Town and country planning — Blight notice — Counternotice — Town and Country Planning Act 1990 — Paras 3 and 4 of Schedule 13 — Whether property ‘allocated’ or ‘indicated’ for transport purposes
By a lease,
the claimant trustees hold the unexpired term of 1,000 years, from June 30
1848, of premises constructed as a cinema. The 1991 unitary development plan
contained a policy for the extension of the Manchester metrolink system. In
1993 the deposit draft unitary development plan contained a similar policy. In
July 1995 the claimants served a blight notice. The respondent passenger
transport executive served a counternotice under section 151(4)(a) of the Town
and Country Planning Act 1990 to the effect that no part of the hereditament
was blighted land. In December 1996 the respondent gave notice to the claimants
under the Transport and Works Act 1992 that it was applying for an order
authorising the compulsory purchase of, inter alia, the property. The
claimants referred the blight notice, and the objection to it, to the Lands
Tribunal, contending that the respondent’s proposals envisaged that the subject
property would be required for the metrolink extension as a station was to be
built on the site.
property was blighted, in colloquial terms, it was not legally blighted.
Neither the wording of the metrolink extension policy in the deposit draft
unitary development plan or the proposed changes thereto, nor of its
justification, mentioned the subject property. The respondent’s consultation
exercise, which showed the property as a tram station, blighted the property,
not the provisions of the unitary development plan. The categories of blighted
land are precisely defined in Schedule 13 to the 1990 Act. The claimants had
not shown that the provisions of the unitary development plan gave any
indication that the subject property was required for the respondent’s
purposes.
The following
cases are referred to in this report.
Bolton
Corporation v Owen [1962] QB 470; [1962] 2
WLR 307; [1962] 1 All ER 101; (1962) 61 LGR 7, CA
Elcock
v Newham London Borough Council (1996) 71
P&CR 575; [1996] 2 EGLR 137; [1996] 44 EG 183; [1996] RVR 151, LT
Ian Foster
(instructed by Grovers, of Hale) appeared for the claimants; Edward Denehan
(instructed by Pannone & Partners, of Manchester) represented the
respondent.
Giving his
decision, MR M ST J HOPPER
said: This is a reference to determine whether or not a counternotice served by
Greater Manchester Passenger Transport Executive (the respondent) to a blight
notice served by Thomas Jones, Douglas Firkin-Flood, Freda Firkin-Flood and
Michael Jeffrey Field (the claimants) under section 150(1) of the Town and
Country Planning Act 1990 (the 1990 Act) in respect of 7 and 9 Ashton Road,
Droylsden, Tameside (the subject property), was well founded.
Mr Ian Foster
appeared for the claimants and Mr Edward Denehan appeared for the respondent.
Reports had been delivered by Robert L Jackson msst for the claimants and Peter Richard Higham frics for the respondent, but neither
was called to give evidence.
I find the
following facts:
1. The subject
property was originally constructed as a cinema, which had been converted for
use as a café and amusement arcade on the ground floor and a snooker club and
offices on the first floor. It fronts Ashton Road (A662) in the town centre of
Droylsden.
2. The subject
property is let on a lease for 1,000 years from June30 1848. The claimants, who
are trustees of the pension fund of First House Leisure Group, purchased the
lease in June 1993.
3. At all
material times the subject property has been unoccupied.
4. In November
1991 Tameside Metropolitan Borough Council (the council) published a
consultation draft of their unitary development plan (the UDP). It contained
policy T9 under the heading ‘Light Rapid Transit’. This stated:
The council
will, in association with the Greater Manchester PTA and subject to the
conclusion of current feasibility studies, identify and protect routes for
future expansion of the Metrolink system, from the Manchester boundary to
Audenshaw, Ashton and Stalybridge, or along other corridors which may be the
subject of further investigation.
5. In January
1993 the council published a deposit draft UDP. This contained policy T12,
which, under the heading ‘Light Rapid Transit’, stated:
The council,
in association with the GMPTA and subject to the conclusion of current
feasibility studies, will protect existing railway land for future expansion of
the Metrolink system, from the Manchester boundary to Audenshaw, Ashton and
Stalybridge, and from Audenshaw to the Derbyshire boundary on the Glossop line.
