Purchase notice–Four intended sites of chicken broiler houses on land of former Honiley airfield, Kenilworth, all close to electronic signalling device owned and operated by Civil Aviation Authority–Planning permission refused on ground that the signalling device, being highly sensitive to metal, would be adversely affected–‘Pointe Gourde’ principle in respect of diminution in value held not applicable–No scheme, undertaking or project underlying the acquisition–Grant of planning permission not to be assumed under section 112 of 1971 Act
Mr D R Woolley
(instructed by Moseley, Chapman & Skemp, of Lichfield) appeared for the
claimants, and Mr J M Drinkwater QC, Mr D G Robins and Mr P R Maguire
(instructed by Richards, Butler & Co) for the acquiring authority.
This is a
preliminary issue to determine the legal basis upon which compensation for a
deemed compulsory purchase arising under confirmed purchase notices relating to
parts of a former airfield at Honiley, Honiley Road, Meer End, Kenilworth,
Warwickshire, should be assessed. Each part is a rectangular area, 500 ft long
by 60 ft wide. Each rectangle was the intended site of a chicken broiler-house
possessing those measurements. There are four such rectangles. Their situations
are shown on plans produced at the hearing. There were three purchase notices,
each dated January 4 1971. One of the purchase notices (purchase notice A)
refers to two of the rectangles. I will call them sites A1 and A2. They are
parallel each with the other, site A1 lying to the west of site A2. They are
separated by a gap of about 30 ft. To the south west and in line with site A1
is a third site (site B). This is the subject of purchase notice B. Parallel to
that site and in line with site A2 is the fourth site (site C). This is the subject
of purchase notice C. Each purchase notice is the subject of a separate
reference.
All four sites
lie to the east of, and within a radius of 750 ft from, an electronic
signalling device known as a VOR station or, to give it its full title,
very-high-frequency omni-directional range station. It is owned and operated by
the Civil Aviation Authority. Although it is situated near to Elmdon Airport,
Birmingham, it is part of a nationwide network of air navigation installations.
It provides signals for aircraft wherever bound, not merely those approaching
or leaving Elmdon Airport. It is highly sensitive to metal and there is
inevitably metal (for example nails) in broiler-houses.
In consequence
of planning refusals based on the need to protect the VOR station the four
sites are, from a planning point of view, sterile. They cannot even be used for
the purposes of agriculture, because they are covered with one and a half
inches of tarmac on top of six inches of concrete on top of six inches of
hardcore. It would be uneconomical to restore the land to a condition fit for
agriculture (this was agreed before me; the inspector at a public inquiry into
the purchase notices had decided that the cost of the work of restoration would
greatly exceed the value of the land when restored). It may be that the removal
of the concrete, etc would itself adversely affect the VOR station, at all
events if machinery were necessary (as seems likely) for that purpose.
The questions
raised by the claimants in their interlocutory application are as follows:
(1) Whether in all the circumstances, the
existence of the VOR station is to be ignored for the purpose of assessing
compensation on acquisition under Part IX of the Town and Country Planning Act
1971;
(2) Whether in all the circumstances, the grant
of planning permission for the erection of chicken broiler-houses on the
subject land is to be assumed by virtue of section 112 of the Town and Country
Planning Act 1971 for the purpose of assessing compensation on acquisition
under Part IX of that Act.
All the facts
are agreed. I have mentioned some of them. The remainder are stated below.
Agreed Facts
1. In his
decision letters, each dated April 26 1972, following the public inquiry into
the purchase notices, the Secretary of State said that he was satisfied that
the conditions specified in paragraphs (a) and (c) of section 180 (1) of the
Town and Country Planning Act 1971 were fulfilled. He found on the facts that
the question of making the land capable of reasonably beneficial use, by either
granting planning permission for the development originally sought, or by
directing that some other planning permission be granted if applied for, did
not arise. He accordingly confirmed the purchase notices and directed that the
then Meriden Rural District Council should be deemed to have served on April 26
1972 notices to treat in respect of the claimants’ freehold interest in the
four sites.
