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UPPER TRIBUNAL
(LANDS CHAMBER)
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UT Neutral citation number: [2011] UKUT 446 (LC)
UTLC
Case Number: ACQ/262/2010
TRIBUNALS,
COURTS AND ENFORCEMENT ACT 2007
COMPENSATION –
compensation – preliminary issue – section 17 certificate – meaning and effect
IN
THE MATTER OF A NOTICE OF REFERENCE
BETWEEN MICHAEL
KINGSLEY Claimant
and
HIGHWAYS AGENCY Acquiring
Authority
Re:
Land at Hill Green Farm
Woodford Road
Poynton
Cheshire
Before:
The President
Sitting
at 43-45 Bedford Square, London WC1B 3AS
on
23 September 2011
Robin Purchas QC instructed
by Dechert LLP for the claimant
James Maurici instructed
by Treasury Solicitor for the acquiring authority
The following cases are referred to in this decision:
Kingsley v
Highways Agency ACQ/262/2009, [2010] UKUT 309 (LC)
Wilson v
West Sussex County Council [1963] 2 QB 764
Trinder v
Sevenoaks Rural District Council (1967) 204 EG 803
East Suffolk County Council v Secretary of State for the Environment (1972)
70 LGR 595
The following further cases were
referred to in argument:
R v Carrick District Council,
ex p Shelley [1996] Env LR 273
Re Magrath [1934] KB 415
Rooff Ltd v Secretary of
State for Communties and Local Government [2011] EWCA Civ 435
Pearce v Aughton Parish
Council (1973) 26 P & CR 357
Secretary of State for
Communities and Local Government v Bleaklow Industries Ltd [2009] 2 P &
CR 21
Suburban Property Investment
Ltd v Secretary of State for Communities and Local Government [2009] EWHC 2018 (Admin)
Smith v East Elloe District
Council [1956] AC 736
R v Restormel Borough
Council, ex p Corbett [2001] 1 PLR 108
R (Neptune Wharf Ltd) v
Secretary of State for Trade and Industry [2007] 2 P & CR 20
I’m Your Man Ltd v Secretary
of State for the Environment (1999) 77 P & CR 251
Jeffery v First Secretary of
State [2007] EWCA Civ 584
DECISION ON A PRELIMINARY ISSUE
1.
The reference in this case concerns a claim for compensation for the
deemed compulsory acquisition of land pursuant to a blight notice. The land,
an agricultural unit of about 12.60 hectares (31.11 acres) known as Hill Green
Farm, Woodford Road, Poynton, Cheshire, was affected by trunk road proposals
(the A555/A453 Poynton Bypass), and on 5 September 1997 the claimant served a
blight notice on the Highways Agency in relation to the whole of the site. The
notice was accepted on 23 October 1997, giving rise to a deemed compulsory
purchase of the land.
2.
On 5 September 2000 the claimant applied to the local planning
authority, Macclesfield Borough Council, for a certificate of appropriate
alternative development under section 17 of the Land Compensation Act 1961.
The land is in the North Cheshire Green Belt, and the application identified
uses of four parts of the land, parcels A, B, C and D, for which it claimed
permission would have been granted. This preliminary issue concerns parcel A.
3.
The southern edge of the site is located about 300 metres north west of the urban edge of Poynton. Hazel Grove is approximately 850 metres to the
north of the site, and Bramhall is a similar distance to the west. Parcel A is
0.37 hectares (0.91 acres) in area and has a frontage of approximately to Woodford Road. The front part of the site is about 25 metres wide and lies between a row of
14 houses on the north-east side and the buildings of Hill Green Farm to the
south-west. It contains a dilapidated barn structure and a yard. Behind the
front part of the site, which is about 60 metres deep, the land broadens out
behind the gardens of three of the houses in Woodford Road. On the north-west
side of Woodford Road, opposite the frontage of parcel A, there is a house, and
there is a row of 8 more houses on that side of the road slightly further to
the north-east. The last of theses houses adjoins a development of 30 houses
in a cul-de-sac called Lower Park Crescent. Within the settlement there is a
garage that provides car servicing, repairs, diagnostics and MOT testing. It
shares a site with a separate second hand car dealership. At Hill Green Farm some
of the former agricultural buildings have been converted to business uses. In
all the settlement comprises some 50 to 60 dwellings and businesses.
