England and Wales Lands Tribunal

[2003] EWLands BNO_129_2002 (24 January 2003)

BNO/129/2002

LANDS TRIBUNAL ACT 1949

BLIGHT NOTICE – house in vicinity of area identified in Government consultation document as option for airport expansion – whether blighted land – Town and Country Planning Act 1990 Schedule 13 para 1 – counter-notice of respondent upheld

IN THE MATTER of a NOTICE OF REFERENCE

BETWEEN BRONWEN MARY HALLIDAY Claimant

and

SECRETARY OF STATE FOR TRANSPORT Respondent

Re: The Old Stables

Easton Lodge

Little Easton

Dunmow

Essex

Before: The President

Sitting at 48/49 Chancery Lane, London WC2A 1JR

on Tuesday 21 January 2003

Mr Mark Halliday for the claimant, with leave of the Tribunal

Kate Selway instructed by Treasury Solicitor for the respondent

The following cases are referred to in this decision:

R (Medway District Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin)

Charman v Dorset County Council (1986) 52 P & CR 88

The following further cases were referred to in argument:

Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808

R (Bibi) v London Borough of Newham [2001] EWCA Civ 607

Assoicated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223

Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374

Jones v Greater Manchester Passenger Transport Executive (1997) (LT ref: BNO/206/1995)

Iatridis v Greece [2000] 30 EHRR 97

R v Secretary of State for Transport, ex p London Borough of Richmond upon Thames [1995] Env LR 409


 


DECISION

1. This is a reference under section 153 of the Town and Country Planning Act 1990 of an objection contained in a counter-notice served by the respondent to a blight notice served by the claimant. The blight notice was dated 29 July 2002 and related to a hereditament called the Old Stables, Easton Lodge, Little Easton, Dunmow, Essex. The claimant is the resident owner of the hereditament. The notice asserted that the property was blighted land within paragraph 1(b) of Schedule 13 of the Act. The counter-notice served on behalf of the respondent and dated 23 September 2002 objected to the blight notice under section 151(4)(a) on the ground that no part of the hereditament was comprised in blighted land. Thus the issue, and the only-issue, to be determined is whether the claimant's house is indeed blighted land.
2. Schedule 13 to the Act defines what land is blighted land for the purposes of the operation of the blight notice provisions contained in Chapter II of Part IV of the Act. The claimant relies on the first category in Schedule 13 – land allocated for public authority functions in development plans etc. Paragraph 1 provides:

"1. Land indicated in a structure plan in force for the district in which it is situated either –

(a) as land which may be required for the purposes –

(i) of the functions of a government department, local authority, National Park authority, or statutory undertakers, or

(ii) of the establishment or running by a public telecommunications operator of a telecommunication system, or

(b) as land which may be included in an action area."

It is on paragraph 1(b) that Mr Halliday relies. Note (1) to paragraph 1 states:

"(1) In this paragraph the reference to a structure plan in force includes a reference to –

(a) proposals for the alteration or replacement of a structure plan which have been made available for inspection under section 33(2);

(b) any proposed modifications to those proposals which have been published in accordance with regulations under section 53."

3. Mr Halliday says that Easton Lodge, a substantial house at the centre of a country estate, lies, with its associated buildings, 3½ miles from Great Dunmow, 6 miles from Stansted Airport terminal in the district of Uttlesford in Essex. (I note from the plan that it is about 1½ miles east of current airport boundary.) In 1995 a property developer began redevelopment of the disused stables at Easton Lodge. The first property to be completed was the Old Stables, and three other properties were subsequently completed. Mr Halliday says that the Old Stables is a three bedroom detached house located in the former stable yard of Easton Lodge. It sits on a plot of approximately 0.24 acre. It is of brick and block construction with the bulk of the accommodation on the ground floor. The accommodation consists of an entrance hall, WC, two reception rooms, kitchen, family bathroom, inner hall, master bedroom and third bedroom on the ground floor. Upstairs is a galleried landing and second bedroom. The property is served by mains water through a shared private water pipe. Mains electricity is supplied by an overhead line provided by 24 Seven plc. Both of these services approach the property from the west over land forming part of the Easton Lodge Estate. Access to the property is by a means of a right of way which allows use of an access road. The freeholder contributes to the cost of maintaining this road. The claimant bought the property on 10 October 2001.
4. Mr Halliday says that on 27 June 2002 his wife instructed FPDSavills to sell the house. At the agents' recommendation it was placed on the market at £485,000. On 23 July 2002 the respondent published a consultation document "The Future Development of Air Transport in the United Kingdom", which included three options for the expansion of Stansted Airport. Mr Halliday says that the publication of those options has caused considerable generalised blight in the area surrounding the airport. As a result, he says, FPDSavills advised the claimant to drop the asking price for the Old Stables to £385,000. It was this that prompted the service of the blight notice.
5. Mr Halliday says that the property falls within paragraph 1(b) of Schedule 13 because it is land indicated in a structure plan in force for the district in which it is situated as land which may be included in an action area. He draws attention to the word "may". He refers also to section 36(7) of the Act, which provides:

