UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2010] UKUT 309 (LC)

LT Case Number: ACQ/262/2010

 

 

                            TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

COMPENSATION – compulsory – purchase – interlocutory application – leave sought to apply for section 17 certificate – refused – Land Compensation Act ss 14(3A), 15(5) and 17

 

 

                                 IN THE MATTER OF A NOTICE OF REFERENCE

 

 

BETWEEN                                      MICHAEL KINGSLEY                                    Appellant

 

                                                                           and

 

 

                                                      THE HIGHWAYS AGENCY                               Acquiring

                                                                                                                                     Authority

 

 

                                                             Re: Hill Green Farm,

                                                                     Woodford Road,

                                                                     Poynton.

                                                                     Cheshire

 

 

                                                           Before: The President

 

 

                                  Sitting at 43-45 Bedford Square, London WC1B 3AS

                                                               on 16 August 2010

 

 

 

James Neill instructed by Dechert LLP for the claimant

David Blundell instructed by Treasury Solicitor for the acquiring authority

 

The following cases are referred to in this decision:

 

Pentrehobyn Trustees v Secretary of State for Wales [2003] RVR 140

Transport for London v Spirerose Ltd [2009] 1 WLR 1797

Hoveringham Gravels Ltd v Chiltern District Council (1975) 31 P & CR 466);(1977) 35 P & CR 295

Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527

 

The following further cases were referred to in argument:

 

Porter v Secretary of State for Transport [1996] 3 All ER 693

Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295

R v Restormel Borough Council ex p Corbett [2001] 1 PLR 108

In re Indian Zoedone Co (1884) 26 Ch D 70

In re Fireproof Doors Ltd [1916] 2 Ch 142

In re North Hallenbeagle Mining Co (1867) LR 2 Ch 321

Greenweb Ltd v Wandsworth LBC [2009] RVR 294

Pearce and Thorpe v Aughton Parish Council (1973) 26 P & CR 357

Bromilow v Greater Manchester Council (1974) 31 P & CR 398

Sutton v Secretary of State for the Environment (1985) 50 P & CR 147

 

 

                              DECISION ON AN INTERLOCUTORY APPLICATION

Introduction

1.           The acquiring authority have applied under section 17(2) of the Land Compensation Act 1961 for leave to apply to the local planning authority for a certificate of appropriate alternative development under that section.  Having heard counsel for both parties I said that I would refuse leave.  These are my reasons for doing so.

2.           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 32 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.  Negotiations on compensation ensued between the claimant and the District Valuer, who had been instructed on the HA’s behalf.

3.           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.  On 14 December 2000 the council issued a certificate indicating that planning permission (subject to nine conditions that were set out) 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.”

4.           Although the certificate was issued on 14 December 2000 and the council say that they had sent a copy to the HA on that date the HA say that they did not become aware of it until 22 January 2001 when the claimant mentioned it in a telephone conversation to one of the HA’s officers and faxed a copy of it to her.  The HA took the view that it was too late to appeal against the decision to issue the certificate (the time limit being one month of the receipt of the certificate: Land Compensation Development Order 1974, Article 4(1)).  Furthermore although, it appears, they were concerned that the terms of certificate might not reflect the resolution of the council on which it was based, no steps were taken through judicial review to challenge its validity.  Negotiations continued with the DV on the basis of the certificate.

5.           On 17 and 18 November 2003, aware that there could be a limitation problem in making a reference to the Tribunal, the claimant and the HA signed a letter of agreement confirming that should the matter be referred to the Tribunal at any time in the future the HA would accept the validity of the claim to compensation and would not seek to rely on any statutory limitation defence.  The claimant sent a completed notice of reference form to the Tribunal dated 21 November 2003, but this was not registered, quite possibly because in a letter to the Tribunal dated 25 November 2003 the claimant said that a reference at that time was “somewhat premature” and sought confirmation “that it will not be necessary to have the matter referred to the Lands Tribunal at present and that a reference will be accepted in the future, though technically out of time”.  The HA were not given notice of the making of a reference.  In January 2010, with no agreement on compensation reached, the claimant contacted the Tribunal, producing the 2003 documentation, and the reference was entered.  On 2 March 2010 the Registrar wrote to the HA’s solicitor saying that the Tribunal was treating the notice of reference as having been lodged on 24 November 2003.

6.           The HA now wish to apply for a further section 17 certificate.  Their planning consultants GVA Grimley Ltd produced a report supporting the grant of a certificate that “planning permission would have been granted at the relevant date for the scheme which has resulted in the acquisition of the subject land by the Highways Agency and for:

a)      reuse of existing buildings as stables with livery (up to 12 loose boxes), the construction of an outdoor manège and use of adjacent fields for grazing and riding (including show jumping and/or cross country practice);

but for no other class of development.”

The application was submitted to the council on 6 January 2010.  At that time the HA was not aware of the reference that the claimant had made in 2003.