4.
On 14 December 2000 the council issued a certificate, certifying “that
in its opinion planning permission would have been granted” for the following:
“Parcel A
1.
Redevelopment for residential development comprising affordable housing
or agricultural workers dwellings subject to satisfying the criteria in
policies H7, DC22 and DC23 of the Macclesfield Borough Local Plan 1997.
2.
The conversion and use of existing buildings for B1 and/or B8 use
subject to satisfying the criteria in policies GC8 and DC3 of the Macclesfield
Borough Local Plan 1997.
Parcel A and B and/or A, B and C and/or A, B, C and D (in
combination)
1.
Conversion and use of the existing buildings (together with other land)
as an equestrian centre comprising stabling, livery, indoor/outdoor school,
ménage, paddocks, show jumping, dressage, polo and cross country course.
2.
Leisure (outdoor sport and recreation) including: country club house on site
of existing buildings and
(i)
Pitch and putt golf course;
(ii)
Golf driving range;
(iii)
Tennis courts;
(iv)
Bowling green;
(v)
Outdoor swimming pool;
(vi)
Fishing;
(vii)
Essential structures required for (i) to (vi).
Parcel B and C and/or B, C and D (in combination)
1.
Leisure (outdoor sport and recreation) including:
(i)
Pitch and putt golf course;
(ii)
Golf driving range;
(iii)
Tennis courts;
(iv)
Bowling green;
(v)
Outdoor swimming pool;
(vi)
Fishing;
(vii)
Essential structures required for (i) to (vi).
2.
Equestrian centre comprising stabling, livery, indoor/outdoor school,
ménage, paddocks, show jumping, dressage, polo and cross country
course/exercise course.
Parcel C and D (in combination) and/or D
3.
Leisure (outdoor sport and recreation) including:
(i)
Pitch and putt golf course;
(ii)
Golf driving range;
(iii)
Tennis courts;
(iv)
Bowling green;
(v)
Outdoor swimming pool;
(vi)
Fishing;
(vii)
Essential structures required for (i) to (vi).
Equestrian centre comprising
stabling, livery, indoor/outdoor school, ménage, paddocks, show jumping,
dressage, polo and cross country course/exercise course.”
5.
The certificate stated that such permission would have been subject to
some nine conditions, which were set out, and it concluded:
“In the opinion of the Local
Planning Authority, planning permission would not have been granted for any
development other than that specified in this Certificate.”
6.
Negotiations for compensation ensued following the acceptance of the
blight notice, and after a considerable time the present notice of reference
was made. The acquiring authority were unhappy about the terms of the section
17 certificate, although they had not appealed against it, and they applied to
the Tribunal under section 17(2) for leave to apply for a further certificate.
On 19 August 2010, following a hearing, I refused the application (see ACQ/262/2009,
[2010] UKUT 309 (LC)).
7.
In the course of their negotiations the parties had identified a
disagreement that they considered suitable for disposal as a preliminary issue.
It arises out of the terms in which the certificate expressed the permission
that would be granted in relation to parcel A for “Redevelopment for
residential development comprising affordable housing or agricultural workers
dwellings”, which was stated to be “subject to satisfying the criteria in
policies H7, DC22 and DC23 of the Macclesfield Local Plan 1997.” Policies DC22
and DC23 relate to agricultural dwellings. Policy H7 relates to affordable
housing in rural areas, and is in these terms:
“H7 Exceptionally, in rural areas planning permission may
be granted for affordable housing on land that would not normally be released
for development, provided that all of the following criteria are met:
1 The scheme
would meet a genuine local housing need that would not otherwise be met,
supported by a housing needs survey
2 The scheme is
undertaken by a registered social landlord
3 The
occupation of the dwellings shall be limited to those persons who meet the
objectives of a registered social landlord
4 The site is located in or adjoining an existing
village and is of a scale and character appropriate to the location.”
8.
The disagreement between the parties concerned the first part of
criterion 4, that the “site is located in or adjoining an existing village”.
The Local Plan defines “Village” as –
“A group of houses in a predominantly rural area with some
services such as a shop, post office or public house.”
