Land Compensation Act 1961 — Certificates of appropriate alternative development — Applications by developer to quash decisions of Secretary of State confirming certificates (in one case a letter treated as a notional certificate) under section 17(4)(b) of the 1961 Act issued by two planning authorities to the effect that planning permission would not have been granted for any development other than that proposed by the authority — Secretary of State held to have been in error in three respects — (1) It was wrong to exclude from consideration the possibility of development on a site comprising the applicant’s land and other land neither under his ownership nor his control — (2) It was wrong to exclude consideration of possible development on the ground that it was of an exceptional nature and therefore not development of a particular ‘class’ — (3) It was wrong to have regard to the likelihood or unlikelihood of the development taking place, whether this turned on the likelihood of the permission actually being sought or of its being implemented if granted — Applications granted to quash both negative certificates and cases remitted to the Secretary of State for redetermination in the light of the judgment
These were two
applications by Cecil Roland Sutton under section 21 of the Land Compensation
Act 1961 to quash decisions of the Secretary of State confirming a certificate
issued by Cleethorpes Borough Council and a ‘notional certificate’ issued by
Great Grimsby Borough Council in the negative terms of section 17(4)(b) of the
Act. The applications related to adjacent plots, one of some 53 acres in the
Cleethorpes area and one of some 4 acres in the Great Grimsby area.
M
Burke-Gaffney QC and Justin Fenwick (instructed by Stoneham Langton & Passmore)
appeared on behalf of the applicant; Simon Brown (instructed by the Treasury
Solicitor) represented the first respondent, the Secretary of State; the second
and third respondents, Cleethorpes Borough Council and Great Grimsby Borough
Council, were not represented and took no part in the proceedings.
Giving
judgment, McCULLOUGH J said: These applications are brought under section 21(1)
of the Land Compensation Act 1961. They relate to adjacent plots of land, one
(of some 53 acres) within the area of the Cleethorpes Borough Council, the
other (of some 4 acres) within the area of the Great Grimsby Borough Council.
Both are owned by the applicant, Mr Sutton.
On November 9
1979 the draft of a compulsory purchase order affecting the land in question
was published. The order was made on January 19 1981 and is known as The
Sheffield-Grimsby Trunk Road (Brigg bypass to Grimsby section) Compulsory
Purchase Order 1981. Notice to treat was served on Mr Sutton’s agents on April
1 1981 and the land was entered on September 29 1981. Meanwhile, in relation to
the 53 acres, on August 26 1981 Mr Sutton’s agents applied to the Cleethorpes
Borough Council for a certificate of appropriate alternative development under
section 17 of the Land Compensation Act 1961. The classes of alternative
development which Mr Sutton’s agents stated would be appropriate were light
industrial and warehousing. On November 12 1981 the Cleethorpes Borough Council
issued to Mr Sutton a certificate stating that planning permission would not
have been granted for any development other than that proposed to be carried
out by the acquiring authority. This was a certificate under section 17(4)(b)
of the Act. On March 15 1982 Mr Sutton gave notice of appeal to the minister
against that certificate.
On September
11 1981 Mr Sutton’s agents applied to the Great Grimsby Borough Council for a
certificate of appropriate alternative development in respect of the 4 acres.
The alternative development which Mr Sutton’s agents stated would be
appropriate was residential or light industrial or warehousing. The Great
Grimsby Borough Council failed to issue a certificate within the prescribed
time. However, on April 14 1982 they wrote expressing their opinion that no
such alternative development would have been permitted. Mr Sutton treated this
letter as if it were a certificate issued under section 17(4)(b) and on April
29 1982 he purported to give a notice of appeal to the minister against it. On
July 27 1982 the Secretary of State wrote to Mr Sutton saying that his notice
would be treated as one given under section 18(4) of the Act, which gives an
applicant a right of appeal where a local planning authority has not issued a
certificate within the time prescribed.
Before he
determined the two appeals the Secretary of State appointed Mr T G Holden to
hold a local inquiry. It was held on November 23 and 24 1982. The inspector
reported to the Secretary of State on December 21 1982. The inspector concluded
that residential development on the Grimsby land would not have been appropriate.
The Secretary of State agreed with this conclusion and Mr Sutton does not
challenge it. The inspector recommended that the Secretary of State should
grant a certificate in relation to the Grimsby land, stating that, subject to
certain reservations and conditions, outline planning permission would have
been given for use of part of the Grimsby land together with other land for a
single, substantial, general, industrial use which would not have been
hazardous nor would have caused nuisance to neighbouring residential
properties.
