Land Compensation Act 1961–Certificates of appropriate alternative development–Appeals from decisions of Secretary of State confirming certificates specifiying open forms of development only–Question as to whether the planning authority and the Secretary of State should have regard only to the circumstances at the date of the offers to purchase or whether regard should be had to the facts at the date of decisions–‘Jelson Ltd v Minister of Housing and Local Government’ discussed and distinguished–Held that the Secretary of State should have taken into account planning circumstances and policies at the date of his decisions–Decisions quashed on that ground but allegations of obscurity and self-contradiction in decisions rejected
These were two
applications under section 21(1) of the Land Compensation Act 1961, seeking to
quash two decisions of the Secretary of State for the Environment issuing
certificates of appropriate alternative development under section 17 of that
Act. The decisions were given under section 18 on appeal from decisions of the
local planning authority. Both cases raised the same questions and were argued
together, although the application of Hitchins raised an additional question.
The primary
question was whether, in making his decision, the Secretary of State should
have regard to, or disregard, planning circumstances which were extant at the
time of the decision but not at the time of the relevant proposal to acquire
the land.
Duncan Ouseley
(instructed by Manches & Co, agents for Robins & Co, of Cheltenham)
appeared on behalf of the applicant Hitchins; William Stewart-Smith (instructed
by Gregory, Rowcliffe & Co, agents for Kingsley Smith & Co, of
Gillingham appeared for the applicant Wakeley; Harry Woolf (instructed by the
Treasury Solicitor) represented the Secretary of State in both applications.
Giving
judgment, SIR DOUGLAS FRANK said that section 17 provided a means of
determining, for the purpose of assessing compensation payable to a landowner
on compulsory acquisition of his land, the notional planning status of the land
to be acquired, and it was common ground that the section applied to the
circumstances of these applications. Section 18, giving a party aggrieved a
right of appeal to the minister against a certificate issued by the local
planning authority under section 17, required the minister to determine the
matter as if an application for a certificate under section 17 had been made to
him in the first instance.
The land in
Hitchins’ case was about 3.8 acres at Quedgeley, Gloucestershire. On April 7
1975 the county council offered to purchase the site for the purpose of
extending an adjoining school. Hitchins’ solicitor on May 5 sought a
certificate for residential development under section 17. On September 24 a
certificate was issued stating that planning permission might reasonably be
expected to be granted only for an open form of development. Hitchins appealed,
and by his decision letter of March 14 1977 the Secretary of State decided to
confirm the certificate. In that letter, the Secretary of State said that the
view was taken that the local planning authority, and the Secretary of State on
appeal, were required to have regard to the facts as they were at the date of
the written offer to purchase–in this case April 7 1975–and arguments based on
publications or other matters arising after that date had accordingly been
disregarded.
The land in
Wakeley’s case was some five acres at Upchurch, Kent, which was divided into
four sites. On July 16 1971 the county council offered to acquire the whole
five acres, but subsequent negotiations were abortive. On February 28 and June
4 1974 Wakeleys applied for certificates in respect of each of the four sites.
Each application specified residential development. On November 20 certificates
were issued specifying only open forms of development. Appeals were lodged
against all four certificates. By his decision letter of March 25 1977 the
Secretary of State decided to confirm them. The letter stated that the view was
taken that the local planning authority, and the Secretary of State on appeal,
were required to have regard to the facts as they were on the earliest date on which
a valid application for a certificate of alternative development could have
been made having regard to the provisions of section 22(2) of the Act; and that
the Secretary of State had therefore considered the four appeals before him in
the light of the circumstances relevant at July 16 1971, and had not taken into
account any subsequent events such as, for example, the issue of circulars nos
102/72 and 122/73.
The submission
of both appellants was that the Secretary of State was wrong in law as to the
time at which the hypothetical question posed by section 17(4) of the 1961 Act
fell to be considered. They argued that the Secretary of State should have
regard to the facts as they were at the date of his decision–March 4 1977 in
Hitchins’ case, and March 25 1977 in Wakeley’s.
They contended
that the Secretary of State’s jurisdiction was similar to that of determining
appeals against refusals of planning permission where he takes the facts as
they are at the time of his determination. They submitted that it seemed
nonsensical that although the Secretary of State was required to have regard to
a likelihood of planning permission being granted in the future yet he should
be blinkered as to the current evidence of that probability. His Lordship had
drawn the attention of counsel to Bwllfa and Merthyr Dare Steam Collieries
(1891) Ltd v The Pontypridd Waterworks Co [1903] AC 426, and
particularly the words of Lord Macnaghton at p 431:
In order to
enable him (the arbitrator) to come to a just and true conclusion it is his
duty, I think, to avail himself of all information at hand at the time of
making his award which may be laid before him. Why should he listen to
conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him, why should he shut
his eyes and grope in the dark?