2. The
acquiring authority is the successor, under the Local Government Act 1972, of
Meriden Rural District Council.
3. In 1963 the
claimants bought 70 acres or thereabouts of Honiley Airfield. In 1964 they were
granted planning permission to develop the main runway of the airfield as a
poultry farm by the erection of two broiler-houses. Between 1964 and 1967 they
sold about half their holding including one undeveloped site of one of those
houses.
4. In or about
1965 the VOR station was erected and commenced operation.
5. On March 11
1969 the claimants applied to the Meriden Rural District Council for planning
permission for the erection of two broiler-houses, one on site A1 and the other
on site A2. Planning permission was refused on April 29 1969 on four grounds,
the fourth of which was that the Board of Trade raised objection to the
proposed development ‘which would adversely affect the safeguarding
arrangements for Birmingham Airport.’
The claimants appealed against this refusal. The appeal was dismissed by
the inspector at the public inquiry into the appeal, and the Minister of
Housing and Local Government in his decision letter dated August 12 1970 gave
as the sole reason for dismissing the appeal the fourth ground for refusal
stated above, namely, that the proposed buildings would affect the accuracy of
the information sent out from the VOR station. At the same time and by the same
decision letter an appeal was allowed permitting the erection of four
broiler-houses on sites outside the 750-ft radius from the VOR station. The
inspector stated that on solely planning grounds sites A1 and A2 had equal if
not greater merit than those other sites.
6. On
September 21 1970 an application was made by the claimants to the Meriden Rural
District Council for permission for the erection of one broiler-house on site
B. Planning permission was refused on October 30 1970 for the following reason:
‘In his
letter dated August 12 1970 the Minister of Housing and Local Government
dismissed an appeal by Packwood Poultry Products Limited relating to the
erection of poultry houses on this runway because of the effect that the presence
of the proposed building would have on the accuracy of the navigational
information sent out from the adjacent VOR station as an aid to aircraft using
Birmingham Airport. The local planning authority see no reason to depart from
that decision.’
There was no
appeal from that decision.
7. In January
1964 planning permission had been granted for the erection of a broiler-house
on a site in approximately the same position as that of site B. On February 21
1966 that planning permission was revoked by the County of Warwick
(Modification of Permission to Develop) (No 1) Order 1966, which was confirmed
by the Minister of Housing and Local Government on July 21 1966. The order
contained inter alia the following consecutive recitals:
‘AND WHEREAS
the Minister of Housing and Local Government on the 27th day of August 1965,
made a Direction under Article 11 of the Town and Country Planning General
Development Order, 1963 entitled ‘Honiley VOR Direction 1965’ providing for
consultation with the Ministry of Aviation in respect of applications for
development in the area specified in the Direction;
AND WHEREAS
the Ministry of Aviation have made certain representations to the Warwickshire
County Council that the development of the said land in the manner proposed would
be detrimental to the interests of that Ministry in connection with the
establishment of a technical site in the area;
AND WHEREAS
in our opinion it is expedient in the interests of the proper planning of the
area that the development of the said land by the erection of the poultry house
marked ‘B’ on the plan and thereon coloured red should not be permitted.’
Ultimately
compensation of £8,615.11s was paid to the claimants arising out of the order.
8. On
September 17 1970 an application was made by the claimants to the Meriden Rural
District Council for permission for the erection of one broiler-house on site
C. Planning permission was refused on October 30 1970 for the same reason as
that given on the same date for refusal of permission in the case of site B. No
appeal was made against that refusal.
9. But for the
need to protect the VOR station planning permission for the erection of a
broiler-house on each of the sites A1, A2, B and C could, at the very least, be
reasonably expected to be granted. (It may be that no one would quarrel with
the view that but for that need the grant of such planning permission could be
expected with certainty.)