He also
recommended that the certificate issued by Cleethorpes Borough Council be
discharged and that the Secretary of State issue a new certificate stating that
outline planning permission would have been given for part of the Cleethorpes
land in the same terms as those which he had recommended for part of the
Grimsby land and that outline planning permission would have been given for a
further part of the Cleethorpes land together with other land for a single,
substantial, general, industrial use subject to the same reservations and
conditions. These recommendations were all made subject to the Secretary of
State’s consideration of certain legal issues.
The Secretary
of State, having considered the inspector’s findings, conclusions and
recommendations and the legal issues, decided to confirm the certificate issued
by the Cleethorpes Borough Council and to confirm what he called the notional
certificate under section 17(4)(b) deemed to have been issued by the Great
Grimsby Borough Council. Mr Sutton now applies to the High Court for an order
quashing these decisions. It is accepted that he is a person aggrieved and
that, if and in so far as the minister failed to comply with the
recommendations of the 1961 Act, Mr Sutton has been substantially prejudiced
thereby. He submits that the decisions were not within the powers of the Act
and alternatively that the requirements of the Act were not complied with in
relation to them.
The 53 acres
are in the shape of a very slenderly drawn T. On the upper part of the T, part
of the A180 road (that is the Brigg bypass to Grimsby section of the Sheffield
to Grimsby trunk road) either is being or has recently been built. There is, or
there is to be, a feeder road on the leg of the T. The inspector did not regard
any development on the leg as appropriate. No complaint is made of this and it
ceases to be material. The A180 runs roughly east and west. To the east of the
eastern end of the cross of the T, at a point which marks the boundary between
Cleethorpes and Grimsby, the road passes on to land no longer in Mr Sutton’s
ownership. Beyond this to the east the road is built on part of the 4 acres
which is in Grimsby. The remainder of the 4 acres lies to the south of the A180
and this, too, is immaterial for present purposes.
On January 6
1981 outline planning permission was given to Bowater-Scott Corporation Ltd to
build a factory on some 40 acres of land immediately to the north of the
eastern end of the section of the road in question. This was to make and store
soft paper and tissue products only. It was found by the inspector that, had
the A180 not followed the alignment on which it is being built, the
Bowater-Scott site, as I propose to call it, would have been extended further
to the south and further to the west and would therefore have included the
whole of the subject land on which the A180 is being built in Grimsby and part
of the subject land on which it is being built in Cleethorpes. In the event
Bowater-Scott did not implement that permission and have lost interest in the
site.
In 1981 the
Japanese car-manufacturing company Nissan expressed an interest in about 800
acres of land in Cleethorpes as a possible site for the construction of a
factory. Nissan’s choice of site was significantly influenced by the position
in which the A180 was being built. The site lay entirely to the north of the
road and had a long southern frontage to it. The site was not defined with any
precision. Nissan mentioned this interest to the planning authorities in
Humberside in spring 1981. Both the Humberside County Council and the
Cleethorpes Borough Council looked with favour on the idea. They thought its
benefit in terms of employment outweighed any other considerations of land use
and they would have been prepared to grant planning permission had an
application for it been made. In fact Nissan have not, so far at any rate, made
any application.
The inspector
considered that, but for the position of the A180, if Nissan or any other
developer were to seek outline planning permission for a proposal of this
magnitude in this approximate area, the southern boundary of the site in
question would have been sufficiently far south to include the whole of the
subject land to the south.
The eastern
tip of the land in which Nissan were interested projects into the Bowater-Scott
site. I can ignore this small overlap. For practical purposes one can treat Mr
Sutton’s land which is the subject of this application as divided into two
areas, a larger western area, all in Cleethorpes, which I shall call,
inaccurately, the Nissan section, and a smaller eastern area, partly in
Cleethorpes, partly in Grimsby, and interrupted by a section not in his
ownership, which I shall call, inaccurately, the Bowater-Scott section.
Prior to the
commencement of the road works, the whole of the land was in agricultural use.
With one exception no relevant statement of planning policy contemplated any
departure from this. The exception was the Humberside Structure Plan, which had
been approved by the Secretary of State in March 1979. In para 8.17 there was a
reference to a particular need for land close to the Humberside urban area for
general industry to be made available in accordance with a phased programme.
The inspector found that none of the subject land would have been made
available in consequence of this particular policy.
Para 8.25 of
the structure plan set out the policy for industrial proposals on land not
already committed. Its effect was that permission was not normally to be
granted in excess of the provision proposed in para 8.17 for new development
which would take good-quality agricultural land unless that development had
significant employment benefits and could not reasonably be implemented on
other lower grade land in the vicinity. In these exceptional circumstances the
development was to be restricted to the area essential for operational
purposes.
The inspector
found, and Mr Sutton does not seek to go behind it, that in relation to both
the Bowater-Scott and the Nissan sections the only alternative development
which would have been appropriate would have been development in accordance
with the policy set out in paragraph 8.25. Nevertheless the Secretary of State
declined to order the issue of positive certificates under section 17(4)(a) of
the Act.