Those words, mutatis
mutandis, were singularly apt to the functions of the Secretary of State in
the context of the scheme
or, in default of agreement, the Lands Tribunal, to know what assumptions as to
planning permission were to be made in assessing the price to be paid by an
acquiring authority. Without it, the Lands Tribunal would have to carry out in
effect the purely administrative function of the Secretary of State in deciding
whether as a matter of policy planning permission might be granted. It was not
fitting that a judicial body should have to ascertain the policies of an
administrative body at any particular time.
The relevant
date for the assessment of compensation was whichever was the earlier of the
date of entry or the date at which compensation fell to be determined. If the
compensation was determined by the Lands Tribunal the relevant date was the
date of such assessment by the tribunal: West Midland Baptist (Trust)
Association (Inc) v Birmingham Corporation [1970] AC 874; W
& S (Long Eaton) Ltd v Derbyshire County Council
(1976) 31 P&CR 99. Hence the reliability of a certificate would increase
the nearer it was given to the date of entry or the date of hearing, as the
case might be. It followed that a certificate given in the light of planning
policies applicable at the time of the decision accorded more with the scheme
of the Act than one made at an antecedent date.
Were his
Lordship considering these cases in the absence of authority he would conclude
that the Secretary of State should have had regard to planning policies at the
time of his decision. But Mr Woolf contended that his Lordship was bound by
authority to the contrary, in particular by Jelson Ltd v Minister of
Housing and Local Government [1970] 1 QB 243. It was apparent that the ratio
decidendi of Browne J (as he then was) in that case was that it was
sensible that the certificate should relate to circumstances as they existed at
the date of the assessment of compensation, which he thought to be the date of
the notice to treat. However, that judgment predated the decision in the West
Midland Baptist Trust case above cited, the effect of which was that the
date for the assessment of compensation was not the date of the notice to
treat, but as his Lordship had stated. Browne J was concerned to secure
coincidence in time and if he had had the benefit of the West Midland Baptist
Trust case he would, by parity of reasoning, have selected the latest
possible date for the certificate. It was clear that the arguments before
Browne J centred on the question whether the minister was right in deciding the
case ‘by reference to the real physical facts as to the sites as they existed
at any time after the adjoining land had been developed.’ In the Court of Appeal in the Jelson
case, Lord Denning MR said that the appellants submitted ‘that the date should
be some time in the distant past’ and Phillimore LJ asked the question: ‘Can
one look back to past events and consider the factors which brought about the
state of the land as it is at the date of the notice to treat?’ It seemed to follow that what the Court of
Appeal decided in the Jelson case was that the state of the land was to
be taken in its existing state at whichever of the three dates specified in
section 22 applied, ie the notification of the making of a compulsory purchase
order, the date of a deemed notice to treat, or the date of an offer to
negotiate to purchase.
What the court
did not decide was whether it was necessary that the Secretary of State should
have regard only to the planning policies operative on the date specified, and
not, as he had contended, also to any policies extant at the time of making his
decision. For that reason the Jelson case appeared to his Lordship to be
distinguishable. Having regard to the scheme of the Act, and the ratio
decidendi of Browne J, it seemed that the application of the planning policies
should as nearly as possible coincide with the date of the assessment of
compensation.
Thus his
Lordship thought that on the true analysis of the Jelson case the land,
and the area in which it was situated, must be taken rebus sic stantibus
as it was on the appropriate date as his Lordship had specified, but, subject
to that rule, the Secretary of State should deal with the matter in the same
way as he dealt with a planning appeal, ie he should take into account his then
current planning policies. Neither Browne J nor the Court of Appeal in the Jelson
case had dissented from the minister’s assertion that he could look at the
planning circumstances after, as well as at, the date of the relevant proposal
to acquire.
His Lordship
was pleased to have reached this conclusion, because it seemed to comply with
the scheme of the Act and commonsense, and should be to the advantage of
everybody concerned. It further reduced the likelihood of the Lands Tribunal
making a planning decision embarrassing to the Secretary of State.
Mr Ouseley,
for Hitchins, had further argued that the Secretary of State’s reasons for his
decision were obscure and contradictory, because on the one hand he found that
it would not have been unreasonable to have expected that considerable areas of
land in an area which included the Hitchins’ site would be progressively released
for housing at some time in the future, yet on the other hand said that
planning permission could not reasonably be expected in the foreseeable future.
His Lordship found no obscurity or contradiction in the Secretary of State’s
reasons. As his Lordship construed them they were that, although the general
area including the Hitchins’ site might be expected to be released for housing
at some time in the future, that time was so uncertain that it was impossible
for him to foresee it. In any event, the boundary of the school would be likely
to be a suitable boundary for the area to be developed, in which event the
appeal site would be outside that area. Accordingly, his Lordship would not
allow the appeal on those grounds.
In view,
however, of his Lordship’s other findings, the decisions would be quashed and
remitted to the Secretary of State.
The appeal
was allowed with costs.