6. In
September 1993 the council published proposed changes to the deposit draft UDP,
including a change to policy T12. The change proposed under the heading
Metrolink Extension was:
The council,
in association with the Greater Manchester Passenger Transport Executive and
subject to the conclusion of feasibility studies, will support in principle the
development of an on-street extension of the Manchester Metrolink Light Rapid
Transport System into Tameside to Ashton-under-Lyne.
Transportation,
traffic management and planning design studies within the proposed LRT
corridor, and a full investigation of route options between North Drive,
Audenshaw and Ashton town centre, will be required prior to any final decision
on the precise layout of the scheme.
In the
meantime, the council will protect existing surplus railway land alongside the
Manchester to Glossop line, from the Manchester boundary to the crossing of the
Denton to Ashton Moss line, so as to keep open the possibility of an
alternative alignment for a Metrolink extension into Tameside.
7. Between
January 18 and June 14 1994 an inspector of the Department of Environment held
a public local inquiry into objections to the deposit draft UDP. On January 12
1995 he recommended a modification of policy T12.
8. On July 17
1995 the claimants served a blight notice upon the respondent, which stated
that the subject property was blighted within paras 1, 2, 3 and 4 of Schedule
13 to the 1990 Act (hereafter shortly referred to as Schedule 13).
9. On
September 15 1995 the respondent served a counternotice under section 151(1) of
the 1990 Act objecting to the blight notice on the ground that ‘no part of the
hereditament to which the notice relates is comprised in blighted land’.
10. In
November 1995 the council accepted the inspector’s recommendation as to the
modification of policy T12 in the deposit draft UDP and in September 1996 the
council adopted the UDP. The adopted plan contained a revised policy T12,
which, under the heading ‘Light Rapid Transit’, stated:
The council,
in association with the Greater Manchester Passenger Transport Authority, will
support in principle the development of a partly on-street extension of the
Manchester Metrolink Light Rapid Transit (LRT) system into Tameside to
Ashton-under-Lyne, via Droylsden and Audenshaw.
Transportation,
traffic management and planning design studies will be required prior to any
final decision on the route and precise layout of the scheme.
11. On December
10 1996 the respondent gave notice to the claimants under the Transport and
Works Act 1992 that it was applying under section 6 of that Act for an order
under section 1, authorising the compulsory purchase of, inter alia, the
subject property.
Issue
The sole issue
in this reference is whether the respondent’s counternotice was well founded
within the meaning of section 153(3) of the 1990 Act, which turns on whether or
not, at the date of the counternotice, the subject property comprised blighted
land within the meaning of para 1(3) and (4) of Schedule 13.
Evidence
Expert reports
were submitted by both parties, but, in the event, neither expert was called to
give evidence, although reference was made to a proof of evidence and a
supplement thereto prepared by Peter Richard Higham frics for the respondent.
Claimants’
submissions
On behalf of
the claimants Mr Foster traced the history of their purchase of the subject
property and the preparation of the UDP. At the time of the consultation draft
it was known that the eastern extension of the Metro would be on British
Railways’ tracks. At the date of the blight notice, the proposed changes to the
deposit draft UDP had referred to ‘Metrolink Extension’.
The
respondent’s proposals envisaged that the subject property would be required
for the extension; a proposed new station was to be built on its site.
From September
1993 the claimants had made attempts to sell the subject property at a price of
£95,000; offers had been received, but they fell through due to the respondent’s
proposals.
The inspector
recommended a change in UDP policy T12 in his report published on January 12
1995. Mr Higham produced a relevant extract.
Mr Foster
referred to the service of the blight notice and the counternotice, the only
point of option taken in the latter was that the subject property was not
blighted land. He referred to the council’s acceptance of the inspector’s
recommended modification to policy T12 and the respondent’s notice of December
10 1996. The subject property was now plainly blighted under para 23(c) of
Schedule 13.
