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 wrong to find such development not reasonably foreseeable in absence of compulsory purchase order – Claim dismissed
By a compulsory purchase order (CPO) made in 2005, the second interested party acquired the claimant’s land as part of the development site for the London 2012 Olympics. The claimant’s 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-sale redevelopment of the Stratford area.
The claimant applied to the first interested party, the local authority, 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 given for Class C3 residential use of its land. The authority rejected that claim and granted a certificate confined to Class B1 and B2 business and light industrial uses.
The claimant appealed to the defendant secretary of state, whose inspector identified the main issue to be 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 claimant’s site to be reasonably foreseeable notwithstanding that it was unsuitable for such development at the time of acquisition. He took into account the planning framework set out in various documents and noted that planning policies promoted comprehensive mixed-use development of the area, including high-quality residential development on appropriate sites, including nearby riverside land. He attached most weight to the last of these and concluded that residential development was unlikely to be permitted on the claimant’s land owing to factors that included its proximity to noisy freight lines and the proposed route for the realignment of a major road and the surrounding “bad neighbour” uses.
The claimant applied, under section 21 of the 1961 Act, to set aside the defendant’s decision. It contended that the inspector had, inter alia, failed to recognise that the relevant statutory planning guidance required mixed-use residential development in the absence of reasons to the contrary and had given inadequate reasons for his decision.
Held: The claim was dismissed.
An application for a certificate under section 17 of the 1961 Act was to be treated as though it were a planning application, but one based on the hypothesis that the development that gave rise to the CPO would not take place. Although the application could contemplate future development, the applicant had to identify the times at which such development could be appropriate. Where it would not be immediately appropriate, the circumstances in which it would become so had to be identifiable and foreseeable.
Read as a whole, the inspector’s decision did not indicate that he had either misunderstood the contents of the relevant planning guidance or the nature of his duty in applying it to the site. In the absence of a development plan that identified the nature of permitted or prohibited development on the claimant’s site, the question of what weight should be accorded to either the statutory development plan or supplementary materials was a matter for the inspector, subject to the court’s supervision on ordinary judicial review principles. Although the desirability of comprehensive development for the area was not conclusive against any development of the claimant’s site alone, it was relevant to consider whether residential use should form part of any development of that site, given the adverse environmental factors. The relevant planning policies did not require a residential element independent of environmental considerations. The inspector had been entitled to conclude that, even on the most favourable scenario that might reasonably be contemplated, the railway and road sufficiently militated against residential development on the claimant’s site, especially given that development plans for the surrounding area would provide ample accommodation for residential needs in more suitable spots including by the riverside. The inspector’s reasoning was adequate and, even if it were not, the claimant had not suffered detrimentally so as to justify quashing the inspector’s decision.
John Hobson and Lisa Busch (instructed by Finers Stephens Innocent LLP) appeared for the claimant; Daniel Kolinsky (instructed by the Treasury Solicitor) appeared for the defendant; Guy Roots QC (instructed by Eversheds LLP) appeared for the second interested party; the first interested party did not appear and was not represented.
Sally Dobson, barrister