Compulsory purchase — Compensation — Certificate of appropriate alternative development under section 17 of Land Compensation Act 1961 — Issue estoppel — Whether evidence can be adduced to show that conclusions by which certificate issued should not be followed in assessing compensation for severance and injurious affection of retained land
The claimants
owned land on the outskirts of Evesham. The Secretary of State for Transport
acquired two strips of land (‘the red land’) from the claimants for the
construction of a bypass (‘the yellow route’), and took possession on September
20 1985. The claimants retained adjoining land (‘the blue land’). Following an
appeal under section 18 of the Land Compensation Act 1961, the Secretary of
State for the Environment granted a certificate of appropriate alternative
development for the red land for residential development. He agreed with the
reasoning of his inspector and concluded that because there was an alternative
and more easterly route for the bypass, the red land could have been
residentially developed if it were not being acquired by the acquiring
authority for the yellow route. In the reference to the tribunal, the acquiring
authority sought to adduce evidence that the conclusions of the Secretary of
State for the Environment should not be followed in assessing compensation for
severance and injurious affection compensation in respect of the blue land. At
the hearing of a preliminary point of law, the claimants contended that the
Secretary of State for Transport was precluded by the doctrines of res
judicata and/or issue estoppel from reopening the issue determined
by the certificate of appropriate alternative development; the issue, namely
what would have happened had the bypass not been built on the yellow route, was
determined in the claimants’ favour.
acquiring authority could not reopen the issue.
The three
conditions for the application of issue estoppel referred to in Halsbury’s
Laws (4th ed) vol 16, para 977 were satisfied: (1) the same question or
issue would arise before the tribunal as had been considered in the section 18
appeal, namely what would have happened if the bypass had not been built on the
yellow route: see p113. (2) The decision of the Secretary of State in the
section 18 appeal was final: see p112. (3) The acquiring authority appeared and
were represented at the section 18 appeal and were therefore a party to it: see
pp112–113.
to in the decision
Abbey
Homesteads Group Ltd v Secretary of State for
Transport [1982] 2 EGLR 198; [1982] EGD 795; (1982) 263 EG 983, 1095 &
264 EG 59, 151, LT
ADP&E
Farmers v Department of Transport [1988] 1
EGLR 209; [1988] 18 EG 80, 19 EG 147, 20 EG 104
Arnold v National Westminster Bank plc [1991] 2 AC 93; [1991] 2 WLR
1177; [1991] 3 All ER 41; [1991] 2 EGLR 109; [1991] 30 EG 57
Bird v Wakefield Metropolitan District Council (1978) 37 P&CR
478; [1978] 2 EGLR 16; [1978] EGD 533; 248 EG 499; [1979] JPL 25, CA
Carl
Zeiss Stiftung v Rayner & Keeler Ltd (No 2)
[1967] 1 AC 853; [1966] 3 WLR 125; [1966] 2 All ER 536, HL
Fidelitas
Shipping Co Ltd v V/O Exportchleb [1966] 1
QB 630; [1965] 2 WLR 1059; [1965] 2 All ER 4; [1965] 1 Lloyd’s Rep 223, CA
Luke
(Lord) of Pavenham v Minister of Housing and
Local Government [1968] 1 QB 172; [1967] 3 WLR 801; [1967] 2 All ER 1066;
(1967) 65 LGR 393; 18 P&CR 333; [1967] EGD 370; 202 EG 1121, CA
Margate
Corporation v Devotwill Investments Ltd
[1970] 3 All ER 864; (1970) 22 P&CR 328; 69 LGR 271; [1971] EGD 313; 218 EG
559, HL
Pointe
Gourde Quarrying & Transport Co Ltd v Sub-Intendent
of Crown Lands [1947] AC 565, PC
Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273;
[1990] 2 WLR 1; [1990] 1 All ER 65; (1989) 59 P&CR 326; [1990] 1 EGLR 197;
[1990] 13 EG 69; [1990] 2 PLR 69, HL
Reference to
the Lands Tribunal
This was a
hearing of a preliminary point of law in a reference by the claimants for the
determination of compensation arising out of the compulsory purchase of land by
the acquiring authority.
Spence QC and Nicholas Nardecchia (instructed by Rooks Rider) appeared for the
claimants, Henry Porter and Ann Porter.
Katkowski (instructed by the Treasury Solicitor) appeared for the acquiring
authority, the Secretary of State for Transport.
following decision was delivered.