As at the date
of the counternotice the subject property was blighted, because it was
indicated in the deposit draft UDP as being required for the respondent’s
functions. Under section 262(1) of the 1990 Act the respondent fell within the
definition of statutory undertaker and the requirements of para 3 of Schedule
13 were therefore fulfilled.
In support of
the submission that the deposit draft UDP indicated that the subject property
was required for the respondent’s functions, Mr Foster referred to the town
centre inset plan, upon which was shown in yellow colouring a ‘transportation
scheme’. The subject property was not so coloured, but the map was but one part
of the plan, which, in accordance with section 12 of the 1990 Act, was in two
parts, and the statement referred to a public consultation exercise; nothing
had changed as to the respondent’s intentions for the site of the subject
property since.
The inspector
had recommended modifications to the relevant policy in the deposit draft,
because the respondent’s proposals were not finalised. He was probably aware of
the problems that would arise if the relatively detailed wording in the
council’s proposed changes to the deposit draft remained.
Since September
1993 difficulties had been occasioned, due to the council’s proposed changes to
the relevant policy in the deposit draft, and the publicity given to the
proposals. As a result the subject property had since been blighted.
Mr Foster
submitted that the subject property was indicated in the wording of the
relevant policy in the deposit draft UDP, which referred to published
proposals. He was not producing those proposals, but they had never changed
subsequently; the subject property formed part of the site of a proposed
station.
Respondent’s
submissions
On behalf of
the respondent, Mr Denehan said he was not accepting that the claimants had
made failed efforts to sell the subject property, but the blight notice had
been made on grounds set out in paras 1, 2, 3 and 4 of Schedule 13. The
claimants now relied on paras 3 and 4 and he assumed that they had abandoned
paras 1 and 2. Mr Foster agreed that this was indeed the case and confirmed
that the claimants relied on evidence of the UDP proposals set out in Mr
Higham’s documents.
Mr Denehan
referred to the relevant statutory provision. The respondent relied upon its
objection under section 151(4)(a) of the 1990 Act, ie no part of the relevant
hereditament was blighted land; 7 and 9 Ashton Road was the hereditament and it
was not blighted.
Mr Denehan
referred to section 151(3)(a) and (b) of the 1990 Act; this placed the burden
of proof upon the claimants to show that the respondent’s objection was not
well founded.
Paras 3 and 4
of Schedule 13 referred to land; there was a need to establish that the subject
property was land within the provisions of those paragraphs; the relevant date
was September 15 1995. The respondent had no doubt that in a colloquial sense
the subject property was blighted, but this was not good enough. There was a
need to establish that it was blighted in the terms of Schedule 13, ie legally
blighted.
Mr Denehan
referred to Bolton Corporation v Owen [1962] QB 470, in which the
main issue was whether it was the local authority who were going to redevelop,
but he relied upon extracts from the decision of Lord Evershed MR who said:
This area
covers some 250 acres and the average number of persons per acre is indicated.
That, however, is not the whole of the plan, though I would observe that if the
claimant’s argument is right, it would follow that substantially all the area,
which is marked as being intended for residential purposes, would be liable to
be the subject of notices by owners comparable to that which the claimant in
the present case has given.
If the
claimants were right in the present case, every property owner along Ashton
Road could serve a blight notice.
Lord Evershed
had also said:
The first is
(and this is the one here invoked) ‘(a) that no part of the hereditament
… to which the notice related is comprised in land of any of the specified
descriptions’, that is, falls within any of the lettered paragraphs in section
39(1).
— and —
It is
important to note that there are these different grounds of objection because,
according as the objection is founded on one or other of the grounds, so the
onus of satisfying the Lands Tribunal may differ. Section 41(1) provides for
the matter of a counter-notice objecting to a notice being referred to the
Lands Tribunal by a claimant; as this claimant referred this case. Subsection
(2) of section 41 provides: ‘On any such reference, if the objection is not
withdrawn, the Lands Tribunal shall consider the matters set out in the notice
served by the claimant and the grounds of the objection specified in the
counter-notice; and, subject to the next following subsection, unless it is
shown to the satisfaction of the tribunal that the objection is not
well-founded, the tribunal shall uphold the objection.’ Subsection (3),
however, states: ‘An objection on the grounds mentioned in paragraph (b)
or paragraph (c) of subsection (2) of the last preceding section shall
not be upheld by the tribunal unless it is shown to the satisfaction of the
tribunal that the objection is well-founded.’