Arrangements
for Safeguarding VOR Station
No order under
section 26 of the Civil Aviation Act 1949 has been made. That section empowers
the Secretary of State, if he is satisfied that it is necessary so to do in
order to secure the safe and efficient use for civil aviation purposes of any
land, structures, works or apparatus vested in him . . . by order to declare that
any area of land specified in the order shall be subject to control by
directions given in accordance with the provisions of the section. When such an
order has been made the Secretary of State may, then, in pursuance of any
general or special authority given by the order, give directions, inter alia,
for requiring the total or partial demolition of any building or structure
within the area to which the order relates. The section gives no power to the
Secretary of State to prohibit the erection of a building. That matter has,
however, been dealt with under the town and country planning legislation. Thus
in the Town and Country Planning Act 1962 Ministry of Aviation Technical Site
Honiley (VOR) Direction 1965 addressed to the Warwickshire County Council (the
local planning authority), the Minister of Housing and Local Government, in
exercise of the powers conferred on him by article 11 of the Town and Country
Planning General Development Order 1963, directed the council, before
determining any application for permission for any development of land within
the area coloured pink on the map annexed to the order, to consult with the
Ministry of Aviation.
Although
referred to on that map the VOR station was at that stage not yet included in
the safeguarding map for Elmdon Airport. That event happened in 1968. At that
stage it became the duty of the local planning authority under the Town and
Country Planning (Airfields) Direction 1949, before granting permission for the
development of land forming the site or in the neighbourhood of an airfield for
which a safeguarding map had been furnished to the authority, to consult with
the Minister of Civil Aviation. In Circular No 76 issued by the Ministry of
Town and Country Planning on October 14 1949 it was emphasised that the
safeguarding maps were essentially for guidance and that development would not
necessarily be restricted because the proposal was one requiring consultation
with the flying department.
The matter is
now governed by the Town and Country Planning (Aerodromes) Direction 1972,
which requires a local planning authority, before granting permission for the
development of land forming the site of or in the neighbourhood of an aerodrome
for which a safeguarding map has been furnished to the authority, to consult
with the Civil Aviation Authority. Circular No 96 of 1972 issued by the
Department of the Environment states that the revised direction, like its
predecessors, does no more than require consultation about development in areas
shown on safeguarding maps and that permission will not necessarily be refused
because the proposal is one requiring consultation with the Civil Aviation
Authority. There was consultation between the acquiring authority and the
predecessors of the Civil Aviation Authority relating to sites A1 and A2. Apart
from the consultation referred to in the order mentioned in paragraph 7 above,
there was no consultation relating to sites B and C. The acquiring authority in
respect of those sites was guided by the earlier con-
predecessor) and the acquiring authority or local planning authority that
permission for development which would interfere with the working of the VOR
station would be refused.
Some Rights
and Duties of Civil Aviation Authority
(1) The Civil Aviation Authority could, had it so
desired, have acquired the claimants’ land for the purpose of protecting the
VOR station and could have done so compulsorily: see sections 23 and 26 (7) of
the Civil Aviation Act 1949 and section 14 of the Civil Aviation Act 1971.
(2) Under section 17 (3) of the Civil Aviation
Act 1971, where a purchase notice is served under section 180 of the Town and
Country Planning Act 1971 in respect of a planning decision which would not
have been taken but for the need to secure the safe and efficient operation of
the VOR station, any local authority who are deemed under section 186 (1) of
the Town and Country Planning Act 1971 to have served a notice to treat in
respect of the interest to which the purchase notice relates may, by notice in
writing given to the Civil Aviation Authority . . ., require the authority to
purchase the interest from the local authority for a sum equal to the amount of
compensation agreed or determined; and where such a notice in writing is given
the Civil Aviation Authority is, subject to any agreement between the local
authority and it, deemed to have contracted with the local authority to
purchase the interest at that price.
Argument for
Claimants
The main
argument of Mr David Woolley of counsel on behalf of the claimants was as
follows:
The effect of
the need to protect the VOR station was to diminish the compensation to which
the claimants would otherwise be entitled because, but for that need, they would
have obtained planning permission to erect broiler-houses on the four sites.