JUDGE MARDER QC:
Pursuant to an order of the registrar dated December 3 1993, I held a hearing
to determine a preliminary issue arising on a reference to the tribunal of a
claim to compensation for the compulsory acquisition of approximately 17,930 m2
of land at Evesham in the county of Hereford and Worcester for the purpose of
constructing the Evesham bypass.
The
compensation claimed is in respect of: (a) the value of the land compulsorily
acquired; and (b) damage caused by severance and/or injurious affection in
respect of adjoining land retained by the claimants. The point of law as
formulated by agreement of the parties is as follows:
Whether the
doctrines of res judicata and/or issue estoppel apply in the
circumstances of this case so as to preclude the acquiring authority from
calling evidence before, and making submissions to the tribunal, that the
conclusions reached by the Secretary of State for the Environment as set out in
a letter dated 30 November 1988 whereby he decided to issue a certificate under
Section 17 of the Land Compensation Act 1961 for residential development of the
land acquired from the claimants should not be followed and applied by the
tribunal in assessing the amount of compensation to be paid in respect of
severance and/or injurious affection to the land retained by the claimants.
At the hearing
before me, the claimants were represented by Mr Malcolm Spence QC and Mr
Nicholas Nardecchia and the acquiring authority was represented by Mr
Christopher Katkowski.
There was no
dispute between the parties as to the facts relevant to the preliminary issue,
which can be summarised as follows:
1. The
claimants were at all material times freehold owners of land on the eastern
outskirts of Evesham shown on an agreed plan annexed to this decision [not
reproduced here]. The claimants’ land is edged blue and part is coloured red
(hereinafter referred to as ‘the blue land’ and ‘the red land’).
2. The
Secretary of State for Transport (hereinafter called the acquiring authority)
acquired the red land in the exercise of compulsory powers conferred by the
Bath/Lincoln Trunk Road (A435-Evesham bypass) Compulsory Purchase Order 1985
made on April 22 1985. Notice to treat and notice of entry were served on
August 2 1985 and the acquiring authority entered into possession of the red
land on September 20 1985. The claimants accordingly became entitled to
compensation in respect of the red land and in respect of any loss or damage
caused by severance and/or injurious affection to the retained blue land. The
relevant date for valuation purposes being the date of entry September 20 1985.
3. Between
1985 and 1987 the Evesham bypass was constructed on the line shown coloured
yellow on the agreed plan. That line incorporated the red land.
4. Pursuant to
section 17 of the Land Compensation Act 1961, the claimants made a number of
successive applications to the local planning authority, Wychavon District
Council, for a certificate of appropriate alternative development, namely
residential development in respect of the red land. These applications resulted
in ‘nil’ certificates save in respect of a small and immaterial part of the red
land. Appeals to the Secretary of State for the Environment were lodged in
respect of these nil certificates pursuant to section 18 of the 1961 Act. A
public local inquiry was conducted by an inspector appointed by Secretary of
State for the Environment between May 3 and 5 1988. The inspector’s report and
recommendations were dated September 23 1988 and by letter dated November 30 1988
the Secretary of State for the Environment allowed the appeals, cancelled the
existing nil certificates and issued a new certificate specifying that if the
red land had not been proposed to be acquired compulsorily, planning permission
would have been granted in respect of that land for residential development,
subject to conditions relating: (a) to
5. The
inspector’s report and the appeal decision letter of Secretary of State for the
Environment are agreed documents. While it is necessary to take account of
these as a whole, the following is a summary of those parts of the documents
which appear to be of particular relevance to the present issue.
(a) Inspector’s report
The inspector
described the bypass as taking the approximate shape of a semi-circle to the
east of the town, with five roundabouts including one at each end. He set out
in detail the case for the appellants (the present claimants) that having
regard to the adopted planning policies current at the relevant time, there was
an identified requirement for further housing development which was to be met
partly within the area in which the red land was situated and that the red land
was suitable to contribute to meeting that requirement. He further reported the
appellants’ examination of successive route options for an Evesham bypass, and
their case that the traffic problems in Evesham were so serious that another
scheme would have been adopted if the existing bypass had not been built. The
appellants submitted that an alternative bypass would have been on the
‘preferred route’ indicated by a green line on the agreed plan. The green line
passed through the appellants’ land some distance to the east of and roughly
parallel with the constructed bypass. This green route would have marked the
eastern limit of development of the town and thus warranted residential
development of the appellants’ land up to that line.