— and —
In the case
with which we are concerned, where the objection is founded on the challenge of
the claimant’s assertion that his land falls within paragraph (b) of
section 39(1), the onus is on the claimant, in this case on the claimant, to
establish the negative proposition, to establish that the objection is not well
founded. That must mean in the present case clearly that it was for the
claimant here, the respondent, to make good the essential allegation in his
notice that this house of his, No 4, Wentworth Street, fell within either the
first or the second part of paragraph (b) of section 39(1).
The case
related to the blight provisions in the Town and Country Planning Act 1959 and
they could be compared with the provisions of section 153(3) of the 1990 Act.
Last, in
relation to the Bolton case, Mr Denehan cited a further passage from the
judgment of Lord Evershed as follows:
I read it so;
and the only question in the end of all, then seems to me to be this: Can you
say in this development plan, including the written statement, that the proper
conclusion to draw from the plan as a plan is that it is saying, as regards all
this land indicated for residential purposes and covered by the paragraph (b):
Redevelopment areas, that the Bolton Corporation will in fact exercise and
intends to exercise in regard to the whole of that area, every square yard of
it, its powers? Or is the inference that it may do as to some parts,
particularly slum clearance areas perhaps, but as to others the matter may be
left for private enterprise? If that be the question, then for my part I think
it impossible, confining myself to the material which alone can properly be
looked at, to say that it is the first and not the second which is the correct
alternative. It is at this point that I think the onus being on the claimant is
important. It might be said to be departing from a finding of fact by the
tribunal, but when the tribunal says: I think it obvious that in practice this
area could and would only be redeveloped, that is the whole of it, by the
exercise of their functions by the local authority, that is not a finding of
fact: it is a forecast: it is a conjecture: it is a statement by the tribunal
that, having regard to the decrease in the population after redevelopment, the
tribunal draws the inference that what is proposed will only be achieved if the
local authority hereafter exercise statutory powers as to the whole of the
area. But, with all respect to the tribunal, that is not, as it seems to me, a
proper interpretation of what the development plan says. Having regard to the
particular words used in the plan, and particularly in the Act, I find it
impossible to say that this plan has ‘allocated’, in the sense of designation,
for the express and specific purpose of the exercise in regard to the whole of
it of statutory powers by the local authority.
It was not
enough to say that it was obvious from other things that 7 and 9 Ashton Road
was to become a tram station. It was a conjecture and Mr Denehan relied upon what
Lord Evershed had said as to what ‘allocated’ meant.
In Elcock
v Newham London Borough Council (1996) 71 P&CR 575* the relevant
property had, in layman’s terms, been blighted, but the tribunal had held that
it was not enough that the property was blighted in colloquial terms. In its
decision the tribunal had said:
*Editor’s
note: Also reported at [1996] 2 EGLR 137
This appeal
arises from a reference by the claimants under section 153 of the 1990 Act to
determine whether the counternotice served by the respondent to the claimants’
purchase notice can be upheld. The original blight notice was amended by the
action of grounds specified in Schedule 13 to the 1990 Act, within paragraphs
1, 21, 22 …
— and —
I find, as a
matter of fact, from the evidence that the area in which the subject property
is located has been blighted for a number of years by the gradual acquisition
of properties by, or on behalf of, the university and their subsequent boarding
up. I find support for this from the minutes of the housing sub-committee of
January 25, 1994 and the correspondence from the respondent to the claimants
dated June 9, 1991 and May 24, 1994.
The issue
remains, however, whether such ‘blight’ constitutes legal blight within
paragraph 2 of the 13th Schedule and, if so, whether the claimants have made
reasonable endeavours to dispose of the subject property in the open market …
— and —
It is, I
think, agreed that the material date for me to consider whether the respondent
had established a valid objection must be the date of the counternotice, and it
is also agreed that in order to test the fides of such objection I can
take into account subsequent events as an indication of the weight to be
attached to the grounds contained in the counternotice itself …
In the present
case it was necessary simply to look at paras 3 and 4 of Schedule 13 and ask
whether 7 and 9 Ashton Road was the subject of an indication or allocation
showing that it was required by the respondent.