That diminution was to be ignored: see Pointe Gourde Quarrying &
Transport Co v Sub-Intendent of Crown Lands [1947] AC 565 (‘It is
well settled that compensation for the compulsory acquisition of land cannot
include an increase in value which is entirely due to the scheme underlying the
acquisition’). There were five principles of law to be borne in mind:
(1) The extent and nature of a scheme for the
purposes of the Pointe Gourde principle was a question of fact: see Fraser
v Fraserville [1917] AC 187 at 194; Wilson v Liverpool
Corporation [1971] 1 All ER 628 at 634, 635.
(2) In arriving at the application of the Pointe
Gourde principle to cases such as the present case it was necessary to
consider all the relevant facts and circumstances, including the consequences
of any assumptions which were directed to be made: see Jelson v Ministry
of Housing and Local Government [1970] 1 QB 243 at 251, 252 and 254; Margate
Corporation v Devotwill Investments [1970] 3 All ER 864 at 868, 870.
See also per Lord Asquith of Bishopstone in East End Dwellings Co v Finsbury
Borough Council [1952] AC 109 at 132: ‘If you are bidden to treat an
imaginary state of affairs as real, you must surely, unless prohibited from
doing so, also imagine as real the consequences and incidents which, if the
putative state of affairs had in fact existed, must inevitably have flown from
or accompanied it.’ The consequence of
the assumption that one had to disregard the value-effect of the need to
protect the VOR station was the overwhelming probability that planning
permission for the erection of broiler-houses on the four sites would have been
granted: this was an agreed fact.
(3) Compensation must put the claimant in the
same position as he would have been in if no compulsory acquisition had taken
place: see Horn v Sunderland Corporation [1941] 2 KB 26 at 42,
48; Fraser v Fraserville, supra; Rugby Joint Water Board v Foottit
[1972] 1 All ER 1057 at 1067, per Lord Hodson (if the claimants recover less
than their loss that would be wrong). It was in effect the contention of the
acquiring authority that the claimants suffered a loss for which they were not
to be compensated.
(4) The Pointe Gourde principle applies as
much to diminution in value of the subject land as to an increase in that value
attributable to the scheme underlying the acquisition: see Jelson v Blaby
District Council (1974) 232 EG 93, 205 (my decision).
(5) A scheme for the purposes of the Pointe
Gourde principle need not necessarily be a scheme of development: a scheme
of acquisition will do. All the authorities referred to by Lord Pearson in Rugby
Joint Water Board v Foottit, supra, at 1061, talk of schemes of
acquisition and do not mention schemes of development.
The scheme
underlying the acquisition in the present case was a scheme to enforce the
sterilisation of the subject land: it was a scheme of acquisition in order to
enforce the sterilisation for the purposes of protecting the VOR station, a
course taken at the behest of the Civil Aviation Authority and its predecessors
and for no other reason. The local planning authority and the acquiring
authority (in refusing permission under delegated authority from the local
planning authority) was perhaps not strictly the agent of the Civil Aviation
Authority, but it represented the views of that authority. If the Secretary of
State had acquired the subject land under the provisions of section 23 of the
Civil Aviation Act 1949 in order to protect the VOR station the Pointe
Gourde principle would have applied so as to prevent the claimants being
deprived of compensation in respect of the diminution in value of their land
attributable to the need to protect the station. It was logical that that
principle should also apply in the circumstances of the present case, in which
the refusal of planning permission and the consequent deemed compulsory
purchase took place at the behest of the Civil Aviation Authority. The decision
of the Court of Appeal in Provincial Properties (London) v Caterham
& Warlingham Urban District Council [1972] 1 QB 453 was distinguishable
because it was a decision on section 16 of the Land Compensation Act 1961 and
because it was clear that planning permission in that case would never have
been granted because of the adjacent beautiful countryside.
Mr Woolley’s
subsidiary or alternative argument was based on section 112 of the Town and
Country Planning Act 1971, which is applied by section 186 (1) of that Act.