The acquiring authority contended
that the group of houses in the vicinity of parcel A was not a village as so
defined, lacking as it does any services such as a shop, post office or public
house. So, they said, the site did not satisfy the first part of criterion 4,
and accordingly it was not to be assumed under the terms of the certificate that
planning permission would have been granted for affordable housing. The
claimant said that he was entitled to rely on an assumption that planning
permission would have been granted for such development, since the certificate
had been granted expressly in relation to the site. In view of this
disagreement I ordered that the following should be determined as a preliminary
issue:
“Whether, in giving effect to
section 14(1) of the Land Compensation Act 1961, it is to be assumed that the
development for which the section 17 certificate planning permission is assumed
to have been granted could not have been carried out unless the site was
located in or adjoining an existing village in terms of policy H7.”
9.
The relevant statutory provisions, in Parts II and III of the 1961 Act,
are as follows:
“14.- (1) For
the purpose of assessing compensation in respect of any compulsory acquisition,
such one or more of the assumptions mentioned in sections fifteen and sixteen
of this Act as are applicable to the relevant land or any part thereof shall
(subject to subsection (3A) of this section) be made in ascertaining the value
of the relevant interest…
(3A) In determining –
(a) for the
purpose referred to in subsection (1) of this section whether planning
permission for any development could in any particular circumstances reasonably
have been expected to be granted in respect of any land; or
(b)
whether any of the assumptions mentioned in section 16 of this Act (but
not section 15) are applicable to the relevant land or any part thereof,
regard shall be had to any contrary
opinion expressed in relation to that land in any certificate issued under Part
III of this Act.
15.- …
(5) Where a certificate is issued
under the provisions of Part III of this Act, it shall be assumed that any
planning permission which, according to the certificate, would have been
granted in respect of the relevant land or part thereof if it were not proposed
to be acquired by any authority possessing compulsory purchase powers would
be so granted, but, where any conditions are, in accordance with those
provisions, specified in the certificate, only subject to those conditions and,
if any future time is so specified, only at that time.
17. – (1) Where an interest in
land is proposed to be acquired by an authority possessing compulsory purchase
powers, either of the parties directly concerned may, subject to subsection (2)
of this section, apply to the local planning authority for a certificate under
this section…
(3) An application for a certificate under this
section –
(a) shall
state whether or not there are, in the applicant’s opinion, any classes of
development which, either immediately or at a future time, would be appropriate
for the land in question if it were not proposed to be acquired by any
authority possessing compulsory purchase powers and, if so, shall specify the
classes of development and the time at which they would be so appropriate;
(b) shall state the
applicant’s grounds for holding that opinion; and
(c) shall be
accompanied by a statement specifying the date on which a copy of the
application has been or will be served upon the other of those parties.
(4) Where an application is made to
the local planning authority for a certificate under this section in respect of
an interest in land, the local planning authority shall, not earlier than
twenty-one days after the date specified in the statement mentioned in
paragraph (c) of subsection (3) of this section, issue to the applicant a
certificate stating either of the following to be the opinion of the local
planning authority regarding the grant of planning permission in respect
of the land in question, if it were not proposed to be acquired by any
authority possessing compulsory purchase powers, that is to say -
(a) that
planning permission for development of one or more classes specified in the
certificate (whether specified in the application or not) would have been
granted, but would not have been granted for any other development; or
(b) that planning
permission would have been granted for any development for which the land is to
be acquired, but would not have been granted for any other development,
and for the purposes of this subsection
development is development for which the land is to be acquired if the land is
to be acquired for purposes which involve the carrying out of proposals of the
acquiring authority for that development.
(5) Where, in the opinion of the
local planning authority, planning permission would have been granted as
mentioned in paragraph (a) of subsection (4) of this section, but would only
have been granted subject to conditions, or at a future time, or both subject
to conditions and at a future time, the certificate shall specify those
conditions, or that future time, or both, as the case may be, in addition to
the other matters required to be contained in the certificate.”
10.
For the claimant Mr Robin Purchas QC submitted that the certificate was
a public document, to which effect should be given according to its terms.
