EWLands ACQ_96_2001 (23 February 2004)
LANDS TRIBUNAL ACT 1949
COMPENSATION – purchase notice – undeveloped land – planning permission – whether effect to be given to a certificate of appropriate alternative development issued in 1987 – likelihood of grant of planning permission – hope value – compensation £27,000 – Land Compensation Act 1961, ss 14(1)(3), 15(5), 17(1)(4) and 22(1)
IN THE MATTER OF A NOTICE OF REFERENCE
BATH AND NORTH EAST
SOMERSET DISTRICT COUNCIL
land at Hampton Row and
Before: P H Clarke FRICS
Sitting at 48/49 Chancery Lane, London WC2A 1JR
on 28 January 2004
The following cases are referred to in this decision:
W & S (Long Eaton) Ltd v Derbyshire County Council (1975) 31 P& CR 99
Porter v Secretary of State for Transport  3 All ER 693
Williamson and Stevens v Cambridgeshire County Council (1977) 34 P & CR 117
Grampian Regional Council v Secretary of State for Scotland  1 WLR 1340
Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment, Transport and the Regions  QB 1144 CA
Mrs Stevens with leave of the Tribunal for the claimant
Mr William Webster instructed by Principal Solicitor, Bath and North East Somerset District Council, for the acquiring authority
DECISION OF THE LANDS TRIBUNAL
"Land Compensation Act 1961
Proposed Residential Development at Hampton Row
Referring to our previous correspondence I confirm that the Planning Control Committee at its meeting on 15 July decided that a Certificate be issued to the effect that, in the event of a planning application being submitted for residential development of this property, permission would be granted subject to:
1. the submission to, and approval by, the Council before any work is commenced on the site of detailed drawings and particulars showing (a) the siting, levels, design and external appearance of the proposed building, the means of access thereto and the landscaping of the site; and (b) the provision to be made for the garaging or parking of cars within the curtilage of the property;
2. the submission to, and approval by, the Director of Environmental Services before any work is commenced on site of a landscaping scheme showing the number, species and position of trees and shrubs to be planted, and the surface treatment of the open parts of the site, such landscaping to be carried out within 12 months of the development being commenced, and subject further to any of such trees or shrubs which is removed, dies or becomes diseased within a period of 5 years from the first tree or shrub being planted be replaced by a new tree or shrub of the same species;
3. the discharge of all surface water being to the surface water sewer in Rockliffe Avenue;
4. a footway being constructed along the whole of the site frontage and the adjoining carriageway being widened to 5.5 metres;
5. a turning space for vehicles being formed near the northern end of the site."
The parties agree that this is a certificate of appropriate alternative development under section 17 of the 1961 Act. They do not agree its effect.
"It is important to emphasise that the argument in this case was not whether the Lands Tribunal could reopen the questions of whether planning permission would have been granted for the land being acquired for the road. This issue had been the subject of a section 17 certificate and this meant that the Lands Tribunal, in valuing the land, had to assume that planning permission would be granted for its residential development. So in this sense, the statutory scheme provided its own finality or issue estoppel, for the acquired land. The difficult question was whether the section 17 certificate also determined indirectly the planning assumption to be made as to the fate of the retained land."
I do not find therefore that the decision in Porter is directly in point. In this reference I am solely concerned with the value of land acquired, not the land retained. I have been unable to find any authority on this particular issue. My decision must therefore rest on the construction of section 15(5) of the 1961 Act and related provisions.
"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."
Part III of the Act (sections 17-22) contains provisions for certification by planning authorities of appropriate alternative development, including section 17 (applications for, and the issue of, certificates) and section 22 (interpretation), to which I shall refer. There is no time condition on the 1987 certificate and, at first glance, the mandatory tone of section 15(5) appears to support the claimant's contention that effect must still be given to the certificate when valuing the reference land. I do not accept this contention. In my judgment, the mandatory wording of section 15(5) applies only to a certificate issued for the particular acquisition for which compensation is being assessed. I do not believe that the effect of this subsection is that a section 17 certificate, once issued and although without a time condition, is automatically to have effect for all time and in all circumstances, however much change has occurred since it was issued. My reasons for this conclusion are as follows.
"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."
An application for a certificate may be made by "either of the parties directly concerned", which under section 22(1) "means the person entitled to the interest and the authority by whom it is proposed to be acquired." Thus, the application and the certificate relate to a particular acquisition and particular parties to that acquisition. In my judgment this points to an interpretation of section 15(5) which relates it to the acquisition for which the certificate was granted and not to any other acquisition of the same land.
"It will be convenient to refer to the certificates contemplated by subsection (4)(a) and (b) as positive and negative certificates respectively. A decision by a planning authority, or by the Secretary of State on appeal, whether a positive or a negative certificate is appropriate, must proceed on the hypothesis predicated by subsection (3) and determine what planning permission, if any, would have been granted if the land were not proposed to be acquired by any authority possessing compulsory purchase powers. The sole purpose of the certification procedure is to provide a basis for determining the development value, if any, to be taken into account in assessing the compensation payable on compulsory acquisition. If a positive certificate is issued, it is to be assumed that the certified permission would be granted, subject to such conditions and at such future time, if any, as may be specified in the certificate: ….. If a negative certificate is issued, 'regard is to be had' to the negative opinion certified: ….."
"Amenity open space associated with housing estates, and private open spaces as identified on the Proposals Map and Appendix F, will normally be safeguarded from development."
The reference land is subject to this policy. Other policies of relevance are C1 (the World Heritage Status of Bath is a key material consideration), C3 (special attention to be paid to preserving or enhancing the Conservation Area), C4 (development in the Conservation Area is to preserve or enhance the character of the area), C19 (planning permission not to be granted for development which adversely affects listed buildings), H13 (residential development normally permitted provided specified conditions satisfied), H15 (planning permission not to be to be granted for development significantly reducing the amenity of existing residential accommodation) and T25 (highway control criteria for new development).
"Development which harms the openness and character of Visually Important Open Spaces, including those shown on the Proposals Map, will not be permitted."
Mr Stevens has objected to this designation.
"8.33 Although I find the maintenance requirement for the land very persuasive, the objections to the residential scheme on highway and Conservation Area grounds are too powerful to be overridden in my view. Moreover, on the basis of the submissions made to me, and given the awkwardness of the land, I am not satisfied that any appropriate residential, or other, scheme of development could be devised for the land except for low key community uses. As I have concluded above, community uses would result in a net liability to an owner and provide no incentive to care for the land. Accordingly, I do not propose to recommend that, in lieu of confirmation, a direction be made regarding planning permission for any form of development should it be applied for."
DATED 23 February 2004
(Signed) P H Clarke
DATED 22 March 2004
(Signed) P H Clarke