Offer to purchase under section 22 of the land Compensation Act 1961 — Housing shortfall at date of written offer — Planning policy change at date of determination of appeal against certificate of appropriate alternative development — Whether date of deemed notice to treat or offer relevant date — Whether development plan policies to be disregarded
The applicants are the owners of a 7-acre site north of Bagshot, Surrey. Although the subject site was outside the green belt boundary prescribed by the 1980 Surrey structure plan, the 1985 Surrey Heath local plan retained proposals that the site should be used for recreational purposes. In March 1987 the second respondents, Surrey Heath Borough Council, made an offer to purchase the site. Pursuant to section 22 of the Land Compensation Act 1961, the provisions of section 17 of the Act became applicable and the second respondents applied for a certificate of appropriate alternative development specifying playing fields/recreational use or public open space as the classes of development. The applicants appealed the certificate, which had certified that no development other than that specified by the second respondents would be appropriate. The inspector concluded that by reason of the shortfall of housing land between March 1987 and January 1989 an application for planning permission during this period would have been allowed. However, his recommendation that the appeal be allowed was not accepted by the Secretary of State who cancelled the existing certificate and issued another certifying that private open space or private open air recreational use was appropriate alternative development.
The applicants applied to quash that decision on the grounds, inter alia, that the Secretary of State had identified the wrong date in considering planning policies relevant at the time of his decision in October 1989 and that he was not justified in not discounting the scheme underlying the proposed acquisition.
Held The application was allowed.
1. Section 17(3)-(4) of the 1961 Act requires the local planning authority (and the Secretary of State on appeal) to determine whether or not planning permission would have been granted for development for one or more specified classes “immediately or at a future time”. The word “immediately” means immediately before the proposal to acquire, that is whichever of the three facts in section 22(2) is applicable. The reference to a future time means no more than a future time as seen at the relevant date. Accordingly, planning policies applicable in March 1987, when there was a shortfall in housing land, should have applied.
2. The effect of section 17(7) of the 1961 Act is that the local planning authority (and the Secretary of State on appeal) should not treat the residential development of the subject site as a type of development for which permission would have been refused simply because it involved development of the land otherwise than in accordance with the recreational and open space policies in the local plan.
Grampian Regional Council v Secretary of State for Scotland (1983) 271 EG 625 applied.
Robert Hitchins Builders Ltd v Secretary of State for the Environment (1979) 251 EG 467 not followed.
Robin Purchas QC and Timothy Comyn (instructed by Merriman White) appeared for the applicants; and Robert Griffiths (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment. The second respondents, Surrey Heath Borough Council, did not appear and were not represented.