date of the
application under (section 17). The Secretary of State and the majority of the
Court of Session have held that it is the date when the land is first ‘proposed
to be acquired by an authority possessing ‘compulsory purchase powers” in
accordance with the definition of that formula in (section 22(2)). If that is
right, it means that the relevant date in relation to each school site is the
date of the education authority’s offer to purchase, which is also the date for
assessment of compensation.
Having concluded that the availability of
alternative school sites is irrelevant, it seems to me that the point as to
date, in the circumstances of this case, is entirely academic, since the
applicants are unable to suggest that there was any change in planning
authority policy or other material change of circumstances between the dates of
the offers to purchase and the date of the application for certificates.
However, since the point was argued, it is right to express an opinion about
it.
The words ‘either immediately or at a
future time’ were introduced into (section 17(3)(a)) of the Act by the
Community Land Act 1975. It seems to have been suggested to the Court of
Session that they changed the previous law. Counsel before your Lordships
disclaimed this suggestion, but relied on the word ‘immediately’ as emphasising
what he submitted the law had always been. The applicant for a certificate,
counsel points out, is, and always has been, required to specify the classes of
development which, he claims, ‘would be appropriate for the land in question if
it were not proposed to be acquired by any authority possessing compulsory
purchase powers’. Counsel submits that the words ‘would be’ can only refer to
the present, not to the past. That is the beginning and the end of his
argument. Here again, consideration of the scheme of the Act shows the argument
to be fallacious. The purpose of the certificate is solely as an aid to the
assessment of compensation. Unless it is effective to indicate what planning
would have been granted at or before the date when compensation falls to be assessed
or at some future time specified in the certificate, it will not serve that
purpose effectively. In agreement with Lord Dunpark, I consider that the
submission for the appellants on this point leads to a nonsensical result.
It follows that Lord Bridge was approving
the reasoning of Lord Dunpark which I have set out, namely that the word in
section 17(3) ‘immediately’ means ‘immediately after the relevant date’, which
in turn means ‘immediately after the proposal to acquire’ — that is to say
whichever of the three facts in section 22(2) applies. The references in
sections 17(3) and (5) to ‘a future time’, in my judgment, mean no more than a
future time as seen at the relevant date. Those provisions enable the local
planning authority, or on appeal the minister, to say that as at the date of
the notice to treat or the deemed notice to treat, although at that moment
there might not have been an appropriate alternative development for the land
as looked at at that date, a class of development would have become appropriate
at some future time.
This interpretation seems to be
consistent with the provisions of section 22(3) of the Act, which provide that,
for the purpose of determining whether an application can be made under section
17(1), any reference in section 17(1) to the development plan should be
construed where there has been a notice to treat as being the date of the
service of the notice to treat, or where there has been a contract, at the date
of that contract. If neither of those matters have occurred then it is to be
the date of the application for the certificate. It would be odd if the issue
of determining whether the application could be made under section 17(1) was to
be determined by a reference to one development plan and a question whether a certificate
under section
determined by looking at a different development plan.
Further, if the construction for which
the Secretary of State contends were to be the true construction then one might
have expected Parliament in section 17(4) to have used the words ‘would be
granted’ and not the words ‘would have been granted’.
The other consequence of Lord Bridge’s
observations, it seems to me, is that the Court of Appeal’s decision in Jelson’s
case cannot be said to have been overruled. The decision of the Court of Appeal
turned on the wording of section 17(4) ‘if it were not proposed to be acquired
by any authority possessing compulsory purchase powers’. Lord Denning MR [1970]
1 QB 243 at p 251 said:
That definition shows that the word
‘proposed’ refers to the proposal contained in an actual or deemed notice to
treat or in an offer to purchase. That gives a good clue to the date of
the proposal. It is the date of the actual or deemed notice to treat or of the
offer to purchase, as the case may be.
. . . the planning authority must form an
opinion as to what planning permission might reasonably have been expected to
be granted at the date of the actual notice to treat, or the deemed
notice to treat, or the offer to purchase, as the case may be.
Sachs LJ, without enthusiasm and not
without hesitation, and Phillimore LJ agreed with Lord Denning.
Mr Purchas, for the applicants, submits
that that Court of Appeal decision has not been overruled. The amendments to
section 17 do not affect that approach to the interpretation of Part III of the
Act. Thus I am bound by that decision of the Court of Appeal and should follow
it. Mr Purchas points out that Sir Douglas Frank attached considerable
importance to what he believed the decision of Browne J would have been had the
West Midland Baptist case been decided before Browne J gave his
judgment. Mr Purchas submits that it is not the putative view of what Browne
J’s decision might have been which is important but the clear and unambiguous
decision of the Court of Appeal given after the West Midland Baptist
case had been decided by the Court of Appeal.