There was, he said, no ambiguity that would justify reference to extraneous
material save so as to give context. In terms of its overall structure the
certificate described the relevant class of development and specified the
conditions subject to which planning permission would have been granted. No
conditions could be assumed other than those specified. The class of
development for which planning permission was to be assumed consisted of (a)
redevelopment (b) for residential purposes (c) comprising affordable housing
(d) subject to satisfying the criteria in policy H7. Applying those criteria,
the affordable housing would be such as to meet a relevant local need; the
redevelopment is to be undertaken by a registered social landlord; and the
occupation was to be by those who would meet the objectives of a registered
social landlord. No difficulty would arise, Mr Purchas said, in applying
criteria 1, 2 and 3 in this way. They formed part of the description of the
class of development for which planning permission was to be assumed. The second
part of criterion 4 (“The site…is of a scale and character appropriate to the
location”) could be given good and consistent sense if it was treated as
requiring that the development should be of a scale and character appropriate
to the location.
11.
The first part of criterion 4 (“The site is located in or adjoining an
existing village”), Mr Purchas said, was clear. It was not a description
of the class of development but of the site. It would be material to the
question whether planning permission would be granted. The certificate states
that planning permission would be granted for this site, and it would be
internally contradictory to contend that planning permission would not be
granted because the site is not within or adjoining an existing village. Full
meaning for the terms and context of the certificate could be achieved, Mr
Purchas said, by applying just those criteria of policy H7 that described the
class of development, that is to say, all the criteria with the exception of
the first part of criterion 4.
12.
Mr Purchas submitted in the alternative that the reference to the criteria
in policy H7 should be taken to be a statement of the conditions to which
planning permission for affordable housing would be subject. On this approach
the first part of criterion 4 would fall to be disregarded for the same reason
as it would fall to be disregarded if the criteria were treated as describing
the class of development.
13.
For the acquiring authority Mr James Maurici pointed out that the
primary way in which Mr Purchas put his case was not the way in which it had
been put in the claimant’s statement of case. There it was only the conditions
argument that was advanced. Mr Maurici submitted that the policy H7
criteria, including the first part of criterion 4, were either to be treated as
conditions to which the assumed planning permission would be subject, or
alternatively as a statement that permission would only be granted at a future
time, that is to say when each of the criteria in policy H7 was satisfied.
14.
Mr Maurici submitted that in interpreting the certificate regard should
be had to the terms of the council’s resolution to issue the certificate and to
the planning officer’s report recommending what the certificate should
contain. The planning officer’s report said this in relation to plot A:
“PLOT A:
This site lies within the North
Cheshire Green Belt as do all the plots. This site lies within a small frontage
of existing residential development along Woodford Road and is currently
occupied by agricultural structures. The application suggests residential, B1
Business and B8 Storage and Distribution would be appropriate on this site.
Development for open market housing would not accord with the advice in
Planning Policy Guidance Notes or policies in the Local Plan. Development for
affordable housing or agricultural worker’s dwellings would depend on
justification being made at the appropriate time. Conversion or use of the
existing buildings for B1 or B8 Use may be achievable but much would depend on
the site’s specific scheme as the application amounts to an Outline planning
proposal. Having regard to the proximity of this frontage site to adjacent properties
along Woodford Road, there may be some loss of residential amenity were
business uses to be permitted on the site. In the absence of any special
circumstances at this time, it is concluded that none of the uses sought for
residential or business use would be appropriate.”
15.
Having discussed the uses proposed for parcels B, C and D, the report
concluded as follows:
“3. It is concluded in respect of each of the proposals
that outdoor sport and recreation would be an appropriate use subject to scale,
impact and the type and amount of traffic to be generated, together with the
protection of residential amenities for those properties fronting onto Woodford
Road. However, residential uses, whether open market housing, single large
country houses, affordable housing or agricultural worker’s dwellings are
either not justifiable at the present time or would in any event be
inappropriate development. With regard to business use, it is not considered
that a business use on this site would be appropriate having regard both to the
content of planning policy for the Green Belt and also with regard to the
proximity to adjacent residential properties.
4. Accordingly it is recommended
that a Positive Certificate be granted for appropriate Green Belt uses but a
Negative Certificate for residential or commercial uses.”
16.
In the light of this report the planning committee resolved as follows:
“That the application be delegated
to the Chief Planning Officer in consultation with the Principal Solicitor, to
issue the Certificates in accordance with the recommendation and to incorporate
the views of the Joint Highways Manager.”
17.