The inspector
then set out the case for the local planning authority. The district council
regarded themselves as unable to answer the question, ‘What was the most
probable line that would have been selected if the existing bypass had not been
constructed?’ Consequently, the Department of Transport had been asked to attend
the inquiry for the purpose of advising in the matter. That request had
produced a suggested line ‘the Inner Eastern Route’. (Note: this is not
marked on the plan, but was to the west of the claimants’ land and thus closer
to the town.) The council were required to assume two possible scenarios: (i) a
total no-scheme world excluding the actual bypass and any substitution for it;
and (ii) a substitute for the actual bypass along a route which did not take
the appeal land. As to the first possibility, in view of outstanding planning
permissions the appeal land lay well to the east of a line defining the limit
of the developable part of Evesham. As to the second possibility, at the
relevant date the only possible place for a bypass to serve Evesham lay to the east
of the town, but the inner eastern route was more credible and more likely than
the preferred route (green line), the relevant section of which would have
failed to meet the requirements of Department of Transport standards. The
council had been keen to see a bypass and would have been satisfied with the
inner eastern route. Accordingly, the council submitted that rejection of the
appeal was justified.
The inspector
then recorded, ‘The Case for the Acquiring Authority (Department of Transport)’
(sic). The bypass as constructed had been
rejection of a number of alternative schemes, including a southern route, a
central route, a western bypass and the preferred route. On the assumption that
the actual bypass had not been constructed, the scheme which would have been
selected comprised a combination of the central route and the southern
bypass/eastern link road. The routes involved in such a scheme would not have
been close enough to the appeal land to influence its future use. On the other
hand if an eastern option proved to be the criterion, the inner eastern route
would have been chosen rather than the preferred route. This also would not
have influenced the future use of the appeal land in view of its alignment
nearer the town.
The inspector
in his conclusions rehearsed the arguments and considered the matter from what
he called ‘two standpoints’. As to the first, which left out of account the
purpose for which the land was acquired (and by implication the absence of any
alternative bypass scheme) he concluded that no development would have been
permitted on the appeal land. As to the second standpoint, he examined whether
any alternative or substitute bypass would have had a bearing on development of
the appeal land. The inspector considered the prospect of an inner eastern
route and concluded that this alternative should be given no weight. As to the
preferred route, he did not think the failure to satisfy all departmental
standards sufficient to be an overriding factor, and concluded that there was a
case for taking the preferred route into account. That being so, it was
reasonable to look at residential development of the appeal land as a logical
extension of the housing area to the west and as such it would have been
acceptable subject to appropriate conditions. The inspector therefore
recommended that the appeal be allowed and a certificate of appropriate
development be issued specifying residential development of the appeal land.
(b) Decision of Secretary of
State for the Environment
In the letter
of November 30 1988, the substantive decision was set out in para 5 as follows:
5. As
mentioned in paragraph 4 above it is normally the case in appeals of this kind
that the purpose for which the appeal land is being acquired must be left out
of account and, as the inspector concludes in his first standpoint, if the
by-pass were not to have been constructed on an eastern Route and its function
as an eastern limit to the town’s development did not arise, then there would
have been no justification for concluding that the appeal land would have
received permission for residential development. However, by 1985 it seems
quite clear that an eastern route for the new road was a firm prospect and at
that time two routes had been under consideration, known as the Preferred Route
and the Modified Route. In these circumstances the Secretary of State takes the
view that he may consider the appropriate alternative development of the appeal
site on the basis that a by-pass was to be built, but on an alignment which did
not directly involve the appeal land, as a comparison of the two routes shows
that the Preferred Route would have run some distance to the east of the
appeal site. For the avoidance of doubt, it is pointed out that the Secretary
of State is only minded to adopt this point of view because there was, at the
relevant date a clear alternative to the by-pass line actually chosen which led
to the acquisition of the appeal site. As a result the inspector’s conclusions
on his second standpoint are accepted, for the reasons he gives, as is his view
that the ‘Inner Eastern Route’ put forward by the Department of Transport at
the enquiry should not be taken into account as it was not a consideration which
was current or reasonably foreseeable at the date of entry to the land. The
inspector’s recommendation, based on his second standpoint is therefore
accepted and the Council’s certificate of appropriate alternative development
will be cancelled and a fresh certificate issued specifying residential
development subject to the two conditions he proposes.