Mr Denehan
referred to Mr Higham’s document and, in particular, the deposit draft UDP. The
closest policy T12 got to making a reference to 7 and 9 Ashton Road was a
reference to Ashton Road and that was in the justification for the policy,
there was no indication of its acquisition. Nor was there on the town centre
inset map; on that the ‘transportation scheme’ was the strategic highway
network, but even if the claimants were right, there was no indication of the
acquisition of 7 and 9 Ashton Road.
The deposit
draft UDP was the high-water mark with the reference to the A662 (Ashton Road),
but the claimants had no interest in it; the subject property was not allocated
nor was it indicated for the respondent’s purposes.
The
inspector’s recommendation made no reference to the subject property and made
no reference to an allocation or indication of it being required.
Turning to the
adopted UDP, Mr Denehan said it came too late, but, although there was a
reference to Ashton, it contained no allocation or indication that the subject
property was required for the respondent’s purposes; it had been shown as
allocated for leisure purposes with a shopping frontage on the relevant inset
map.
Even upon a
wide interpretation of ‘indicated’, there was no indication of the acquisition
of the subject property.
The tribunal
could not have regard to the notice of December 10 1996.
The claimants
rely upon paras 3 and 4 of Schedule 13, ie the provisions of the UDP. The case
was a simple one. There was no allocation or indication. The claimants had
obviously failed to discharge the burden placed upon them.
In answer to
the tribunal, Mr Denehan said that it was not possible to consider the public
consultation exercise; the question related to the provisions of the UDP.
The respondent
agreed that, at the date of the counternotice, the subject property was
blighted, but not legally blighted.
Claimants’
reply
In reply Mr
Foster said he had never suggested that factual blight was sufficient; the
subject property was legally blighted.
The facts of
this case were far removed from those of the Bolton and Elcock
cases, which related to who would carry out the work.
The deposit
draft UDP indicated that the subject property would be a tram stop on the
metrolink. The respondent knew the initial alignment was publicised and it was
similar to that which was the subject of the notice dated December 10 1996. It
showed the subject
a tram stop.
The word
‘indicate’ should be interpreted widely, it could have regard to other factors,
ie that the alignment had been publicised.
Mr Denehan
indicated his disagreement with this proposition.
Decision
Section 150(1)
of the 1990 Act gives to the owners of certain interests in a hereditament, in
certain circumstances, the right to serve a notice on the appropriate authority
requiring that authority to purchase their interests, if the hereditament is
comprised in blighted land. The form prescribed for such a notice requires the
server to state the grounds upon which he claims the land is blighted by
reference to the provisions of Schedule 13. Upon receipt of such a notice, the
authority may serve a counternotice within two months under section 151(1) of
the 1990 Act, such a notice is to specify one or more of the grounds set out in
section 151(4) or other provisions which are not relevant in this case.
Although it
was not specifically conceded by the respondent that the claimants met all the
other requirements of section 150(1), the only one in dispute is whether or not
the subject property was blighted land within Schedule 13.
Schedule 13
contains a number of categories of blighted land. Paras 1 to 4 come under the
general heading of ‘Land allocated for public authority functions in development
plans etc‘. Para 1 relates to:
Land indicated
in a structure plan in force for the district in which it is situated either —
(a) as land
which may be required for the purposes
(i) of …
statutory undertakers …
Para 2 relates
to:
Land which —
(a) is
allocated for the purposes of any such functions as are mentioned in paragraph
1(a)(i) or (ii) by a local plan in force for the district, or
(b) is land
defined in such a plan as the site of proposed development for the purposes of
any such functions.
Para 3 relates
to:
Land indicated
in a unitary development plan in force for the district in which it —
(a) as land
which may be required for the purpose of any such functions as are mentioned in
paragraph 1(a)(i) …
Notes to para
3 provide that the reference to a unitary development plan includes plans of
which copies have been made available for inspection.