7.           The purpose of seeking to obtain a second section 17 certificate in these terms, as Mr David Blundell for the HA explained, was so that the Tribunal would have before it two certificates in conflicting terms and could then determine that the later certificate was to be preferred and could assess compensation accordingly.  This objective is, as I shall say, in my view patently misconceived.  But I record that, in support of the application that leave should be given to enable a certificate to be applied for, Mr Blundell urged three principal reasons: that the HA was not aware of the reference to the Tribunal until after it had made its application for a certificate; that the claimant did not at any stage disclose that he had given notice of reference, even after being informed of the HA’s intention to seek its own certificate in August 2009; and that the certificate issued in December 2000 was, as he put it, “demonstrably flawed”.

8.           The material statutory provisions in the Land Compensation Act 1961 are these:

“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.

(2)     If the authority proposing to acquire the interest have served a notice to treat in respect thereof, or an agreement has been made for the sale thereof to that authority, and a reference has been made to the Upper Tribunal to determine the amount of the compensation payable in respect of that interest, no application for a certificate under this section shall be made by either of the parties directly concerned after the date of that reference except either -

(a)     with the consent in writing of the other of those parties, or

(b)    with the leave of the Upper Tribunal.

(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 times 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.”

9.           What the acquiring authority seek to achieve, as I have said, is the grant of a section 17 certificate in different terms from that granted in 2000 and for the Lands Tribunal to say that it prefers the later to the earlier certificate and assesses compensation on that basis.  The approach is completely misconceived, in my judgment.  Under section 15(5) in determining compensation the Tribunal must assume the grant of planning permission for the development specified in the 2000 certificate.  The requirement to make that assumption is unqualified.  There is no question of the assumption being negated in whole or in part by a later section 17 certificate that specifies more limited development and states the opinion of the planning authority to be that planning permission would not be granted for any development other than that specified.  This is made clear by the provisions of section 14(3A). 

10.        Subsection (3A) is set out above.  In Pentrehobyn Trustees v Secretary of State for Wales [2003] RVR 140 at paras 77 to 79 I expressed my view on the function of this provision.  What I said then in relation to (a) now appears to be inconsistent with Transport for London v Spirerose Ltd [2009] 1 WLR 1797, although it is not apparent whether the House of Lords had their attention drawn to it.  It is not (a), however, but (b) that is of direct relevance here.  Regard is to be had to any contrary opinion expressed in relation to the land in a section 17 certificate in determining “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.”  The express exclusion of section 15 makes clear that regard is not to be had to a contrary opinion expressed in another section 17 certificate when applying section 15(5).

11.        Mr Blundell accepted, despite his assertion that the 2000 certificate was “demonstrably flawed”, that it was a certificate issued under the provisions of Part III of the Act so that section 15(5) applied in relation to it.  He also accepted that the development referred to in the current application (livery stables, outdoor manège and the use of the fields) was covered by the 2000 certificate.  Thus the only purpose in seeking a new certificate would be to attempt to cut down the ambit of the 2000 certificate by having regard to such negative opinion as the later certificate might contain; and this, as I have said, cannot be done.

12.        Despite what appears to be the inescapable effect of sections 15(5) and 14(3A), Mr Blundell submitted that there was authority for the proposition that where two section 17 certificates affecting the same land were issued it would be for the Tribunal to resolve any inconsistency between them.  He relied for this proposition on the Court of Appeal decision in Hoveringham Gravels Ltd v Chiltern District Council (1977) 35 P & CR 295 and in particular a passage in the judgment of Roskill LJ at 302:

“One is, of course, involved in a highly artificial field.  Section 17 of the Act of 1961, with its provisions for certification of appropriate alternative development, involves that the land in question is to be deemed to have planning permission, which ex hypothesi in reality it would never have obtained because of the proposals for compulsory purchase.  But we think it is carrying artificiality too far to say that a section 17 certificate granted in respect of a whole area must forever after be applied for the purpose of valuing any part of that area, whatever the circumstances in which the valuation of that part falls subsequently to be made.  We think that that conclusion is reinforced by the fact that in the instant case there were two subsequent section 17 certificates, one for the front land and one for the back.  We do not follow the logic of an argument which involves wholly ignoring those latter certificates, even though the appellants obtained them without prejudice to their main contention – issued after the purchase notice had been confirmed and looking only at the earlier section 17 certificate issued in wholly different circumstances which subsequent events had overtaken.”

13.        The facts in that case (which most clearly appear in the Lands Tribunal decision (1975) 31 P & CR 466) were that the claimant owned an area of land 2.462 acres in extent fronting a road called Latimer Road.  It entered into negotiations with Chesham Urban District Council (the predecessors of the acquiring authority) for the sale to them of this land as a future public open space, and it applied to Buckinghamshire County Council for a section 17 certificate.  A certificate was granted on appeal under section 18 (“the June 1970 certificate”) certifying that planning permission might reasonably have been expected to be granted for residential development of the land at a density not excluding six dwellings per acre subject to access being from a service road from Latimer Road at one point only and subject also to the approval of details. 

