Decision Nº LCA 129 2013. Upper Tribunal (Lands Chamber), 04-12-2014
| Jurisdiction | UK Non-devolved |
| Judge | Mr Andrew J Trott FRICSHis Honour Nicholas Huskinson |
| Date | 04 December 2014 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LCA 129 2013 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2014] UKUT 0527 (LC)
UTLC Case Number: LCA/129/2013
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – preliminary issues – Town and Country Planning Act 1990 ss. 97 and 107 – basis for calculation of compensation – 1951 planning permission for mining on Portland – permission becoming subject to procedure for the review of old mineral planning permissions (ROMP) under Environment Act 1995 Sched. 13 – designation of part of site as a Special Area of Conservation under Conservation (Natural Habitats etc) Regulations 1994 – in consequence compensating authority making a modification order under s. 97 of 1990 Act – whether compensation to be assessed taking into account fact that at the valuation date planning permission already subject to ROMP procedures
IN THE MATTER OF A NOTICE OF REFERENCE
BETWEEN (1) PORTLAND STONE FIRMS LIMITED Claimants(2) STONE FIRMS LIMITED
and
DORSET COUNTY COUNCIL Compensating Authority
Re: Quarries known as the Coastal Strip,
Portland,
Dorset.
Before: His Honour Judge Huskinson and A. J. Trott FRICS
Sitting at: Royal Courts of Justice, Strand, London WC2A 2LL
On: 13-14 November 2014
David Holgate QC and Robert Walton, instructed by Stephens Scown LLP, for the Claimants
Robin Purchas QC and Alexander Booth, instructed by Public Law Resource Ltd for the Compensating Authority
The following cases are referred to in this decision:Health and Safety Executive v Wolverhampton City Council [2012] 1WLR 2264
Trocette Property Co Ltd v GLC [1972] 28 P&CR 408
Transport for London v Spirerose Limited [2009] UKHL 44
MWH Associates Limited v Wrexham Borough Council [2011] UKUT 269 and [2012] EWCA Civ 1884
East End Dwellings Co Ltd v Finsbury Borough Council [1952] AC 109
Horn v Sunderland Corporation [1941] 2KB 26
Director of Buildings and Land v Shun Fung Iron Works Limited [1995] AC 111
Land and Property Ltd v Restormel Borough Council [2004] RVR 303
BPP (Farringdon Road) Ltd v Crossrail Ltd [2015] UKUT 0195 (LC)
GB Gas Holdings Ltd v Accenture (UK) Ltd [2010] EWHC 2928 (Comm
G Park Skelmersdale Ltd v Electricity Northwest Limited [2014] UKUT 0456 (LC)
The following further cases were referred to in argument:
Bernard Wheatcroft v Secretary of State (1982) 43 P&CR 233
Bond v Dorset County Council [2010] UKUT 364
Bwllfa and Merthyr Dare Steam Collieries 1891 Ltd v Pontypridd Waterworks Co [1903] AC 426
Hoare v National Trust (1999) 77 P&CR 366
R v Caradon District Council (2000) 80 P&CR 154
Ryde International Plc v London Regional Transport [2004] EWCA Civ 232
Secretary of State v Ioannou [2014] EWCA Civ 1432
Waters v Welsh Development Agency [2004] UKHL 19
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This decision is concerned with certain preliminary issues which have been raised in a reference in which the claimants claim compensation from the compensating authority under section 107 of the Town and Country Planning Act 1990 (“the 1990 Act”) for loss or damage which is directly attributable to a modification made by an order under section 97 of a planning permission relating to land in which the claimants are interested. The land in question comprises quarries known as the Coastal Strip, Portland, Dorset. These are quarries from which Portland stone can be obtained.
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The way in which the claimants present their cases involves the first claimant claiming a total of £14,450,000 in respect of loss of profits etc and the second claimant claiming £2,715,100 based on the loss of royalty income. For the purposes of the decision of the preliminary issues it is not necessary to distinguish between the position of the two claimants and we hereafter refer to them together as the claimants.
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The relevant planning permission, which was the subject of the modification order, is a permission dated 14 August 1951 granted over 323 hectares on Portland including the Coastal Strip. The planning permission was subject only to two conditions and in consequence had the effect of permitting the claimants (or their predecessors) to work and win stone from the quarries with little restriction.
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On 14 June 2005 the Isle of Portland Studland Cliffs Special Area of Conservation was designated in accordance with Regulation 11 of the Conservation (Natural Habitats etc) Regulations 1994 (“the Habitats Regulations”). As a result Dorset County Council (“DCC”) became obliged pursuant to regulation 50(1) of the Habitats Regulations to review the 1951 permission. DCC did so and ultimately, in consequence of this review, made the modification order. Regulation 51(5) required any modification effected pursuant to regulation 51 to be carried out under existing statutory procedures – hence the modification order was made under section 97 of the 1990 Act.
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It is the making of this modification order which has given rise to the present claim for compensation. The parties have helpfully prepared a detailed and lengthy Statement of Facts extending to 11 pages and also a detailed Position Statement extending to seven pages. It is not necessary for the purposes of the preliminary issues to rehearse the facts in any great detail. In summary the matters in this paragraph and the following paragraph should be noted:
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14 August 1951: grant of the planning permission.
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5 November 1987: land at Portland including the Coastal Strip was notified as a Site of Special Scientific Interest (“SSSI”) pursuant to the Wildlife and Countryside Act 1981.
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20 June 1998: English Nature designated land at Portland as a candidate Special Area of Conservation.
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19 October 1998: the claimants’ predecessors in title applied to DCC pursuant to section 96 and paragraph 9 of Schedule 13 of the Environment Act 1995 (“the 1995 Act”) to determine the conditions to which the 1951 permission should be subject in respect of the Coastal Strip. Schedule 13 made provision for the review of old mineral planning permissions (hence the acronym ROMP). It was necessary for the claimants’ predecessors to make such an application because otherwise, pursuant to paragraph 12 of Schedule 13, if no such application had been made by the relevant date then the permission relating to the quarries would cease to have effect (apart from restoration or aftercare conditions).
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16 November 1998: DCC served a notice under paragraph 9(10) of Schedule 13 on the claimants’ predecessors requiring further details in respect of the ROMP application including an environmental statement. This notice had the effect that the three month period for determination of the ROMP application under paragraph 9 would not start to run until DCC had received all of the further details specified in the notice.
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May 2002: the claimants' predecessors submitted a draft environmental statement. This led to detailed comments from DCC and a request for extensive further information. On 5 May 2006 the claimants submitted an environmental statement. DCC notified the second claimant on 1 August 2007 that the environmental statement was incomplete and further information was required. On 12 August 2008 DCC issued a screening opinion requiring provision of an environmental statement once DCC had adopted a scoping opinion. However DCC has not to date adopted a scoping opinion. As a result the ROMP application remains undetermined.
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As far as concerns the Special Area of Conservation (“SAC”), the Isle of Portland to Studland Cliffs Special Area of Conservation was designated on 14 June 2005. In consequence:
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This gave rise to an obligation upon DCC under regulation 50 of the Habitats Regulations as soon as practicable to review the 1951 planning permission and to affirm, modify or revoke it. For that purpose DCC was required to make an appropriate assessment of the implications for the SAC in view of the SAC’s conservation objectives. The provisions of regulation 48(2) to (4) were made applicable with the appropriate modifications. Under regulation 48(5) DCC could only agree to the 1951 permission remaining unmodified if it had ascertained it would not adversely affect the integrity of the SAC.
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Regulation 56(1) required DCC to consider if any adverse effects on the SAC could be overcome by means of a section 106 obligation and, if they could...
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