A reading of
paras 9 to 12 inclusive of his decision letter reveals that the inspector’s
thinking was as follows: (1) In considering what classes of alternative
development would have been appropriate, regard can properly be paid to the
possibility of development on a site comprising the subject land and other land
in Mr Sutton’s ownership, but not to the possibility of development on a site
which also comprised land under neither his ownership nor his control; (2)
Nissan’s interest was in development of such an exceptional nature that it
could not properly be regarded as development of a particular ‘class’ in the
sense in which that word is used in section 17; (3) In considering whether or
not to issue a positive certificate under section 17(4)(a) regard can properly
be paid to the likelihood or unlikelihood of the development taking place. It
is not altogether clear to me whether the Secretary of State was talking in
terms of the likelihood of the necessary permission being sought or likelihood
of the permission, if granted, being implemented; however the distinction is
immaterial.
Mr Burke-Gaffney,
for Mr Sutton, contends that (1) was wrong in law and Mr Brown, for the
Secretary of State, concedes this. The reasons in my judgment why this is so
are shortly these. A plot of land may, as a matter of fact, be developed on its
own or as part of a larger area of land which may or may not, at the time of
the application for the necessary permission, be in the same ownership as the
plot. If so, then the plot has added value on this account and the landowner
should, in principle, be compensated for the addition if his land is
compulsorily purchased.
There is
nothing in section 17 to suggest that the intention of Parliament was
otherwise. The bracketed phrase in section 17(7) strongly suggests that land in
other ownership should be taken into account. Section 17(7) reads as follows:
In
determining, for the purposes of the issue of a certificate under this section,
whether planning permission for any particular class of development might
reasonably have been expected to be granted in respect of any land, the local
planning authority shall not treat development of that class as development for
which planning permission would have been refused by reason only that it would
have involved development of the land in question (or of that land together
with other land) otherwise than in accordance with the provisions of the
development plan relating thereto.
A further
indication is provided by section 14 and in particular by section 14(4)(b). I
read section 14(1) first:
For the
purpose of assessing compensation in respect of any compulsory acquisition,
such one or more of the assumptions mentioned in sections 15 and 16 of this Act
as are applicable to the relevant land or any part thereof shall be made in
ascertaining the value of the relevant interest.
Section 14(4)
reads:
For the
purposes of any reference in this section, or in section 15 of this Act, to
planning permission which is in force on the date of service of the notice to
treat, it is immaterial whether the planning permission in question was granted
. . . (b) in respect of the land in question taken by itself or in respect of
an area including that land.
Similarly,
section 16(1) and (2). Section 16(1) reads:
If the
relevant land or any part thereof (not being land subject to comprehensive
development) consists or forms part of a site defined in the current
development plan as the site of proposed development of a description specified
in relation thereto in the plan, it shall be assumed that planning permission
would be granted for that development.
Section 16(2)
reads:
If the
relevant land or any part thereof (not being land subject to comprehensive
development) consists or forms part of an area shown in the current development
plan as an area allocated primarily for a use specified in the plan in relation
to that area, it shall be assumed that planning permission would be granted, in
respect of the relevant land or that part thereof, as the case may be, for any
development which
and I need not
read the rest of subsection (2). Thus, it is enough if the land in question is
only part of a site where development of a particular description is proposed
or part of an area allocated for a particular use, regardless of whether the
site as a whole, or the area as a whole is in the same ownership.
Mr Brown also
concedes that the Secretary of State erred in law in the second respect
submitted by Mr Burke-Gaffney, namely, in saying that the development proposed
by Nissan was not development of a particular ‘class’. The words ‘class’ and
‘classes’ used in section 17 are not defined in the Act. Neither Mr
Burke-Gaffney nor Mr Brown contends that they should be treated as bearing the
same meaning as in, for example, the Town and Country Planning General
Development Order 1972 or the Town and Country Planning (Use Classes) Order
1972. Mr Burke-Gaffney suggested that a class is simply that which can be
classified. I think this is right. In Essex Construction Co Ltd v Minister
of Housing and Local Government (1968) 8 RVR 818 at 824, Cooke J described
the phrase ‘classes of development’ as very general and said its generality was
reflected by the 12 uses which had been specified in that case, eg ‘private
schools’ and ‘convalescent homes’.
If any
contrary view were correct, manifest injustice would result. Suppose Nissan,
like Bowater-Scott, had applied for planning permission for land immediately
north of the subject land. Suppose that the inspector had found and the
Secretary of State had accepted that, had the A180 not been built in its
present alignment, it would have been built 100 yds further south and that in
that event Nissan would have applied for and would have obtained planning
permission for the subject land. Parliament can hardly have intended that Mr
Sutton should be refused a certificate under section 17(4)(a) merely because
the proposed Nissan development was of an exceptional nature. All development
can surely be classified in one way or another.