"(7) A local plan may designate any part of the authority's area as an action area, that is to say, an area which they have selected for the commencement during a prescribed period of comprehensive treatment by development, redevelopment or improvement (or partly by one and partly by another method)."

The effect of these provisions with the two appearances of the word "may", Mr Halliday says, is that if I were to conclude that there is a possibility, however, remote, of the hereditament being included in an action area, I must find that the objection is not well-founded.

6. The consultation document, having considered the forecast growth in demand for air travel up to 2030 and having described the benefits of providing new runway capacity in the south-east, identifies a range of options for such new capacity. Those options include a further runway at Heathrow; one, two or three new runways at Stansted; a new southern runway and a realigned runway at Luton; and a new airport at Cliffe. All the options had been appraised in a study (called the "SERAS study") that the Government had commissioned in 1999. The SERAS study had also appraised options for one or two additional runways at Gatwick, but they did not feature as options in the consultation document because, the Government said, it did not intend to overturn the 1979 agreement between British Airports Authority and West Sussex County Council preventing construction of another runway at Gatwick. On 26 November 2002, however, in judicial review proceedings, R (Medway District Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin), Maurice Kay J decided that the decision to exclude the Gatwick option should be quashed. As a result, I was told by Ms Kate Selway for the Secretary of State, the Government now proposed to provide an additional consultation document, which would include Gatwick, in February 2003, after which there would be a 4-month consultation period. It was expected that a White Paper setting out the Government's policy would be published in the autumn.
7. Under the Stansted options the area of the airport would increase from 9.5 km² to 15.4km² (one runway) or 19km² (two runways) or 22 km² (three runways). Under the one-runway option the boundary of the airport would be about ½ mile away from Easton Lodge (as compared with 1½ miles now). Under the three-runway option the boundary would be ¼ mile away. All three options would bring Easton Lodge within the 57 dBA (Leq, 16-hour) noise contour at the dates considered in the document. An additional 3,000 people (in 2015 with one new runway) or 22,000 people (in 2030 with three new runways) would be brought within the 57 dBA contour. Just over 100 residential properties would need to be physically taken for the one-runway option and 200 for the three-runway option. An additional 18,000 houses would be needed by 2015 with the one-runway option.
8. Mr Halliday contends that the three Stansted options amount to "proposed modifications" within the meaning of Note (1)(b) to paragraph 1(b) of Schedule 13 and that as a result the house falls within the definition of blighted land. The structure plan for the purpose of the statutory provisions is the Essex and Southend-on-Sea Replacement Structure Plan 1996-2011 which, he points out, contains a specific policy affecting airport expansion. This policy, BIW9, provides:

"Proposals for new development relating to any existing operational airport or airfield, or proposals to establish a new flying site, will be considered having regard to the need for an appropriate hierarchy of aerodrome and aviation sites and determined in relation to the following criteria:-

1. General planning policies for the area;

2. Air travel needs of residents, business and air sports users;

3. Economic benefits to local and regional businesses;

4. Impact upon public health and safety, noise pollution levels, environmental conditions, visual amenity, and residential and urban areas affected by the proposal;

5. Requirement for new housing, commercial development, and associated community facilities arising from the proposals;

6. Demand for the establishment of airport related facilities outside the airport site itself, to serve both it and its users;