At the hearing both parties advanced their cases on the basis that
effect had to be given to the planning permission that the certificate said would
be granted in relation to parcel A. I pointed out that the criteria in H7 were
criteria related to the question whether permission should be granted for
affordable housing, so that a statement that planning permission would be
granted for such development subject to the criteria in policy H7 appeared to mean
not that permission would be granted but that it might or might not be
granted. Following the hearing I suggested in a note to counsel that if the
certificate had stated expressly that permission might or might not have been
granted for agricultural dwellings or affordable housing, it would not have
been stating that permission would have been granted for such classes of
development; and therefore the statement itself would properly fall to be
treated as having no effect for the purposes of section 17. The same would
appear to be the case where, though not stated expressly, it was necessarily
implicit in the words used in the certificate that permission might or might
not have been granted. I invited further written submissions on this point.
18.
Mr Maurici in his further submissions drew attention to the acquiring authority’s
amended statement of case, in which three interpretative “scenarios” had been
advanced. The first of these was that this part of the certificate was
meaningless for the reason that it stated that permission would have been
granted subject to the satisfaction of criteria, some of which could not be
satisfied in this location. Mr Purchas reiterated his earlier submission that
effect ought to be given to the whole of the certificate and said that there
was no justification for construing the certificate in a way that necessarily
meant that the authority had failed to discharge its statutory function. He
submitted that it was not legitimate to have regard to extraneous material in
construing the certificate, but that if, contrary to this, reference was to be
made to the background, he placed reliance of the witness statement of Mr
Justin True, the claimant’s solicitor. This statement exhibited notes that had
been taken by counsel at the committee meeting and an exchange of
correspondence on the drafting of the certificate.
19.
The starting point, in my judgment, is this. The certificate must be
construed in relation to the terms of the statutory provisions. Under section
17(4), unless the authority consider that planning permission would only have
been granted for development for which the land is to be acquired (see section
17(4)(b)), they must issue a certificate stating that planning permission for
development one or more classes specified in the certificate would have been
granted, but would not have been granted for any other development (see section
17(4)(a)). If they consider that planning permission would only have been
granted subject to conditions, the certificate must specify those conditions
(section 17(5)); and, if they consider that planning permission would only have
been granted at a future time, the certificate must specify that future time
(ibid).
20.
In form the certificate that was issued accorded with section 17 in this
respect: it was expressed so as to state the classes of development for which
planning permission would have been granted; to specify the conditions to which
any such grant of permission would have been subject; and to state that
permission would not have been granted for development other than that
specified. The difficulty arises, however, because, whilst following a form
that accorded with section 17, the certificate contained a qualification in
relation to affordable housing and agricultural workers dwellings: “subject to
satisfying the criteria in policies H7, DC22 and DC23 of the Macclesfield Local
Plan 1997.”
21.
The principal function of the local plan policies is to identify the
development that may receive planning permission by specifying the criteria
that need to be satisfied before permission is granted. Thus policy H7 is
expressed in the terms, “Exceptionally, in rural areas planning permission may
be granted for affordable housing on land that would not normally be released
for development, provided that all of the following criteria are met;” and policy
DC22, dealing with permanent agricultural dwellings, states, “Planning
permission will be granted for proposals to create a permanent dwelling for a
full-time farm or forestry employee in the countryside only when all the
following criteria are met:…” To state, as the certificate did, that
permission would have been granted for residential development comprising
affordable housing or agricultural workers dwellings “subject to” those
policies is necessarily to imply that permission might or might not have been
granted for such development depending on whether or not the criteria were met.
But a statement that planning permission might or might not be granted does not
accord with section 17.
22.
