Compensation – Planning permission – Certificate of appropriate alternative development (CAAD) – Respondent local authority acquiring site by compulsory purchase – Appellant landowner entitled to compensation – Respondent issuing CAAD rejecting appellant’s valuation of site – Appellant appealing to Upper Tribunal to determine compensation payable – Whether planning permission reasonably expected for appellant’s proposed development – Appeal allowed
A new football stadium was being built at Brentford in the respondent’s borough on a site to the north of Kew Bridge. A significant contribution to the cost of the new stadium was to be met from the sale of flats in ten new apartment buildings on land surrounding the stadium site. Planning permission was granted for the new buildings in 2014.
Three of the new buildings were to be on the site of Capital Court (the site), a redundant 1980s office block which had been vacant for several years. To enable the scheme to proceed the site was compulsorily acquired by the respondent from the appellant pursuant to a compulsory purchase order (CPO). A general vesting declaration vested the site in the respondent on 1 September 2016, which was the valuation date for the assessment of compensation.
A dispute arose between the parties over the value of the land to determine the compensation payable to the appellant. To determine that amount, it was necessary to decide what the appellant might have used the site for if the proposed scheme had not proceeded. In the absence of agreement, the appellant applied to the respondent for a certificate of appropriate alternative development (CAAD) under section 17 of the Land Compensation Act 1961. The appellant proposed that an appropriate alternative development of its site would comprise a residential scheme involving two blocks of between nine and sixteen storeys providing 309 units. Its heritage expert considered that the scheme would cause less than substantial harm to the setting of one of the heritage assets and would not affect any of the others. However, the respondent issued a CAAD on the basis that planning permission was more likely to have been granted for a residential block of 80 units plus 1,500 to 2,000 square metres of office space.
The appellant appealed to the Upper Tribunal, under section 18 of the Land Compensation Act 1961, against the CAAD. The overarching issue was whether, on the relevant statutory assumptions, planning permission could reasonably have been expected to have been granted for the scheme of development proposed by the claimant, or whether permission could only have been expected for the lesser scheme described in the CAAD granted by the respondent.
Held: The appeal was allowed
(1) In assessing the amount of compensation payable, section 14(2)(a) required account to be taken of any planning permission in force on the valuation date for development on the reference land or other land. By section 14(3) it might also be assumed that planning permission was in force on the valuation date for “appropriate alternative development” as defined in section 14(4). Such development meant development for which, on the assumptions in section 14(5) but otherwise in the circumstances known to the market on the valuation date, planning permission could reasonably have been expected to be granted on an application determined on or after the valuation date.
The relevant assumptions required to be made by section 14(5) were: that the scheme underlying the compulsory acquisition had been cancelled on the launch date, as defined in section 14(6); that no action had been taken by the acquiring authority wholly or mainly for the purposes of the scheme; and that there was no prospect of the same scheme or a project to meet substantially the same need being carried out in exercise of a statutory function or by the exercise of compulsory purchase powers.
(2) By section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, in deciding whether to grant planning permission for development which affected a listed building or its setting, the decision maker had to have special regard to the desirability of preserving the building or its setting. By section 72(1), special attention had to be paid to the desirability of preserving or enhancing the character or appearance of conservation areas.
Despite the slight difference in wording, the nature of the duties in section 66(1) and section 72(1) was the same. “Preserving” in both enactments meant doing no harm and a finding of harm to the setting of a listed building was a consideration to which the decision-maker had to give considerable importance and weight. There was a strong presumption against granting planning permission for development that would harm the character or appearance of a conservation area. Even if the harm to heritage assets was found to be less than substantial, in the balancing exercise, considerable weight had to be given to the desirability of preserving the setting of listed buildings and preserving the character and appearance of conservation areas. If the harm to the setting of a listed building would be less than substantial that would plainly lessen the strength of the strong presumption against granting planning permission but did not entirely remove it. The Tribunal had visited the locations of the heritage assets and agreed that harm of any significance would be caused to only one heritage asset setting; and that harm would be at the lower end of “less than substantial”.
(3) The 303 residential units proposed by the appellant was almost three times the upper end of the usual range. Even in the interests of optimising the provision of housing, such a density was unlikely to have been permitted. Rather, the site could have accommodated the 205 units initially permitted as part of the stadium scheme. That would have been acceptable given the emerging development policy. Reducing the number of units to 205 also allowed more opportunity for compliance with housing mix requirements, privacy considerations, the provision of additional recreation space and some increase in ground floor employment space. In all the circumstances, the tribunal was satisfied that a mixed residential and commercial scheme, including 205 apartments in buildings of eleven, nine and seven storeys with ground-floor employment space would likely have received planning consent. Such a scheme would have balanced the borough’s need for regeneration and high-quality housing with the need to avoid harm to heritage assets. Accordingly, the Tribunal would cancel the section 17 certificate issued by the respondent and substitute an alternative certificate reflecting the conclusions reached.
Guy Roots QC and Merrow Golden (instructed by Gateley Plc) appeared for the appellant; Timothy Mould QC and Andrew Byass (instructed by Taylor Wessing LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Pro Investments Ltd v Hounslow London Borough Council