That subsection provides that in a case where the Secretary of State confirms a
purchase notice the council on whom the notice was served is to be deemed to be
authorised to acquire the interest of the owner compulsorily in accordance with
the relevant provisions and to have served a notice to treat in respect thereof
on such date as the Secretary of State may direct. The relevant provisions are
the provisions of Part VI of the Act: see section 181 (4); section 186 (6). The
relevant provisions are in fact for practical purposes contained in section
112, which in subsection (1) provides:
‘The
Secretary of State may authorise a local authority to whom this section applies
to acquire compulsorily any land within their area if he is satisfied:
(a) that the land is required in order to secure
the treatment as a whole, by development, redevelopment or improvement, or
partly by one and partly by another method, of the land or of any area in which
the land is situated; or
(b) that it is expedient in the public interest
that the land should be held together with land so required; or
(c) that the land is required for development or
redevelopment, or both, as a whole for the purpose of providing for the
relocation of population or industry or the replacement of open space in the
course of the redevelopment or improvement, or both, of another area as a
whole; or
(d) that it is expedient to acquire the land
immediately for a purpose which it is necessary to achieve in the interests of
the proper planning of an area in which the land is situated.’
Mr Woolley
said that it was plain that paragraphs (b), (c) and (d) were not relevant.
Paragraph (a), however, was relevant. The land was required in order to secure
the treatment as a whole by development of the land by the erection of
broiler-houses. That was the only appropriate development for the land.
Planning permission for that development was deemed to be granted by virtue of
section 15 (1) of the Land Compensation Act 1961 (no express planning
permission for that purpose being in force). Mr Woolley’s submissions in
relation to this part of the case also depended upon the assumption that one
had to ignore the needs of the VOR station.
Acquiring
Authority’s Case
Mr Drinkwater,
for the acquiring authority, considered first Mr Woolley’s subsidiary point. Mr
Drinkwater said that paragraphs (a), (b) and (c) of section 112 (1) of the Town
and Country Planning Act 1971 did not fit the circumstances of the present
case. If one were looking for the best fit, that was provided by paragraph (d).
The Secretary of State had decided in relation to the 1970 planning application
that the proper planning required land within 750-ft radius of the VOR station
to remain open and clear of any structures (even if of wood). That was a proper
and material planning consideration to be taken into account under section 29
of the Town and Country Planning Act 1971. To assert that the local planning
authority must be deemed to be acquiring for the purposes of building broiler
houses was both:
(a) contrary to reality because it represented
precisely what the Secretary of State and the local planning authority were
seeking to avoid; and
(b) contrary to a proper construction of the
Secretary of State’s decisions which had led to his confirming the purchase
notices.
It was, however, inappropriate to attempt to assign in the case of
this deemed acquisition one of the particular purposes referred to in section
112 of the Act of 1971.
On Mr
Woolley’s main point, Mr Drinkwater made the following submissions: broadly
speaking he agreed with the five principles stated by Mr Woolley, though he
reserved the right to argue the correctness of the fourth of them elsewhere and
was not happy with the manner in which the fifth of them was expressed. There
was no room for the application in the present case of the Pointe Gourde
principle. There were four interlocking and overlapping reasons for this:
(1) There was no scheme underlying the
acquisition. (This was the paramount reason.)
(2) The principle could apply only where the land
is necessarily required for the purpose of a scheme. The land in the present
case has never been required and is not wanted now by the acquiring authority.
The only reason the acquiring authoritly is now acquiring the land is that each
of the four sites happens to be concreted over. If that were not so there would
have been no purchase notices. The land could then have been used for
agriculture. The fact of the existence of the concrete and the expense of
removing it and restoring the land to grassland was the real reason for the
acquisition.
(3) The acquiring authority itself has no scheme.
The VOR station was developed by the Civil Aviation Authority and not the
acquiring authority and there was no nexus between them, unlike that in Jelson
v Blaby District Council, supra.
(4) The Pointe Gourde principle may not be
applicable in any event to deemed acquisitions. Mr Drinkwater reserved that
point for consideration elsewhere. He would also reserve the question whether
the Pointe Gourde principle had been overruled by section 6 of the Land
Compensation Act 1961 and the Second Schedule thereto. Mr Drinkwater
particularly relied upon the decisions of the High Court in Stringer v Minister
of Housing and Local Government [1971] 1 All ER 65 and RMC Management
Services v Secretary of State for the Environment (1972) 222 EG
1593. In the first of those two decisions it had been held by Cooke J that a
planning refusal on the ground that the proposed development would adversely affect
the Jodrell Bank radio telescope at Manchester University was a proper planning
decision notwithstanding that it was conceded in that case that the owners of
the land could recover no compensation for the diminution in value of their
land attributable to the refusal. The other decision was, on its facts,
similar.