The arguments advanced by the parties at the hearing sought to bring
what is stated in this way in the certificate within the scope of section 17 in
three alternative ways. First there was Mr Purchas’s contention that the
criteria in H7 (with the exception of the first part of criterion 4) should be
read as defining the class of development for which planning permission would
have been granted. The class of development would thus be: “Development for
affordable housing in a scheme (a) that would meet a genuine local housing need
that would not otherwise be met; (b) that is supported by a housing needs
survey; (c) that is undertaken by a registered social landlord; (d) in which
occupation of the dwellings is limited to those persons who meet the objectives
of a registered social landlord; and (e) is of a scale and character
appropriate to the location.” Stated in that way this is not, in my judgment,
a class of development as that term is used in section 17 or has been used in
the planning legislation from before 1961 (for example in connection with
development orders and use classes orders), that is to say a category of
development described by reference to generalised features. Mr Purchas said
that it was similar to the descriptions considered in Wilson v West Sussex
County Council [1963] 2 QB 764 (“an agricultural cottage”), Trinder v
Sevenoaks Rural District Council (1967) 204 EG 803 (“detached bungalow or
house for occupation by an agricultural worker”) and East Suffolk County
Council v Secretary of State for the Environment (1972) 70 LGR 595
(“erection of a farm worker’s dwelling”). However, a comparison of those
descriptions with the one above shows that there is no similarity. It is
simply not realistic, in my view, to attempt to translate the H7 criteria,
which prescribe requirements that must be satisfied before permission is
granted, into a description of the features of a class of development.
23.
The second way in which it was sought to bring the words of the certificate
within section 17 was to say that the criteria in policy H7 (and, no doubt, the
same would have to go for policies DC22 and DC23, the agricultural dwelling
policies) were to be treated as conditions subject to which planning permission
would be granted. There are, however, two reasons why this cannot be the
correct approach. The first is that the certificate states expressly the nine
conditions to which planning permission for the classes of development would be
subject. The fact that the criteria are not included shows, in my view, that
they were not considered to be conditions. Secondly, conditions imposed so as
to give effect to the terms in which the criteria are stated, with the
exception of a condition relating to criterion 3 (limitation on occupation), would
not comply with the advice in Circular 11/95 or be valid in law. A condition,
for instance, that the development must “meet a genuine local housing need that
would not otherwise be met” is so imprecise as to be incapable of enforcement,
and in any event there is nothing to establish whether it would operate as a
restriction on the commencement of development or on the occupation of the
dwellings.
24.
Thirdly, there was Mr Maurici’s contention that if the first part of
criterion 4 is not to be construed as a condition it should be construed as a
specification of a future time at which planning permission would have been
granted, that is to say the time when the site satisfies the requirement for
location in or adjoining an existing village (by, presumably, the establishment
of a nearby shop or a post office or a public house or some other services such
as those). I cannot accept this way of putting it. While the certificate
follows a structure that was evidently intended to comply with section 17(4)
and (5), stating the classes of development for which planning permission would
have been granted and specifying the conditions to which planning permission
would have been subject, it does not purport to specify any time for the future
grant of planning permission. Moreover it does not seem to me that an event as
nebulous as the time at which all the criteria in policy H7 are met (and it
would have to be this, not simply the time, if any when the settlement might
satisfy the definition of a village in the local plan) could possibly
constitute the specification of a time for the purposes of section 17(5).
25.
In any event I do not accept the basic thesis of Mr Purchas’s argument that
for the purpose of construing the certificate there is a difference in
principle between the first part of criterion 4 and the other criteria in
policy H7. I can see nothing that would compel the assumption that the
requirement that the site must be in a village must be taken either to have
been satisfied at the relevant date or to be ignored or treated as overridden.
The site clearly had the potential to satisfy the requirement, contained as it
is within a settlement of 50 to 60 dwellings and businesses. If nevertheless
it did not satisfy the requirement at the relevant date for the reason that the
settlement lacked any material services, it might nevertheless satisfy that
requirement at some future time if such services came to be provided – just as
(looking a criterion 1) there might have been no “genuine local housing need”
at the relevant date but such need might arise in future. I do not accept
therefore that what was said in the certificate implied that the first part of
criterion 4 was satisfied or should be treated as satisfied.
26.
The efforts made by the parties to bring within section 17 what is
stated in the certificate in relation to parcel A derives from an approach that
requires that effect for the purposes of section 17 must be given to all that
the certificate contains. I fully accept that in principle the approach should
be to seek to give effect to the totality of the document. But the certificate
must be construed in the light of the statutory provisions that give rise to it.