Para 4 relates
to:
Land which by
a unitary development plan is allocated for the purposes, or defined as the
site, of proposed development for any such functions as are mentioned in
paragraph 1(a)(i) …
The claimants
originally specified as the grounds of their notice those contained in paras 1,
2, 3 and 4, but before the tribunal they did not pursue the first two.
The
respondent’s counternotice objected to the claimants’ notice on the grounds set
out in section 151(4)(a), ie that no part of the hereditament to which the
notice related was comprised in blighted land.
It is common
ground that whether or not the subject property was blighted land has to be
judged by reference to circumstances subsisting on the date of the
counternotice, ie September 15 1995.
It also
appeared to be common ground that, in colloquial terms, the subject property
was blighted on the relevant date, but that the issue was whether it was
legally blighted, ie within the terms of Schedule 13.
It was not
disputed that the respondent is a statutory undertaker for the purposes of
Schedule 13 and the questions raised are whether or not, on the relevant date,
the subject property was indicated in the UDP as land which may be required for
the functions of the respondent or allocated for the purposes, or defined as
the site, of proposed development for those functions.
The town
centre inset map, which formed part of the UDP, showed the subject property
within an area notated for retail or leisure development and subject to a
shopping street policy. The width of Ashton Road in front of the subject
property was coloured yellow, which appears to have been within the notation
‘strategic highway network’; however, even if, as the claimants contended, it
was ‘transportation scheme’, the notation did not impinge on the site of the
subject property. Neither the wording of policy T12 in the deposit draft or the
proposed changes thereto, nor of its justification, mentioned the subject
property, and I have no hesitation in finding that the subject property was not
allocated for the purposes of the respondent’s functions, nor defined as the
site, of proposed development for those purposes.
Mr Foster
relied upon the wording of the justification for policy T12 in the council’s
September 1993 proposed changes to the deposit draft UDP. This stated that the
council wished to support the proposal being developed by Greater Manchester
Passenger Transport Executive, to extend metrolink from central Manchester
through East Manchester into Tameside. As at September 1993 a public
consultation exercise had been undertaken by the PTE, which publicised an
alignment for an extension entering the borough on-street at Edge Lane,
Droylsden, and continuing along the A662 as far as North Drive, Audenshaw.
No evidence
was produced as to the public consultation exercise, but Mr Foster asserted
that it showed the subject property forming part of the site of a tram station.
For present
purposes I assume that this was so, but in that case it appears to have been
the respondent’s public consultation exercise, rather than the provisions of
the UDP, which blighted the subject property.
The Bolton
and Elcock cases are of limited relevance, but the categories of
blighted land are precisely defined in Schedule 13 and I think it is clear
that, for the claimants to succeed, it would be necessary for them to show that
the provisions of the UDP, rather than any plan or plans produced for the purposes
of the public consultation exercise, gave an indication that the subject
property was required for the respondent’s purposes. I find that the UDP gave
no such indication.
Although I
feel sympathy for the claimants in as much as the subject property was
blighted, in the colloquial sense, on the relevant date, I find that the
respondent’s objection stated in its counternotice dated September 15 1995 was
well founded and its objection is hereby upheld.
This decision
determines the substantive issues raised between the parties. The parties are
invited to make such submissions as they may be advised as to the costs of the
reference and a letter accompanies this decision as to the procedure for
submissions in writing. The tribunal will in due course incorporate an order as
to costs in an addendum to this decision. Rights of appeal under section
3(4) of the Lands Tribunal Act 1949 and Rules of the Supreme Court Ord 61 will
not accrue until the decision has been thus completed, ie from the date of the addendum.
Addendum
as to costs
I received
submissions as to costs.
The respondent
claimed the costs. The claimants said that there should be no order as to
costs.
I find that
there are no exceptional circumstances to justify a variation from the normal
practice that costs should follow the event.
The claimants
shall pay the respondent its costs of the reference, such costs to be agreed
and, failing agreement, are to be taxed by the registrar of the Lands Tribunal
on the High Court scale standard basis.
