Grampian Regional Council v Secretary of State for Scotland
Jurisdiction | England & Wales |
Judge | Lord Fraser of Tullybelton,Lord Keith of Kinkel,Lord Scarman,Lord Bridge of Harwich,Lord Templeman,Lord Roskill |
Judgment Date | 24 November 1983 |
Judgment citation (vLex) | [1983] UKHL J1124-2 |
Court | House of Lords |
Docket Number | No. 1.,No. 3. |
Date | 24 November 1983 |
[1983] UKHL J1110-2
House of Lords
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Scarman
Lord Bridge of Harwich
Lord Templeman
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. I agree with it and for the reasons stated in it I would dismiss these appeals.
My Lords,
I agree that these appeals should be dismissed for the reasons set out in the speech to be delivered by my noble and learned friend, Lord Bridge of Harwich.
My Lords,
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Bridge of Harwich. I agree with it, and for the reasons he gives I would dismiss the appeals. I also agree with the proposed order as to costs.
My Lords,
The first appellants ("the education authority") acquired from the second respondents ("the landowners") sites for a primary and a secondary school in a newly developed suburb of Aberdeen called Westhill on terms agreed pursuant to offers in writing made by the education authority on 15th December 1976 and 13th January 1977 respectively. The agreements provided for the landowners to receive the same compensation, fixed as at the date of the respective offers, as if the land had been acquired compulsorily.
On 28th July 1978 the landowners applied to the second appellants ("the planning authority") pursuant to section 25 of the Land Compensation (Scotland) Act 1963 ("the Act") for certificates of appropriate alternative development. Parallel applications by the education authority give rise to no separate issue and can for present purposes be ignored. The planning authority issued certificates to the landowners stating that, in their opinion, planning permission would not have been granted for any development other than that proposed to be carried out by the education authority. The landowners appealed to the first respondent ("the Secretary of State") pursuant to section 26 of the Act who, after receiving the report of a public inquiry, allowed the appeals, cancelled the certificates issued by the planning authority, and certified that planning permission would have been granted, in respect of the primary school site for residential development, and in respect of the secondary school site for residential or commercial development, in each case subject to conditions. The education authority and the planning authority applied to the Court of Session, pursuant to section 29 of the Act, to quash the decision of the Secretary of State. By a majority (Lord Dunpark and Lord McDonald, Lord Avonside dissenting) the Court affirmed the decision. The education authority and the planning authority now appeal to your Lordships' House.
The substantive provisions governing the assessment of compensation for the compulsory purchase of land on which the questions raised by these consolidated appeals depend were first enacted in the Town and Country Planning Act 1959 and the Town and Country Planning (Scotland) Act 1959. They are now embodied in the Land Compensation Act 1961 ("the English Act") and the Act. Both Acts have been subject to minor amendments, which do not, in my opinion, affect the questions presently arising for decision. As one would expect in relation to such a subject matter, the substance of the law is the same on both sides of the border. I shall not encumber this opinion with references to the English Act, but merely note here that the sections of the Act to which I shall be referring have their exact counterparts in the English Act.
Part III of the Act (sections 12 to 24) is headed: "Provisions Determining Amount of Compensation". Part IV (sections 25 to 30) is headed: "Certification by Planning Authorities of Appropriate Alternative Development". These two Parts are interdependent.
Section 25 of the Act (as amended by the Community Land Act 1975) provides, so far as relevant, as follows:
"(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 planning authority for a certificate under this section.
(2) ..…
(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)….
( c)….
(4) Where an application is made to the planning authority for a certificate under this section in respect of an interest in land, the planning authority shall …. issue to the applicant a certificate stating that, in the opinion of the planning authority in respect of the land in question, either —
( a) planning permission for development of one or more classes specified in the certificate (whether specified in the application or not) would have been granted; or
( b) 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.
(5) Where, in the opinion of the planning authority, planning permission would have been granted as mentioned in subsection (4)( a) 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."
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: section 23 (5). If a negative certificate is issued, "regard is to be had" to the negative opinion certified: section 22 (3). Although this is not conclusive, it is difficult to envisage a situation in practice in which the Lands Tribunal, when assessing compensation, could be persuaded to act on a contrary opinion to that certified by the planning authority or the Secretary of State on appeal.
The general Westhill development was not carried out pursuant to formal provisions of the development plan. It was approved by the Secretary of State as a departure from the plan. To use ordinary language and avoid planning jargon, it has always been envisaged that this substantial new urban community would need to be served by schools provided by the education authority and the two school sites which are the subject of these appeals have from the outset been earmarked to meet that need. The primary school site is surrounded by residential development. The secondary school site has residential development on three sides and either has, or will in due course have, commercial and public buildings on the fourth. The landowners have no doubt profited handsomely from the development of other land in their ownership at Westhill. But it has not been suggested that this has any relevance in deciding what certificates are appropriate for the school sites under section 25(4). The same certificates would be appropriate if these two sites were isolated pockets of land in separate ownership from any other land at Westhill.
The cornerstone of the argument for the appellants is section 30(2) of the Act which provides:
"For the purposes of sections 25 and 26 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 purposes 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...
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