I accept those submissions.
As Mr Purchas also pointed out, this
approach to Part III of the Act avoids injustice which would otherwise arise in
the present case, namely that in a ‘no scheme world’ the land at the date of
the notice to treat or the deemed notice to treat would probably have been
suitable for housing development and, but for the scheme, would have received
planning permission for that purpose, which in the real world would have
continued with the land and would not have been invalidated by the changed
position with regard to the stock of building land in January 1989. If in granting
a certificate of appropriate alternative development the local planning
authority or the minister and later, in determining the value of the land, the
Lands Tribunal are to perform their functions in the ‘no scheme world’ then
they ought, submits Mr Purchas, to take account of the rule that the planning
permission, once granted, runs with the land. Whether one day that will enable
owners of land to argue that the notional granting of planning permission on
dates earlier than the notice to treat or the deemed notice to treat should be
considered must remain for another case. The applicants do not have to mount
such an argument in the present case and it is sufficient for them to submit
that the relevant date which the Secretary of State should have applied when
considering planning policies was March 27 1987.
Again, I accept that submission.
The second issue is whether the Secretary
of State misdirected himself when he concluded:
. . . that it would not be appropriate to
leave these policies [that is policy 8c and 12c of the local plan] out of
account altogether as the proposed acquisition of land for public open space
purposes by a local authority and the recognition of such an intention by the
appropriate allocation of that land in a local plan is a common practice and it
is considered that the provisions of section 17(7) of the Act make sufficient
allowance for such policies not to form the sole reason for refusal of, in this
case, a residential certificate.
Mr Griffiths submitted that there was no
dispute as to the findings of fact. He told me that the Secretary of State had
proceeded on the same basis, namely those facts found by the inspector. It was
a difference of approach. The inspector had disregarded policies 8c and 12c
whereas the Secretary of State had taken them into account and in doing so had
reached a different conclusion from the inspector, but a conclusion the
inspector would have reached had he taken policy 8c into consideration.
This approach, argued Mr Griffiths, was a
correct interpretation of section 17(7) of the Act and in particular of these
words in that subsection:
. . . shall not treat development of that
class as development for which planning permission would have been refused by
reason only that it would have involved development of the land in question . .
. otherwise than in accordance with the provisions of the development plan
relating thereto.
Mr Griffiths relied upon the decision of
Griffiths J, as he then was, in the case of Skelmersdale Development
Corporation v Secretary of State for the Environment [1980] JPL 322.
That decision had been referred to and accepted by Lord Bridge in the Grampian
case, submitted Mr Griffiths, and Lord Bridge in his speech had been careful to
use language which left open the possibility of the policies underlying the
scheme for compulsory acquisition remaining a ground for withholding a positive
certificate of appropriate alternative development provided they were not
treated in themselves as being a sufficient reason for refusal or, put another
way, they were not the sole grounds for withholding a positive certificate. Mr
Griffiths referred me in particular to a sentence in Lord Bridge’s speech at p
1345F:
If the planning need to use land for a
public purpose, which underlies a proposed compulsory acquisition, is not a
sufficient ground to withhold a positive certificate where that need is
recognised and provided for in the development plan, I do not see how the
underlying planning need can ever be such a sufficient ground.
Then at p 1346C:
The appellants have sought support for
their arguments in three decided cases to which I should briefly refer. In Bell
v Lord Advocate 1968 SC 14, Glasgow Corporation acquired 40 acres of
land as public open space. The land was allocated for that purpose in the
development plan. The landowner sought a certificate under (section 17) for
industrial, commercial or residential development. The certificate issued by
the planning authority and affirmed by the Secretary of State on appeal was
limited to development ‘for a commercial sports stadium, private golf course,
private playing fields or for other private open air recreational use’. This
was challenged in the Court of Session as a contravention of (section 17(7)). The
court affirmed the decision of the Secretary of State. As I understand the
judgments, the court upheld the reasoning of the Secretary of State on the
footing that he was not merely relying on the provision of the development plan
as a ground for refusing to certify the kind of building development sought by
the landowner, but on a planning policy to keep the 40 acres in question as
open space substantially free from building development, which could be
supported on planning grounds quite independently of any scheme for acquisition
of the land as public open space. So understood, I respectfully agree with the
decision and can find nothing in it to assist the appellants in this case.
Mr Griffiths attached particular
importance to the words ‘quite independently of any scheme’ in that passage of
Lord Bridge’s opinion.