As I have said, the clear implication of saying that permission would have been
granted “subject to” criteria in the local plan that have the function of
determining whether or not permission should be granted is that permission
might or might not have been granted, depending on whether the criteria were
satisfied; and, if the certificate had stated expressly that permission might
or might not have been granted for agricultural dwellings or affordable
housing, the inescapable conclusion would be that it was not stating that
permission would have been granted for such classes of development; and
therefore the statement itself would properly fall to be treated as having no
effect for the purposes of section 17. This would cause no difficulty at all
for the operation of the rest of the certificate. Unlike a compulsory purchase
order or a planning permission a section 17 certificate only requires to be
interpreted for the purposes of determining the compensation payable to the
claimant by the acquiring authority. Here the certificate did not say
expressly that permission might or might not have been granted for these
classes of development, but this was necessarily implicit in what it did say. Accordingly
on a proper construction of the certificate, in my judgment, it does not state
that planning permission would have been granted for those classes of
development in the unqualified way that section 17 requires.
27.
I have reached this conclusion simply on the basis of the words in the
certificate and the provisions of the Local Plan to which it refers. I do not
think that there is any need to refer to extraneous material. If, however,
there were doubt as to the meaning of the certificate it would undoubtedly be
appropriate to have regard to the resolution of the council pursuant to which
it was prepared and the report of the planning officer on which the resolution
was based. The function of the certificate is to provide an input into the
assessment of compensation for the deemed compulsory purchase, a matter that
concerns only the claimant and the acquiring authority. Both are well aware of
these documents. The recommendation, which the council adopted, was that a
positive certificate should be granted for Green Belt uses and that a negative
certificate should be granted for residential and commercial development. Moreover
the report, in saying that “development for affordable housing or agricultural
worker’s dwellings would depend on justification being made at the appropriate
time”, makes clear the officer’s view that permission for this might or might
not be granted, and his recommendation was founded upon this. To treat what
the certificate said in relation to agricultural dwellings and affordable
housing as not stating that planning permission would be granted for those uses
would therefore accord with the terms of the council’s resolution and the
officer’s report. There is nothing in the witness statement of Mr True
and the correspondence to which he refers that suggests to me that the view of
the council was other than the one that appears from the officer’s report.
28.
The result, therefore, is that under section 15(5) the development for
which it is to be assumed that planning permission would have been granted does
not in my judgment include residential uses. This is a conclusion that effectively
subsumes the preliminary issue and makes a specific answer to it unnecessary,
although, as I have said, the ineffective part of the certificate was not
intended to suggest, and did not, that the site should be taken to satisfy the
requirement in policy H7 that it must be located in or adjoining a village as
defined. It is not the effect of the Act, however, that the negative part of
the certificate requires it to be assumed that the hope that permission might
be granted for such uses is to be ignored. There is no provision to this
effect, and section 14(3) provides:
“Nothing in [sections 15 and 16] shall be construed as
requiring it to be assumed that planning permission would necessarily be
refused for any development which is not development for which, in accordance
with those provisions, the granting of planning permission is to be assumed.”
Thus the possibility of permission that the planning officer
envisaged in his report and which was reflected in the ineffective part of the
certificate can be brought into the reckoning if it gives rise to hope value.
29.
I would add that sort of the problems that have arisen with the section
17 certificate in this case are unlikely to arise in future when Part 9 of the
Localism Act 2011 is brought into force. Section 234 of the Act, besides
substituting new sections 14 and 15 for sections 14 to 16 of the 1961 Act,
substitutes also a new section 17 and a new section 18, which provides a right
of appeal to the Upper Tribunal against a section 17 certificate. Thus in such
a case as this it will be open to each party to appeal against the certificate,
and it will be for the Tribunal to determine on the evidence what development,
if any, is appropriate alternative development for the purposes of section 14 –
that is to say, development for which at the valuation date planning permission
could reasonably have been expected to be granted on the valuation date on the
assumptions set out in subsection (5) (see subsection (4)). And, whether a
section 17 certificate has been sought or not, under section 14(3) compensation
will fall to assessed on the assumption that planning permission would have
been granted for appropriate alternative development.
30.
The parties are now invited to make submissions on costs, and a letter
relating to this accompanies this decision, which will become final when the
question of costs has been determined. There have been previous indications
that the parties would wish mediation to take place following the determination
of the preliminary issue. If it is confirmed that they are still agreed about
this I will order the proceedings to be stayed for a suitable period to allow
mediation to take place.
Dated
23 November 2011
George
Bartlett QC, President
