Applicant local planning authority owning land — Second respondents as highway authority requiring land for road improvements — Compulsory purchase orders issued — Basis for compensation — Local planning authority certifying that land suitable for office and other development — Inspector recommending that certificate be confirmed — Secretary of State issuing new certificate that permitted use for car parking only — Whether Secretary of State erred in law — Application refused
The applicants, the local planning authority, were owners of 8.15 acres of land to the north of Maidstone, which was used as allotments. The second respondents, Kent County Council, the local highway authority, had a scheme to improve Sandling Road (the A229) on the east of the site. To carry out the work, they required the site and accordingly issued compulsory purchased orders.
The applicants issued a certificate, which stated that were the land not to be acquired by an authority possessing compulsory purchase powers, planning permission would have been granted for offices, residential development, a hotel and car park. Those were valuable purposes with concomitant substantial compensation.
In the appeal against that certificate, the inspector recommended that it be confirmed. The Secretary of State for the Environment cancelled it, however, and issued a new one instead, whereby planning permission for car parking was the only permitted use. Under section 17 of the Land Compensation Act 1961, an appli-cation for a certificate must state whether there were, in the applicants’ opinion, any classes of development which either immediately or at a future time would be appropriate for the site if it were not proposed to be acquired by an authority with compulsory purchase powers.
Held The application was refused.
1. Circular 48/59 stated that the certificate system should be worked out on broad commonsense lines; a certificate was not a planning permission, but to be used in ascertaining the fair market value of the land.
2. The basis of compensation had to be determined by reference to a hypothetical situation, ie that any increase or decrease in the land attributed solely to the scheme of acquisition was to be disregarded in assessing the open market of the land.
3. In the present case, the site was already in public ownership and was already open space; there was no rule of law that the protection of future public purposes should be ignored under section 17.
4. Local planning authorities were not in unrestricted control of the planning system and it was always open for the Secretary of State to make his own decision.
5. The applicants contended that the Secretary of State was wrong in law in considering that the loss of potential open space was a material consideration in determining whether planning permission would have been granted in a “no scheme world” for any class of development. However, he was entitled to conclude that the need for more land for offices, etc would not have overridden objections to the development of the land and that the only factor which would have outweighed the planning objections was the need for additional parking facilities.
6. Further, when it came to assessing compensation, the Lands Tribunal would assume a willing seller, but one who was selling land for which planning permission for car parking only would be available.
Matthew Horton QC and Murziline Parchment (instructed by the solicitor to Maidstone Borough Council) appeared for the applicant local planning authority; Richard Drabble (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Timothy Comyn (instructed by the solicitor to Kent County Council) appeared for the second respondents, the local highway authority.