7. Adequacy of the arrangements for surface access to the site by all means of transport."

9. Mr Halliday says that, having regard to criteria 5, 6 and 7, the local planning authority may conclude that the proposals are best developed by means of an action area, and nothing in the policy rules out the possibility of developing the proposals as an action area. However, he points out that the area to the east of the current airport boundary, including therefore the subject hereditament, is shown as being within a rural area outside the Green Belt. Policy C5 restricts new uses in such an area to those appropriate to a rural area, and this is clearly incompatible with the development of a major airport. So, he says, some part of the policy must be modified if the airport is to be developed in accordance with the options. Modification of the Uttlesford District Local Plan, which sets out the limits of the airport, would also be needed, and this could be achieved by defining the area of the proposals as an action area. The proposals in the consultation document include a link road to the A120 to the west of Great Dunmow, and the whole of the area lying between the line shown for this road and the land shown for airport expansion to the west could, says Mr Halliday, be included in an action area. The subject hereditament lies within that area.
10. Mr Halliday goes on to say that the airport proposals could properly be reflected by an action area designation since the consultation document envisages that they would be carried out within 10 years (the prescribed period for action areas in the Town and Country Planning (Development Plan) (England) Regulations 1999) and that the scale and range of the proposals would require comprehensive treatment by development, redevelopment and improvement. So, he says, the change to the structure and local plans that the proposals would require could possibly be effected by designating an area, which could include the subject hereditament, as an action area. The modification to achieve this would be in accordance with regulations under Part II of the Act. Thus paragraph 1(b) is satisfied, and the hereditament is blighted land. Such a conclusion, Mr Halliday says, would be in line with the Tribunal's decision in Charman v Dorset County Council (1986) 52 P & CR 88, in which three circumstances were held sufficient to render a blight notice valid – that the authority had consistently supported the proposal, that the authority was the "appropriate authority" for the purpose of the provisions, and that compulsory purchase powers would be needed to put the proposal into effect.
11. I cannot accept that the contentions of Mr Halliday that I have set out establish that the hereditament is blighted land within the plain meaning of paragraph 1 of Schedule 13. It is not land "indicated in a structure plan in force for the district in which it is situated … as land which may be included within an action area." In the structure plan in force for the district of Uttlesford, the Essex and Southend-on-Sea Replacement Plan, the hereditament is shown as lying within a rural area not in the Green Belt. There is no indication that it is land that may be included in an action area. For completeness it should be said that the same goes for the Uttlesford Local Plan, which was adopted in April 1995, and the Replacement Local Plan, which is currently at the revised draft deposit stage. No action area including the subject hereditament is shown in either of these.
12. Mr Halliday places reliance on Note (1) to paragraph 1, which extends the meaning of "a structure plan in force". It extends it to "(a) proposals for the alteration or replacement of a structure plan which have been made available for inspection under section 33(2)" and "(b) any proposed modifications to those proposals which have been published in accordance with regulations under section 53." However, there is nothing before me to suggest that there are any proposals for the alteration of the structure plan that have been prepared by Essex County Council and made available for inspection under section 33(2) and which indicate that the hereditament may be included in an action area; nor that there are any proposed modifications to any such proposals that have been published and give such an indication. It is on the modifications part of the extended meaning (paragraph (b)) that Mr Halliday places reliance. But the possibility that the Government might adopt one of the Stansted options as a policy proposal and that the structure plan might be altered accordingly (or that the proposal might be reflected in a modification to proposed alterations) is insufficient to bring the hereditament within the blight provisions. The position would be no different if it were to be assumed (as Mr Halliday does assume) that it is certain that the Government will adopt as policy the three-runway option. The fact is that there is nothing in the structure plan itself, in any proposals for its alteration or replacement or in any proposed modifications to those proposals that indicate that the house may be required for the purposes of the Government or a relevant airport operator or may be included within an action area. Charman v Dorset County Council does not assist the claimant. In that case it was agreed that the land fell within one of the categories to which the relevant blight provisions applied, in that it was allocated for the purposes of the authority by the local plan. What was in issue was the question whether the authority intended to acquire the land.
13. Mr Halliday goes on to advance further submissions. He says that a substantial part of the Easton Lodge estate would have to be acquired for the expansion proposals, including land across which the electricity line and water pipe serving the house now run. Losing its electricity and water supplies, the house would become uninhabitable; and, if the acquiring authority were required by the owner of the estate to purchase the estate in its entirety, the house would lose its access as well. Next Mr Halliday says that the respondent has acted unlawfully in a number of respects. He says that the consultation process has been found in the judicial review proceedings to be irrational and procedurally unfair by excluding Gatwuck from the process, with the result that the White Paper containing the Government's air transport policy will be delayed and the claimant's house will remain blighted for at least 18 months. He further contends that a combination of factors has given rise to a legitimate expectation that property owners affected by the announcement of possible major infrastructure proposals will receive redress in a timely manner. On this he refers to the report of the Parliamentary Commissioner for Administration published on 8 February 1995, which examined the various compensation schemes implemented in connection with the Channel Tunnel Rail Link, the delay in establishing the choice of options on airport policy, and the extent of the Secretary of State's discretion to make compensation payments. Mr Halliday goes on to argue that the Secretary of State's refusal to consider compensation before the adoption of one or more of the options as Government policy is Wednesbury unreasonable. He further contends that the SERAS report showed the house as lying within an area that would be subject to Nitrogen Dioxide levels in excess of the acceptable exposure under European Directive 99/30/EC on Emissions so that, as a result, it might need to be compulsorily acquired.
14. None of these contentions, even if well-founded, would have any bearing on the issue that I have to decide in the absence of a further argument that Mr Halliday advances. This is that the blighting of Mrs Halliday's house by the indications given in the consultation document constitutes a breach of her rights under the European Convention on Human Rights. Mr Halliday says that the proposed airport expansion is the first major infrastructure project to be undertaken since the Human Rights Act 1998 became law. He makes reference to Article 1 of the First Protocol, which protects the right to property and provides:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

