Compulsory purchase – Alternative development – Land Compensation Act 1961 – Appellant’s site included within area of compulsory purchase order for highway scheme – Application for certificate of appropriate alternative development under section 17 of 1961 Act – Whether planning permission would have been granted for residential development on the site – Whether such grant would have been subject to requirement for affordable housing – Appeal allowed
In October 2014, the Welsh government made a compulsory purchase order (CPO) in respect of land required for the construction of new highways. The appellant’s site, comprising the car park of a former factory in Brynmawr, Blaenau Gwent, was included within the order in connection with improvements to the A465 road.
The appellant applied to the Brecon Beacons National Park Authority, as the local planning authority, for a certificate of appropriate alternative development, under section 17 of the Land Compensation Act 1961, certifying that in the absence of the CPO planning permission would have been granted for residential development on the site. The authority issued a certificate indicating that planning permission would have been granted for industrial, storage and distribution or leisure uses, or for residential development comprising 100% affordable housing, that being an exception to the usual policy on housing developments in the countryside as set out in the Brecon Beacons National Park Local Development Plan (the LDP).
The appellant brought an appeal under section 18 of the 1961 Act, contending that there was no justification for restricting the residential development to 100% affordable housing. It relied on the existence of an extant planning permission for a housing development on the main factory site which had been granted in 2006, with a requirement for only 20% affordable housing. The main factory site was designated in the LDP as a housing commitment for 94 houses. Although the original intention had been to include the appellant’s site within the planning application for the main factory site, it had been excluded when it became apparent that it was to be acquired for the new highway.
The appellant contended that the local planning authority had accepted the principle of residential development on its site and that they should have given due weight to the factors that led them to grant planning permission for the main factory site when considering the section 17 application in respect of the appellant’s site.
Held: The appeal was allowed.
(1) The certification process under section 17 of the 1961 Act required the decision-maker to form an opinion on the description of development that would have been allowed, in the absence of the scheme for which the land was proposed to be acquired, had a planning application been made in accordance with the planning Acts. That involved determining the hypothetical application in accordance with normal planning principles as at the relevant date, including a consideration of section 38(6) of the Planning and Compulsory Purchase Act 2004 so far as it required planning applications to be determined in accordance with the development plan unless material considerations indicated otherwise. The decision-maker could therefore depart from the development plan where appropriate: Harringay Meat Traders Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1744 (Admin) and Tescan Ltd v Cornwall Council [2014] UKUT 408 (LC); [2015] RVR 251 applied.
(2) It was relevant that the appellant’s site, although shown in the LDP as countryside, adjoined the factory site which was designated as a residential commitment. The existence of an extant residential planning permission on the adjoining main factory site was a material consideration to which significant weight should be given. The local planning authority had seemingly failed to give any weight at all to that planning permission, instead relying on their interpretation of the LDP policy on affordable housing exceptions. Their reliance on that policy was misdirected for various reasons. First, although the appellant’s site fell just within the Brecon Beacons National Park, it adjoined and formed a logical extension to the settlement of Brynmawr, which was not in the national park but in the neighbouring authority of Blaenau Gwent county. Further, there was no proven need for affordable housing that could not be met in any other way, and there was no housing needs survey. Moreover, the relevant LDP policy on affordable housing exceptions said that no affordable housing contributions were required in the area in which the appellant’s site was located.
(3) The appellant’s site was a brownfield site which had previously been used in part as hardstanding for car parking. It was in a sustainable location, and, if the highway scheme were cancelled, would be surrounded by the urban form of Brynmawr on two sides, a school on another and the committed residential development of the main factory site on the remaining side. In those circumstances, on the balance of probabilities, planning permission could reasonably be expected to have been granted for residential development on the site, without reliance on the affordable housing exceptions policy, which was not applicable. Since the 20% affordable housing policy that was in force at the date of the permission for the main factory site no longer applied by the relevant date, and the replacement policy contained no requirement for affordable housing, the proper finding was that permission would have been granted for the appellant’s site without any requirement for affordable housing. The section 17 certificate should be altered accordingly.
(4) The appellant failed in a further argument that, in the no-scheme world, its site would have been combined into a larger residential site with the main factory site. Although the scheme was taken to be cancelled at the relevant date, its pre-existence was not to be ignored and it would be wrong to assess what might or might not have happened in the past had the scheme never existed: Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 AC 307; [2000] PLSCS 33 applied.
Emyr Jones (instructed by Harmers Ltd) appeared for the appellant; the acquiring authority did not respond to the appeal.
Sally Dobson, barrister
Click here to read a transcript of Re Mintblue Properties Ltd’s appeal