If, contrary
to the contentions of both counsel, the classes referred to in section 17 are
those in the Town and Country Planning (Use Classes) Order 1972, then the
Nissan development would be in the industrial class, in other words it would
still be development of a class. In that event a positive certificate under
section 17(4)(a) would be given and an indication would be given pursuant to
section 17(5) that conditions would have been imposed inter alia to the
effect that the permission was limited to a factory making motor cars.
I have no
doubt that Mr Burke-Gaffney’s third submission, that the likelihood of
permission being sought or implemented is irrelevant, is also sound. Again Mr
Brown concedes the argument, but with one reservation to which I will return. I
see nothing in section 17 to suggest that such likelihood is a matter for the
local planning authority’s consideration. The words in the section are whether
planning permission ‘would have been granted’. In my judgment, the section
presupposes that an application would have been made. The deemed permission
does not of itself increase the value of the land. It is for the Lands Tribunal
to assess the increase in value, if any, and one of the factors for it to take
into account is the likelihood that the development would have taken place.
I turn to Mr
Brown’s reservation. He recognises that the Act permits the issue of only two
types of certificate (one stating that some development would be appropriate
and the other stating that none would be). He accepts that it would be
unfortunate if a positive certificate could not be issued to a claimant whose
land would have been granted planning permission for a particular type of
development, merely because it was relatively unlikely that an application for
such development would have been made. He asserts, however, that it is
important that a positive certificate should not give the claimant a greater
advantage before the Lands Tribunal than the development potential of his land
truly warrants. The Secretary of State fears that section 17 may not be
sufficiently flexible to achieve fairness in certain cases.
Mr Brown
instances what I might call a Nissan-like development, that is development of
an exceptional nature involving a very large area of land in varying ownerships
and one for which planning permission would be sought only in exceptional
circumstances. He questions whether, in a positive certificate relating only to
part of this land, section 17(5) would permit there to be specified in it a
condition relating to the other land which would be involved in the
development. Mr Brown’s concern stems from the principle that no condition can
validly be attached to a planning permission if it relates to land which is not
the subject of the permission and is not in the control of the applicant. To an
extent Mr Burke-Gaffney has accepted that the question is a real one.
In my
judgment, if it be a difficulty, it is one which stems, not from the relative
unlikelihood of an application of the type in question being made, but from the
fact that the development in question would involve land other than the subject
plot and which is outside the control of the owner of the subject plot. I do
not believe that the terms of section 17(4) and (5) give rise to any difficulty
in the circumstances under consideration. Take Nissan’s interest as an example.
To state in a positive certificate issued to Mr Sutton under section 17(4)(a)
that planning permission would have been granted for the use of the land
together with a further area of some 750 acres, but that it would only have
been granted subject to specified conditions, would not be to impose any condition
on any of the 750 acres which was owned by someone other than Mr Sutton.
Section 17 is not concerned with what is permitted or what conditions
are being imposed; it is concerned with what would have been permitted
and what conditions would have been imposed. It is concerned not with
the actual, but with the hypothetical. If, however, this would offend against
the principle to which I have referred, I see no objection in law to regarding
the ‘class’ of development referred to in the positive certificate issued under
section 17(4)(a) as, in the example that I have chosen, a factory occupying a
total of 800 acres of which the land in respect of which the certificate was
issued formed only part.
Mr Brown
canvassed the possibility that there might need to be read into the Act an
implication that a positive certificate could be refused, even although the
development in question would in theory have been permitted, if there was in
the opinion of the local planning authority no reasonable possibility of such permission
being sought with a view to its implementation. In the light of what I have
said, I see no need for any such implication. Nor do I believe any would be
drawn.
Mr
Burke-Gaffney further submits, and Mr Brown further concedes, that there was no
evidence before the Secretary of State to justify the conclusion which he
expressed in the second sentence of para 11 of his decision letter. To make
sense of it, I should read the first as well:
In any event,
the inspector found as a fact, which is accepted, that the proposal for the new
A180 Trunk Road adjoining the Nissan site was of major importance to that firm
in the selection of that location. In the absence of that particular road it is
thought unlikely that the Nissan Development itself would have been granted and
accordingly the existence of the Nissan proposal cannot be used as
justification for a similar development on the Cleethorpes site.
In the event,
the Secretary of State’s decisions in relation to both plots of land are
quashed and the matter must go back to the Secretary of State for
redetermination.
Costs were
awarded against the Secretary of State.