14.        The claimants sought planning permission for the erection of six pairs of semi-detached houses on the land, but this was refused and an appeal against the refusal was dismissed.  The principal reason for refusal was that a road improvement line would affect that part of the site fronting Latimer Road.  The claimant then served a purchase notice on Chiltern District Council, but the council were unwilling to comply with it.  On reference to the Secretary of State the purchase notice was confirmed, but Buckinghamshire County Council were substituted as the purchasing authority for the land affected by the road widening proposal (0.652 of an acre, referred to as “the front land”), leaving the District Council as the purchasing authority of the remainder (1.810 acres, “the back land”).

15.        The claimants then applied for separate section 17 certificates in relation to the front land and the back land.  In relation to the front land the County Council granted a certificate (“the February 1974 certificate”) for residential development not exceeding six houses to the acre subject to conditions, one of which was that the land must be developed comprehensively with the back land.  In relation to the back land, 1.810 acres, the County Council granted a certificate (“the November 1974 certificate”) for residential development of not more than five houses.

16.        Before the Lands Tribunal the claimant sought compensation in respect of the back land on the basis of the permission to be assumed under the 1970 certificate with the value being apportioned between the front land and the back land.  The Tribunal (Douglas Frank QC and J R Laird FRICS) rejected this.  They said ((1975) 31 P & CR 466 at 476:

“The planning permission deemed by the ‘June 1970 certificate’ clearly permits and envisages a comprehensive scheme for the whole of the said enclosure of 2.462 acres subject to the approval of the reserved matters.  The local planning authority, confronted with an application showing only development on the back land, would be bound to say that that was not the development contemplated by the permission and further that it had become impossible to carry out the authorised development (see Pilkington v Secretary of State for the Environment (supra) and R v Secretary of State for the Environment, ex p. Percy Bilton Industrial Properties Ltd.)(1975) 19 SJ 794).  Further, an application relating only to the front land would evoke a similar response.  Our conclusion, therefore, is that having taken into account the ‘June 1970 certificate,’ it does not add to the amount of compensation because in the hypothetical circumstances we have to assume that development could not be carried out.”

 

17.        The Court of Appeal upheld the approach of the Tribunal.  Roskill LJ said (at 302-3, continuing the passage I have set out above):

“The appellants relied upon a decision of Winn J. in F. Lucas & Sons Ltd v Dorking and Horley Rural District Council 17 P & CR 111.  But there the partial development proposed was held to be comprised within the planning permission originally granted.  This decision was subsequently treated by the Divisional Court in Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527; (1973) 25 P & CR 508 (rightly, if we may respectfully say so) as where one of a number of grants of planning permission had been implemented, it was not thereafter permissible for the landowner to implement another grant of planning permission which was inconsistent with the permission already implemented.  We respectfully agree with and adopt the reasoning in the judgment of Lord Widgery CJ.  By parity of reasoning, when one is dealing with a deemed planning permission we think it is impossible logically to hold that the valuation of the back land, in relation to which a later specific section 17 certificate has been issued, must be determined by reference to and only to a previous section 17 certificate issued in relation to the whole area and a different proposed compulsory acquisition.  The Lands Tribunal expressed their conclusion thus: “A permission for the comprehensive development of an area does not permit piecemeal development not forming part of a scheme for the whole area.”  This passage was criticised as inconsistent with a previous passage reading thus: “We find nothing in the statutes nor in the June 1970 certificate to support the proposition that the certificate is only good for the acquisition for which it was granted.”  We do not think there is any inconsistency between these two passages if each is read in its proper context.  The latter passage is clearly intended to be directed to the position in the instant case.  In the result, we reject this part of the appellants’ submissions – that is, that the whole area should be valued and the resultant valuation apportioned between the front land and the back land in proportion to their respective acreages – and we reach the same conclusion as did the Lands Tribunal as to the inapplicability of the June 15, 1970 certificate.”

18.        It is clear from the facts and the passages that I have quoted that Hoveringham Gravels does not support Mr Blundell’s contention that, if two section 17 certificates are granted in terms that are inconsistent with each other (because of a negative opinion in either or both of them), the Tribunal may choose between them when applying section 15(5).  The question in that case was whether a section 17 certificate granted in respect of the 2.462 acre site had application to part only of that site, the back land, and both the Lands Tribunal and the Court of Appeal held, applying Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527, that it did not.  It clearly does not support the proposition that, if two section 17 certificates are granted in relation to the same land, the Lands Tribunal may choose between them.  As I have said, the Tribunal is bound under section 15(5) to assume the grant of planning permission for the development specified in each certificate; and regard is not to be had to any negative opinion in either certificate that conflicts with any such assumption.

 

19.        Despite the clear and thorough way in which Mr Blundell has sought to explain what the HA see as the merits of their application, the further section 17 application for which they seek leave would, for the reasons I have given, be pointless, and I refuse leave.

20.        Having said at the hearing that this is what I would do, I gave directions for the further conduct of the proceedings, and the order containing these accompanies this decision.  The parties are now invited to make submissions on costs in accordance with the accompanying letter.

Dated 19 August 2010

 

 

George Bartlett, President