The fact that
the Secretary of State’s decision in the present case had given rise to a
detriment to the claimants so that they could not put broiler-houses on their
sites was not something which afforded to them any basis for compensation. The
claimants were seeking to claim by an erroneous application of the Pointe
Gourde principle compensation in respect of a planning refusal which they
ought not to get on ordinary planning principles. If one looked at reality,
there had been a grant of planning permission revoked and paid for; a VOR
station had been built — it was not a scheme, but it was a fact. It was there,
just as much as Jodrell Bank and Blue Streak (in the RMC Management Services
case) were there.
Tribunal’s
Decision
If I were of
the opinion that the acquiring authority had, in relation to the VOR station, a
scheme for its protection, it would not be difficult to conclude that the
scheme underlay the acquisition and that the Pointe Gourde principle
required the diminution in value of the claimants’ land attributable to the
scheme to be discounted. I do not think that the acquiring authority can be
heard to say that it did not want to buy the claimants’ land: the effect of
section 186 of the Town and Country Planning Act 1971 is that the acquiring
authority is deemed to be in precisely the same position as if it had
voluntarily made a compulsory purchase order for one or more of the objects
expressed in section 112 of that Act and that the compulsory purchase order had
been confirmed by the Secretary of State. That in turn has the consequence that
Widgery LJ’s words in the Wilson case supra (‘whenever land is to
be compulsorily acquired, this must be in consequence of some scheme or undertaking
or project’) would seem to be applicable to the deemed compulsory purchase
order. Except in so far as the scheme is to be found within the paragraphs of
section 112 of the Act of 1971 its nature and extent is one of fact. It is
perhaps less difficult to find a scheme within these paragraphs, and more
particularly paragraph (d), than was the case in respect of the corresponding
but different provisions of the Town and Country Planning Act 1962 (see my
observations in Jelson v Blaby District Council, supra at 470).
It is indeed noticeable that paragraph (d) is in very similar words to the
words
expressed. However, it was not part of Mr Woolley’s argument that the scheme
was to be found within the terms of section 112. His submission was that the
question was one of fact. Accepting that proposition, I am, with regret, unable
to draw the inference from the agreed facts that the acquiring authority ever
formulated or possessed anything which could be dignified by the title of
scheme, undertaking or project with respect to the need to protect the VOR
station. The acquiring authority certainly took that need into account in
considering planning applications by the claimants relating to their land
within the protective radius from time to time as those applications were made.
However, it did not in advance of the making of those applications or any of
them enter into any agreement with the Civil Aviation Authority (or its
predecessors) or for its own part resolve or decide that all such applications
should be refused on the ground of the need to protect the VOR station and
without regard to the merits of each application. Indeed, any such agreement,
resolution or decision, if made or entered into, would seem to be void as
contravening section 29 of the Act of 1971: see per Cooke J in Stringer
v Minister of Housing and Local Government, supra, at 75.
As to Mr
Woolley’s alternative argument based on section 112 of the Act of 1971, I, like
Mr Drinkwater, reject it on the ground that it is contrary to reality.
In the
premises I answer the preliminary issue by deciding:
(1) That the diminution in the value of the
claimants’ land which is attributable to the need to protect the VOR station is
not to be ignored, that is to say, that the claimants are not entitled to be
recouped in respect of the amount of that diminution:
(2) That the grant of planning permission for the
erection of chicken broiler-houses on the claimants’ land, the subject of the
references, is not to be assumed by virtue of section 112 of the Town and
Country Planning Act 1971 and section 15 (1) of the Land Compensation Act 1961
or at all.
The claimants
will pay to the acquiring authority their costs of these applications, such
costs, if not agreed, to be taxed by the Registrar of the Lands Tribunal on the
High Court Scale.