I reject those submissions in this case.
In my view, what Lord Bridge was deciding in the Grampian case (and the
remaining members of the House of Lords all agreed with Lord Bridge) is
abundantly clear as appears in his lordship’s comments on the Skelmersdale
case at p 1346G, which were:
Here again, the essential ground on
which, as I read his judgment, Griffiths J refused an application to set aside
the decision of the Secretary of State was that it was based on a planning
policy which justified the preservation of the site as part of a larger area of
substantially open land, independently of any scheme to use it for educational
purposes. I do not think the judgment lends any support to the proposition that
the educational requirement in itself could afford a ground for the issue of a
negative certificate. If it does, I must, to that extent, respectfully disagree
with it.
Under section 17(4) either a negative
certificate has to be issued or a positive certificate to the effect that there
was an appropriate alternative development for this land but for the fact that
the authority possessing compulsory purchase powers were proposing to acquire
it. The whole purpose of Parts II and III of the Act is to achieve the result
that where a public authority acquired land using compulsory purchase powers
for a purpose which will benefit the public generally, or a section of the
public, an unfair proportion of the cost of achieving that public purpose is
not put upon the owners of the land being acquired. Thus if, but for that
public purpose, it would have been appropriate for the land to be developed in
an alternative way, the price payable for the land is to be the price payable
for land with that development potential. It is now clearly established that
not only the proposal by the public authority to acquire the land compulsorily
must be ignored but also the planning policies which underlie such a proposal.
The provision which requires the proposal of the authority possessing
compulsory
Act is supplementary to subsection (4). It provides that a certificate under
section 17(4)(a) is not to be withheld because the provisions of the development
plan do not permit the alternative development which the applicant for the
certificate claimed to be appropriate. Nevertheless, if independently of the
provisions of the development plan and disregarding the scheme of the acquiring
authority, the alternative development advanced by the applicant is and will
remain inappropriate for that land, and the evidence indicates that planning
permission for any development other than that proposed by the acquiring
authority would not be granted, a certificate can be issued under section
17(4)(b). Although the person deciding what type of certificate to grant
must not treat the policies of the development plans as being decisive, he does
not have to ignore the true planning characteristics of the land.
This was the situation in the present
case while the green belt policies could be applied to the applicants’ land and
while it could be said that the applicants’ land was making a significant
contribution to the wedge of open land between Camberley and Bagshot. Once
those policies no longer applied to the applicants’ land the effect of section
17(7) was that the local planning authority and, on an appeal, the Secretary of
State should not treat the residential development of the applicants’ land as a
type of development for which planning permission would have been refused
simply because it involved development of the land otherwise than in accordance
with policies 8c and 12c.
That still left the question whether
there was any other independent reason for treating residential development as
being a development for which planning permission would have been refused. Mr
Griffiths valiantly tried to argue that there were additional reasons, the
first being the long-standing policies aimed at retaining the land for use as
open space. But those were policies 8c and 12c which the inspector had found
were creatures of the scheme underlying the proposal to acquire. Mr Griffiths
relied, second, on the fact that those policies had been supported on appeal.
The accuracy of that statement is doubtful. However, if the policies have to be
disregarded I cannot see how they can be brought back into play by the fact
that they may in the past have been supported on appeal. Third, Mr Griffiths
relied on the fact that the borough council had sufficient building land for
the next eight years. That is another way of raising the date point which I
have already decided against the Secretary of State’s interpretation.
Section 17(4) requires a local planning
authority or, on appeal, the minister to look at the position on the assumption
that there was no scheme by the public authority to acquire the land for a
public purpose by way of compulsory purchase.
On the findings of fact made by the
inspector, and accepted by the Secretary of State, if the matter is looked at
as on March 27 1987, and if the scheme for the borough council to acquire this
land to extend the recreation ground and the policies underlying that scheme
are ignored, then the inspector’s conclusion that residential development would
have been an appropriate alternative development for this land at that time
seems to be inescapable. The inspector has found that policies 8c and 12c
underlaid that scheme. That finding is accepted by the Secretary of State.
Consequently I quash the decision of the
Secretary of State and remit the matter to him with a direction that he
consider the question of whether to issue to the applicants a certificate under
section 17(4)(a) or under section 17(4)(b) by looking at the
state of the applicants’ land and the planning policies and circumstances as on
March 27 1987 and disregarding the Surrey Heath Borough Council’s scheme to
acquire this land for recreational open land purposes and in particular
disregarding policies 8c and 12c in the local development plan.
The applicants were awarded the costs of
the application. Leave was granted to the Secretary of State to appeal, if
leave were necessary.