6. The
question of compensation was referred to the tribunal by the claimants in March
1992. The nature of the compensation claimed: (a) the value of the land taken,
and (b) severance and/or injurious affection in respect of adjoining land
retained. As stated earlier, the preliminary point of law was ordered to be
heard by the order of the registrar dated December 3 1993.
Claimants’
submissions
Mr Spence based
his case firmly on issue estoppel, which now precluded the acquiring
authority from reopening the issue determined against them in the decision of
Secretary of State for the Environment under section 18 of the 1961 Act. He
submitted that the essential requirements of issue estoppel were all
present in this case, namely: (1) a previous final judgment of a court or
tribunal having jurisdiction to determine the issue; (2) that judgment being
between the same parties; and (3) upon the same question or issue now requiring
determination. Mr Spence referred to Thrasyvoulou v Secretary of
State for the Environment [1990] 2 AC 273,* which demonstrated that the
doctrine applied to adjudication in the context of ministerial inquiries and
appeals. Both the claimants and the acquiring authority were parties in the
section 18 proceedings. While the subject-matter of those proceedings related
only to the red land, the issue in those proceedings and in the present
proceedings was precisely the same, ie what would have happened if the actual
bypass on the yellow line had not been built. He referred also to Halsbury’s
Laws (4th ed) vol 16, paras 977 et seq and to the speeches of Lords
Reid and Wilberforce in the Carl Zeiss Stiftung case [1967] 1 AC 853 at
pp913–917 and pp964–965.
*
2 PLR 69.
Mr Spence
pointed out that he relied not on the section 17 certificate itself but on the
determination by the Secretary of State for the Environment of the issue
underlying the certificate. He referred to Abbey Homesteads v Secretary
of State for Transport [1982] EGD 795 a decision of this tribunal (VG
Wellings QC) in a similar case to the present. The certificate was conclusive
and must be taken into account in relation to the land acquired; in relation to
the severed land retained the material which gave rise to the certificate being
issued was evidence to which regard may be
1 EGLR 209, in which the Lands Tribunal (CR Mallett frics) referred to the ‘matters of fact or judgment which led
to the grant of a certificate on the acquired land’ as ‘strong or decisive
evidence in relation to the retained land’. However, no question of estoppel
had arisen in either of these cases. Where there was an issue estoppel,
these matters of evidence were superfluous and inadmissible to challenge the
issue earlier determined.
Mr Spence
referred to the necessary exercise of identifying the scheme underlying the
acquisition so as to eliminate the effect of the scheme in relation to
valuation. He cited the Pointe Gourde case [1947] AC 565; Bird v Wakefield
Metropolitan District Council (1978) 37 P&CR 478 and Margate
Corporation v Devotwill Investments Ltd [1970] 3 All ER 864. He
submitted that the identity of the scheme was a matter of fact and that the estoppel
bites on the findings of fact. The issues arising from the Pointe Gourde
principle had been expressly addressed in the course of the section 18 appeal
hearing, and Secretary of State for the Environment had expressly decided that
in the absence of the actual bypass, in the no-scheme world, an eastern bypass
would have been built and would have passed to the east of the red land. These
he submitted were ‘essential foundations to the Secretary of State for the
Environment conclusion’ as expressed in the certificate, cf Lord Bridge
in Thrasyvoulou at p297F.
Mr Spence
urged that these matters, which were the basis upon which Secretary of State
for the Environment had allowed the appeal should not and could not be tried
again in the hope of persuading the Lands Tribunal to reach a different
conclusion. He suggested that an absurdity or anomaly would follow if the red strip
of land were to be required to be valued as residential, while the blue land
which was indistinguishable from it was to be valued differently.
Acquiring
authority’s submissions
Mr Katkowski
stated that an important point of principle was involved. It was clear that the
scope of the section 18 certificate was limited to the red land. This was the
effect of section 15(5) of the 1961 Act, as the tribunal had correctly held in
the Abbey Homesteads case and in ADP&E Farmers. In relation
to other land it was of evidential value only, but if a party was precluded
from calling evidence as to its effect on the other land, then the result would
be to circumvent the statutory scheme.
Mr Katkowski
submitted five propositions in reply to the submissions made by Mr Spence.
