Section 17 of the Land Compensation Act 1961 enables both the landowner and the acquiring authority, on a proposed compulsory purchase of land, to apply to the local planning authority (LPA) for a certificate of appropriate alternative development. The purpose of such a certificate is to establish what development might have been permitted, had there been no compulsory purchase, so as to assist in the assessment of the compensation payable. The decision in Kingsley v Highways Agency [2011] UKUT 446 (LC); [2012] PLSCS 34 illustrates an important consideration in drafting the certificate.
In that case, the landowner owned 31 acres of agricultural land that was affected by a proposal for a new trunk road. He served a blight notice, giving rise to a deemed compulsory purchase of the land, and applied to the LPA for a certificate. The certificate that was issued stated that in the opinion of the LPA planning permission would have been granted for a number of classes of development. These included residential development comprising affordable housing or agricultural workers’ dwellings “subject to satisfying the criteria in” certain identified local plan policies. One of those criteria was that the site should be located in or adjoining an existing village. Disagreement between the landowner and the acquiring authority in the context of that criterion resulted in a preliminary issue being determined by the Upper Tribunal.
The Upper Tribunal determined the preliminary issue in favour of the acquiring authority, ruling that despite the wording of the certificate, the development for which planning permission was to be assumed did not include residential uses. It was necessary to construe the certificate in the light of the governing statutory provisions. To the extent that the certificate required compliance with local plan policies, it did not accord with section 17. A statement that planning permission would have been granted “subject to” those policies necessarily implied that planning permission might or might not have been granted. Section 17 required an unqualified statement.
Earlier, the acquiring authority had unsuccessfully sought permission from the Upper Tribunal to apply for a further certificate specifying more limited development. Section 232 of the Localism Act 2011, when it is brought into force, will amend the 1961 Act by introducing a right of appeal to the Upper Tribunal against a section 17 certificate. This will improve the position of an acquiring authority facing a difficulty similar to the one faced in this case.
John Martin is a freelance writer.