Increasingly, the interrelationship between planning control and what might loosely be described as environmental control comes before the courts. In Taff v Highways Agency [2009] UKUT 128 (LC); [2009] PLSCS 279, it arose in the context of the assessment of compensation on the compulsory acquisition of land.
The acquiring authority had compulsorily acquired an area of the claimant’s land to construct a slip road for the M6 toll road. The relevant valuation date was 26 February 2001. The claimant made a compensation claim. This was not agreed, and, in 2007, it was referred to the Lands Tribunal for determination. Much later, a preliminary issue came before the Upper Tribunal (Lands Chamber) in the following terms:
“Whether the use made by the claimant of the subject land at the valuation date is a lawful one for the purposes of section 5(4) of the Land Compensation Act 1961, and should be taken into account in the assessment of compensation.”
Section 5(4) provides that where the value of land is increased by reason of its use or the use of any premises situated on it in a manner that, inter alia, could be restrained by any court or is contrary to law the amount of that increase will not be taken into account.
The claimant had occupied his land since 1980 as a tenant and used it as a scrapyard. In 1996 and 1998, lawful development certificates (LDCs) had been granted and, in 2000, planning permission was obtained for the operation of a metal recycling and scrap vehicle business and a waste transfer station. However, since 1995, certain of the claimant’s operations had required a waste-management licence under the Environmental Protection Act 1990. but the claimant had not applied for one. Carrying out those operations was therefore contrary to law and could have been restrained by the court; hence, the preliminary issue.
The acquiring authority had contended that the use made of the land was unlawful and, accordingly, no increase in value results from those operations should be taken into account in assessing compensation.
The claimant argued that LDCs rendered the scrapyard activity lawful and that they ran with the land and established its basic value regardless of the licensing status of the particular occupier. In the open market, the value of the land to a purchaser would reflect those lawful uses. Whether the claimant had a waste-management licence would be of marginal or no interest to a potential purchaser. It did not run with the land, albeit that it might be transferred to a purchaser as an alternative to the purchaser applying for a new licence.
The tribunal agreed, concluding that the claimant’s use made of the land was lawful and should be taken into account in assessing compensation. However, were increased compensation to be claimed for disturbance based on business operations that could not lawfully have been carried out without a waste-management licence, that element of compensation should not, by virtue of section 5(4), be taken into account.
John Martin is a freelance writer