15. Mr Halliday also relies on Article 8, the right to respect for private and family life, home and correspondence. This provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

16. Mr Halliday says that the effect of the consultation document, blighting the house at least until the announcement of Government policy in the autumn of this year, and disabling the claimant from selling it other than at a value substantially less than its unblighted value, is an interference with her right to property and her right to respect for her home. Moreover, he says, the respondent cannot rely on any margin of appreciation. His actions amount to an arbitrary interference because they are unlawful for the reasons he advances and because they are contrary to an unequivocal declaration of intent that the Government gave in granting permission in 1985 for Stansted expansion. In the White Paper (Cmnd 9542) published in that year, following the receipt of the inspector's report on the inquiry held into the expansion proposals, this was said:

"5.36 The inspector also recommended as a condition for the grant of planning permission that the Government should make an unequivocal declaration of intent that a second main runway would not be constructed. On current demand forecasts, it is very doubtful whether such a runway would be justified in the foreseeable future, while it is clear that it would give rise to severe environmental pressure. The Government therefore unreservedly accepts the Inspector's recommendation in this respect.

17. 37 In the light of these decisions, the Government accepts that the area proposed for safeguarding against incompatible development, to accommodate a possible second runway, is unnecessarily large and will invite the BAA to identify a smaller area which might be required for construction of a second terminal if this proved to be justified at some time in the future. Since much of the land around Stansted already acquired by the BAA will then no longer fall within the boundaries of any future airport development, the Secretary of State for Transport will expect the BAA to take early steps for its disposal."
18. The relevance of Mr Halliday's human rights argument is that, if I were to conclude that the claimant's human rights would be breached unless she was able to serve a blight notice, I would be required under section 3 of the 1998 Act to read and give effect to the blight provisions of the 1990 Act, to the extent that it is possible to do so, so as to enable her to take advantage of them. Ms Selway submitted that it would not be right for me to consider whether there would be a breach of human rights and then to see whether the statute could be so construed as to provide a remedy, but in my view this is indeed what I am required to do. What I cannot do is to make any declaration of incompatibility under section 4. That would be a matter for the High Court.
19. Although I do not discount the possibility that there may be circumstances in which a person whose property is blighted by development proposals may find protection in the convention rights, it is clear to me that the claimant's circumstances fall far short of any that might engage such rights. The consultation document identifies options for airport development. They are not proposals. They will remain as options only for a limited period of time while the consultation process is carried out. The claimant's house is not shown as being within the boundary of the most extensive option, and is thus not one of the 200 houses that the document says "would need to be physically taken" if the three-runway option were to be implemented. There is nothing in my view to suggest that it might be acquired; and it is, I think, inconceivable that if it were not to be acquired it would be deprived of electricity or water supplies or access. The mere fact that the value of the house may have been reduced in value as a result of the consultation document – and possibly only for a limited period – is in my judgment insufficient to engage Article 1 of the First Protocol or Article 8.
20. In any event, even if the claimant's human rights were engaged in the way that is claimed, it is in my view quite impossible to read the blight provisions of the 1990 Act as extending to blight caused by a central Government consultation document. The definitions of blighted land in Schedule 13 are specific, and neither the paragraph on which Mr Halliday relies nor any of the other paragraphs is capable of being read so as to extend to land in the position of the subject hereditament – that is to say, land which lies in the vicinity of but outside an area identified as an option for development in a consultation document.
21. The claimant has failed to show that the respondent's objection to the blight notice is not well-founded, and the objection must therefore be upheld. Since the reference was conducted under the simplified procedure, and both parties accept that no order for costs should be made, I make no order for costs.

Dated 24 January 2003

George Bartlett QC, President