First, an issue estoppel could not arise in regard to a determination
involving the exercise of discretion. Upon analysis of the Thrasyvoulou
decision, he submitted that the estoppel had been held to arise only on
the ‘technical’ grounds (b) to (e) in enforcement notice proceedings, those
grounds being such as to establish or recognise a legal right. The estoppel
did not arise on ground (a) whether to grant or withhold planning permission,
since the decision on ground (a) was wholly an exercise of discretion: see Lord
Bridge in Thrasyvoulou at p287. Mr Katkowski submitted that the decision
to grant or withhold a certificate of appropriate alternative development was
equally an exercise of discretion,
Second, the
essential ingredients of an issue estoppel were in any event not present
in this case. The claimants were admittedly parties in both proceedings, but
the acquiring authority were not a party to the section 18 appeal in the normal
sense. The appeal was brought against the local planning authority which had
issued the nil certificate. As explained in the inspector’s report, the
acquiring authority had appeared only at the invitation of the local planning
authority to assist by advice.
Third, an estoppel
could arise only in relation to the determination of facts having legal
consequences in the form of rights or duties. Mr Katkowski cited Lord
Wilberforce in the Carl Zeiss case at p964, and referred also to Arnold
v National Westminster Bank [1991] 2 AC 93 per Lord Keith at p108
and Lord Luke of Pavenham v Minister of Housing and Local Government
[1968] 1 QB 172 at pp191–192. As in the latter case, so in the present case the
Secretary of State for the Environment had reached conclusions on matters of
opinion and judgment. Para 5 of the decision letter explained the reasoning
which had led to the formation of an opinion judgment in the exercise of
discretion. Mr Katkowski suggested it was perverse to describe this as findings
of fact. They were matters of opinion and subjective judgment.
Fourth, Mr
Katkowski challenged the proposition that the findings of the inspector and
Secretary of State for the Environment were fundamental to the decision, in the
sense used by the editors of Spencer-Bower and Turner on Res Judicata at
para 211. This was an essential distinction which required analysis ‘with
unrelenting severity’. While Mr Katkowski accepted that it was an essential
step in the inspector’s reasoning that residential development would extend so
far as the green line, it was not fundamental to the decision. It was
fundamental and critical only to determine whether planning permission would be
forthcoming in respect of the red land.
Finally, with
regard to the Pointe Gourde principle, Mr Katkowski submitted that it
was wrong to say that this had been an issue. Pointe Gourde was
concerned with the assessment of compensation, as to which no question arose in
the section 18 proceedings. Valuation for compensation purposes was not an
issue before the Secretary of State for the Environment, who was required to
address quite different issues.
Mr Katkowski
denied that any absurdity or anomaly would result if his submissions were
correct. The case was one of differing views and judgments on different subject-matter
in different forums.
Claimants’
reply
Mr Spence
submitted that an estoppel would in no way circumvent the certification
provisions of the 1961 Act. The certificate of alternative development related
to the land taken and no other land and was not concerned with severance or
injurious affection. His case was based on issue estoppel only and was
limited to the factual conclusions reached by Secretary of State for the
Environment and his inspector, ie the assumption in a no-scheme world of an
alternative bypass on the green line.
As to the
argument that Thrasyvoulou demonstrated that estoppel could not
extend to the exercise of a discretion, Mr Spence submitted that it was
manifestly clear and inherent that no estoppel could arise either from
the refusal or the grant of planning permission. Hence, the distinction clearly
drawn by Lord Bridge in Thrasyvoulou between a discretionary decision
and the determination of a legal right. But that case showed that issue
estoppel could extend to determination of any legal right. The estoppel
arises to prevent relitigation of those issues on the basis of which that
determination was made. The right of the claimants to have the assumption made
of planning permission in respect of the red land was a legal right determined
in their favour by the Secretary of State for the Environment. He referred in
particular to a passage in the judgment of Diplock LJ in the Fidelitas
Shipping case [1966] 1 QB 630, quoted by Lord Wilberforce in the Carl
Zeiss case at p964F and submitted that nowhere in the case is there to be
found a justification for Mr Katkowski’s proposition that the formation of an
opinion judgment based on findings of fact cannot found an issue estoppel.
In most cases it was obvious that the court’s conclusion must be a matter of
opinion or judgment. The Secretary of State for the Environment in his decision
letter used phrases such as ‘takes the view’ and ‘minded to adopt this point of
view’ as do many judges in arriving at what are fundamentally findings of fact.
