Fletcher Estates (Harlescott) Ltd and Another v Secretary of State for the Environment and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DYSON |
| Judgment Date | 10 June 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0610-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 June 1997 |
| Docket Number | CO-2727-96 |
[1997] EWCA Civ J0610-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
The Strand
Mr Justice Dyson
CO-2727-96
CO-2728-96
and
and
MR R PURCHAS QC and MR T COMYN (Instructed by Messrs Manby & Steward, Telford) appeared on behalf of the Applicant.
MR J SULLIVAN QC and MR R SINGH (Instructed by Treasury Solicitors, London SW1) appeared on behalf of the Respondent.
Introduction.
There are before me two applications under Section 21 of the Land Compensation Act 1961 ("the 1961 Act") to quash decisions of the first respondent made under section 18 of the 1961 Act, whereby he allowed appeals by the second respondent against certificates of appropriate alternative development in respect of two parcels of land at Sundorne, Shrewsbury. The land, which I will refer to as "the Longmore land" and "the Fletcher land" was proposed for compulsory purchase by the second respondent for the purpose of constructing the A49 Shrewsbury-bypass. The date of the proposal to acquire as defined under section 22(2) of the 1961 Act was the 30th January 1986. The date of entry in each case was the 5th July 1990. On 19th October 1992 (in respect of the Fletcher land), and 4th December 1992 (in respect of the Longmore land) the applicants applied for certificates of appropriate alternative development under section 17. The local authority issued certificates on 8th May 1993 for residential and industrial development (in the case of the Longmore land), and residential development (in the case of the Fletcher land). The second respondent appealed against the certificates under section 18. By his decision letter dated 4th July 1996 the first respondent allowed the appeals substituting negative certificates in each case under section 17(4)(b) of the 1961 Act.
Legislative Framework.
The principal relevant provisions of the 1961 Act in the form in which it was at the time that is material for the purposes of these applications were as follows:
"17. Certification of appropriate alternative development
(1) Where an interest in land is proposed to be acquired by an authority possessing compulsory purchase powers, and that land or part thereof does not consist or form part of—
(a) an area defined in the development plan as an area of comprehensive development, or
(b) an area shown in the development plan as an area allocated primarily for a use which is of a residential, commercial or industrial character, or for a range of two or more uses any of which is of such a character,
then, subject to subsection (2) of this section, either of the parties directly concerned may 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 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 on the other party directly concerned.
(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 21 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 an authority possessing compulsory purchase powers, that is to say—
(a) that planning permission for the development of one or more classes specified in the certificate (whether specified in the application or not) would have been granted; or
(b) that planning permission would not have been granted for any development other than the development (if any) which is proposed to be carried out by the authority by whom the interest is proposed to be acquired.
(7) In determining, for the purposes of the issue of a certificate under this section, whether planning permission for any particular class of development would have been granted in respect of any land, the local planning authority shall not treat development of that class as development for which planning permission would have been refused by reason only that it would have involved development of the land in question (or of that land together with other land) otherwise than in accordance with the provisions of the development plan relating thereto.
18(2) On any appeal under this section against a certificate the Minister shall consider the matters to which the certificate relates as if the application for a certificate under section 17 of this Act had been made to him in the first instance, and shall either confirm the certificate, or vary it, or cancel it and issue a different certificate in its place, as he may consider appropriate.
22(2) For the purposes of section 17 and 18 of this Act, an interest in land shall be taken to be an interest proposed to be acquired by an authority possessing compulsory purchase powers in the following (but no other) circumstances, that is to say—
(a) where, for the purpose of a compulsory acquisition by that authority of land consisting of or including land in which that interest subsists, a notice required to be published or served in connection with that acquisition, either by an Act or by any Standing Order of either House of Parliament relating to petitions for private bills, has been published or served in accordance with that Act or Order; or
(b) where a notice requiring the purchase of that interest has been served under any enactment, and in accordance with that enactment that authority are to be deemed to have served a notice to treat in respect of that interest; or
(c)where an offer in writing has been made by or on behalf of that authority to negotiate for the purchase of that interest."
The Issues.
1. Was the first respondent correct in adopting the 6 July 1990 ( the date of entry) as the relevant date for the purposes of considering the application of current and reasonably forseeable planning policies?
2. In his application of section 17 of the 1961 Act, was the first respondent correct in not discounting the effect of the proposal to acquire the land before the date of the proposal to acquire, namely 30th January 1986?
3. In rejecting the Inspector's conclusion at paragraph 14.13 of his report, did the first respondent err in relying upon the fact that the route immediately to the east of the by-pass ("the alternative route") had not been subject to a highway inquiry?
4. Further or alternatively, did the first respondent err in failing to give the applicants the opportunity to provide evidence or otherwise deal with the question of comparative costs and engineering evidence; alternatively was the decision in that respect in breach of natural justice?
5. Further or alternatively, were adequate reasons given by the first respondent for his conclusions at paragraph 17 of the decision letter.
The first two issues raise questions of some general importance. It will be seen that issues 3 to 5 involve a consideration of the details of the Inspector's Report and the decision letter. I shall set out the relevant passages in those documents when I come to deal with those issues.
The First Issue.
I shall refer to the relevant date for the purposes of considering the application of current and reasonably forseeable planning policies as " the relevant date". For the Applicants it is submitted that the relevant date was 30 January 1986, the date of the proposal to acquire as defined by section 22(2)(a) of the 1961 Act. For the first respondent it is submitted that the relevant date was the date of entry. It is common ground that the Court of Appeal decision of Jelson v Ministry of Housing and Local Government [1970] QB 243 obliged the first respondent to treat the section 22(2)(a) date as the relevant date for the purposes of determining the physical state of the land.
In my view, the language of section 17 when read literally does not provide the answer to the question raised by this issue. Section 17(1) merely provides that it is a prereqisite of an application for a certificate of appropriate alternative development that one of the events referred to in section 22(2) has occurred. The phrase "immediately or at a future time" in section 17(3)(a) does not point to one date rather than another. Nor does the language of section 17(4) provide the answer: note the words "would have been granted" and "would not have been granted".
It is clear that the purpose of certificates issued under section 17 is that they should be an aid to the assessment of compensation: see eg per Lord Bridge in Grampian Regional Council v Secretary of State for Scotland [1983] 47 P & CR 540, 574. It assists in the process of assessment because the parties, or in default of agreement, the Lands Tribunal need to know what assumptions to make as to planning permission in determining the price to be paid by the acquiring authority. It is also well established...
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