Compulsory purchase – Certificate of appropriate alternative development – Section 17 of Land Compensation Act 1961 – Claimant’s land acquired by compulsory purchase as part of Olympic site – Land forming part of commercial and industrial area – Claimant seeking certificate of appropriate alternative development for purposes of compensation claim – Whether certificate to include residential development – Whether inspector incorrectly finding such development not reasonably foreseeable in absence of compulsory purchase order – Appeal allowed
By a compulsory purchase order (CPO) made in 2005, the first interested party acquired the appellant’s land as part of the development site for the London 2012 Olympics. The land was located within an area of industrial and commercial development and adjoined a freight railway; it had been used for storing builders’ materials but fell within a zone of proposed large-scale redevelopment of the Stratford area.
The appellant applied to the local authority second interested party for a certificate of appropriate alternative development under section 17 of the Land Compensation Act 1961. For the purposes of its compensation claim, it sought to certify that, in the absence of the CPO, planning permission would have been granted for Class C3 residential use. The authority rejected that claim and granted a certificate confined to Class B1 and B2 business and light industrial uses.
The appellant appealed to the respondent secretary of state, whose inspector identified the main issue as being whether the changes to the area that were proposed by pre–existing planning policy, regardless of the Olympics, were so drastic as to permit residential developments on the appellant’s site to be reasonably foreseeable notwithstanding that it was unsuitable for such development at the time of acquisition. He concluded that residential development was unlikely to be allowed on the appellant’s land owing to factors that included its proximity to noisy freight lines, the proposed realignment of a major road and the surrounding “bad neighbour” uses. The respondent accepted the inspector’s findings and dismissed the appeal. Blake J dismissed the appellant’s application to set aside the respondent’s decision under section 21 of the 1961 Act: see [2010] EWHC 1784 (Admin); [2010] PLSCS 202.
The appellant appealed on the grounds that: (i) the inspector’s reasoning was inadequate in a way that prejudiced the appellant; and (ii) he had adopted an incorrect approach to the development plan provisions applicable to the site.
Held: The appeal was allowed.
The reasoning in the inspector’s recommendation was insufficient to enable it to be properly understood.
He had sought to identify the question before him and understandably started from the position that the existing use of the immediate area was incompatible with residential use, and that some change had therefore to be envisaged. However, he had not clearly distinguished between the two different ways in which such a change might be envisaged as leading to a residential permission on the appellant’s land.
The first would be a comprehensive development of a larger area that included the appeal site. That might assist the appellant’s case for a residential certificate on its site, but only if the likely distribution of uses within such a larger scheme would favour residential use on its land. The inspector would have been entitled to conclude that within such a larger scheme, the residential use would gravitate towards the more attractive southern parts of the area, so that there would be no reason to expect permission to be granted on the appeal site in order to meet the London Plan objectives: Sutton v Secretary of State for the Environment [1984] 1 EGLR 173; (1984) 270 EG 144 considered.
The second possibility was for a separate development of the appeal site designed to kick-start the development of the remainder of the area. The inspector might have rejected that argument on the ground that it would contravene the principle of comprehensive development, and that the immediate environment, both then and following the construction of the new road, would be unsuitable for residential use. Had he done so in unequivocal terms, his reasoning on such a matter of planning judgment would have been difficult to challenge in the courts.
However, it was impossible to read the inspector’s report as amounting to a clear adoption of the local authority’s case, nor was it based on considerations that applied to an ordinary planning application. Rather, his findings appeared to be based on his misunderstanding of the respondent’s guidance in respect of the section 17 procedure pertaining to the certificate. Accordingly, the respondent’s decision would be quashed and the respondent, in consultation with the parties, would decide how then to proceed.
With regard to the development plan, the inspector had legitimately concluded that neither statutory plan provided direct guidance as to the form of development appropriate on the site, and therefore, at least by implication, that the statutory presumption was of little relevance. He had been entitled to treat the statutory wording as being directed to something more specific than, for example, indications of the general desirability of mixed use development (as in the London Plan) or of lack of objection to housing within the area as a whole. In the absence of such help in the statutory plans, he had been entitled to look to the non-statutory guidance for more direct assistance. Such guidance was a material consideration, but was not given special presumptive status by section 38(6) of the 1961 Act.
John Hobson QC and Lisa Busch (instructed by Finers Stephens Innocent LLP) appeared for the appellant; Daniel Kolinsky (instructed by the Treasury Solicitor) appeared for the respondent; Guy Roots QC (instructed by Eversheds LLP) appeared the first interested party; the second interested party did not appear and was not represented.
Eileen O’Grady, barrister