It is clear that para 5 of the decision letter expresses findings of fact as to
what would have happened if the actual bypass had not been built.
The case of Luke
v Ministry of Housing referred to by Mr Katkowski was a special case
which turned on a point of construction of the inquiries procedure rules, and
was no authority for restricting the application of issue estoppel.
Mr Spence
submitted that Mr Katkowski had failed to answer adequately his point about the
anomaly resulting if the claimants’ argument was rejected. The red land was
required to be valued on the basis of assumed permission for residential
development because the certificate required the assumption of an alternative
bypass, whereas the blue land could not be so valued unless the claimants
succeeded in persuading the Lands Tribunal to pay regard to and to take the
same view on the very question determined by Secretary of State for the
Environment, namely the assumption of an alternative bypass. This was
particularly anomalous in such a case as the present, since the section 17
certificate is a preliminary step towards the assessment of compensation by the
Lands Tribunal.
Decision
This case
raises in the clearest form the question whether the doctrine of issue
estoppel applies to preclude the acquiring authority from reopening in
compensation proceedings in this tribunal the issues of fact on the basis of
which the Secretary of State for the Environment on appeal issued a certificate
of alternative development under section 18 of the 1961 Act in respect of the
land taken.
The doctrine
of issue estoppel is authoritatively and succinctly explained in Halsbury’s
Laws (4th ed) vol 16, para 977 as follows:
An estoppel
which has come to be known as ‘issue estoppel’ may arise where a plea of Res
Judicata could not be established because the causes of action are not the
same. A party is precluded from contending the contrary of any precise point
which, having once been distinctly put in issue, has been solemnly and with
certainty determined against him. Even if the objects of the first and second
actions are different, the finding on a matter which came directly (not
collaterally or incidentally) in issue in the first action, provided it is
embodied in a judicial decision that is final, is conclusive in a second action
between the same parties and their privies. This principle applies whether the
point involved in the earlier decision, and as to which the parties are
estopped, is one of fact or one of law, or one of mixed fact and law. The
conditions for the application of the doctrine have been stated as being that
(1) the same question was decided in both proceedings, (2) the judicial
decision said to create the estoppel was final and (3) the parties to the
judicial decision or their privies were the same persons as the parties to the
proceedings in which the estoppel is raised or their privies.
Although this
passage refers to ‘a judicial decision’, it is clear at least since the case of
Thrasyvoulou that the doctrine is applicable to what Lord Bridge in that
case (at p289C) called ‘adjudications in the field of public law’. The
particular form of adjudication in Thrasyvoulou was the decision of the
Secretary of State on enforcement notice appeals under section 88 of the Town
and Country Planning Act 1971. I can see no reason in principle why the
doctrine should not apply to the decision of the Secretary of State on an
appeal under section 18 of the Land Compensation Act 1961. In Thrasyvoulou
Lord Bridge said at p289:
In relation
to adjudications subject to a comprehensive self-contained statutory code, the
presumption, in my opinion, must be that where the statute has created a
specific jurisdiction for the determination of any issue which establishes the
existence of a legal right, the principle of res judicata applies to
give finality to that determination unless an intention to exclude that
principle can properly be inferred as a matter of construction of the relevant
statutory provisions.
This passage
is, in my view, entirely apt to extend to the decision of Secretary of State
for the Environment in the present case.
Accordingly,
in my judgment, the second of the conditions referred to in Halsbury’s Laws
for application of the doctrine is established and it remains to consider the
first and third of those conditions.
As to the
third, I can deal shortly with the submission of Mr Katkowski that the
acquiring authority were not a party to the earlier proceedings relating to the
section 17 certificate. The relevant procedure is to be found in Part III of
the Land Compensation Act 1961. These proceedings are to be invoked for the
sole purpose of assessing compensation in a proposed compulsory acquisition.
The procedure requires application for such a certificate to be made to the
local planning authority. Either of ‘the parties directly concerned’ in the
proposed acquisition may make the application. Where a certificate is issued by
the local planning authority then either the land owner or the proposed
acquiring authority may appeal to the
planning authority which issued the certificate may all be heard.
In the present
case, the land owners were the appellants and both the local planning authority
and the acquiring authority appeared by representatives at the local inquiry.
It may well be that the local planning authority had ‘invited the assistance’
of the acquiring authority in seeking to justify the certificate which the
local planning authority had issued. This may be the cause and the origin of
the acquiring authority’s participation. However, the inspector’s report leaves
no doubt that the acquiring authority’s representative appeared and called evidence
in support of a detailed case against the appellants’ contentions: see the
inspector’s report paras 5.1 to 5.30. Furthermore, the new certificate issued
by Secretary of State for the Environment is conclusive and binding upon the
acquiring authority in the assessment of compensation for the land taken: see
1961 Act section 15(5).
Hence, I
accept that the acquiring authority were party to the section 18 proceedings,
as of course they are party to this present reference. Accordingly, the third
necessary condition for an issue estoppel is satisfied.
Reverting to
the first condition, I agree with the submissions of Mr Spence that in so far
as he seeks to raise an issue estoppel, the issue is the same before the
tribunal as it was before the Secretary of State for the Environment in
determining the section 18 appeal. The claimants in this case seek no more than
to estop the acquiring authority from reopening the issue in these proceedings
as to the assumption of an alternative bypass and its location in the no-scheme
world. The inspector in the section 18 appeal in effect found that in the
no-scheme world there would have been an alternative bypass and that it would
have passed to the east of the constructed route. The Secretary of State for
the Environment accepted and adopted those findings. The adoption of those
findings was fundamental to the success of the appeal. The appeal succeeded and
a positive certificate was issued in respect of the red land precisely because
of the assumption of an alternative bypass on the green line. To adopt the
terminology of Lord Bridge in Thrasyvoulou at p297, it was ‘not merely
incidental or ancillary to the decision but was the essential foundation for
his conclusion …’. Although the Secretary of State for the Environment’s
conclusions were couched in phrases which enabled Mr Katkowski to suggest that
these were matters of opinion or of discretion, I am in no doubt that these
were findings of fact arrived at by evaluating evidence. This is indeed
confirmed by the wording of the certificate itself. I reject the point taken by
Mr Katkowski with regard to the discretionary grant or refusal of planning
permission. That procedure is in no way comparable with the section 17
certificate mechanism. It appears to me to be obvious that neither a land owner
nor a local planning authority can be estopped from, in the one case
repeatedly applying for planning permission, and in the other case granting
planning permission or refusing it.
As it seems to
me, this case falls four-square within the doctrine of issue estoppel,
as conveniently summarised by Lord Denning MR and Diplock LJ in the Fidelitas
case, both passages being cited with approval by Lord
Lord Denning
MR said:
The law as I
understand it is this: if one party brings an action against another for a
particular cause and judgment is given on it there is a strict rule of law that
he cannot bring another action against the same party for the same cause … but
within one cause of action there may be several issues raised which are
necessary for the determination of the whole case. The rule then is that, once
an issue has been raised and distinctly determined between the parties, then as
a general rule, neither party can be allowed to fight that issue all over again
…
Diplock LJ
said:
The final
resolution of a dispute between parties as to their respective legal rights or
duties may involve the determination of a number of different ‘issues’ that is
to say a number of decisions as to the legal consequences of particular facts,
each of which decisions constitutes a necessary step in determining what are
the legal rights and duties of the parties resulting from the totality of the
facts …
The issue
which fell to be decided by Secretary of State for the Environment in the
section 18 appeal was what form of certificate of alternative development was
appropriate in relation to the red land. That certificate would regulate the
respective rights of the parties in relation to compensation for the taking of
that land. But resolution of that dispute involved, I may say necessarily
involved, determination of a different issue, namely what would have happened
if the bypass had not been constructed on the red land. That issue having been
raised and determined, then neither party should be allowed to fight that issue
all over again.
For these
reasons I am satisfied that the plea of issue estoppel is applicable to
the present reference and that the acquiring authority cannot be permitted to
reopen in these proceedings the issues determined by Secretary of State for the
Environment in the section 18 appeal on the basis of which he decided to issue
a positive certificate in respect of the land taken. Accordingly, I determine
the preliminary point of law in favour of the claimants.
I have heard
no submissions with regard to costs, but in the circumstances the order
proposed is that the acquiring authority pay the claimants’ costs of and
incidental to the preliminary point of law in any event. There is liberty to
apply for directions for future conduct of the reference.
Issue estoppel applicable; the acquiring authority could not
reopen the issue.
