Hallam Land Management Ltd Against A Decision Of Scottish Minister
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Neutral Citation | [2007] CSOH 69 |
| Docket Number | XA42/04 |
| Date | 19 April 2007 |
| Court | Court of Session |
| Published date | 19 April 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 69 | |
| XA42/04 XA156/04 | OPINION OF LORD BRAILSFORD in the appeal of HALLAM LAND MANAGEMENT LIMITED Appellant; against THE SCOTTISH MINISTERS Respondent: ________________ |
Appellant: J G Reid, Q.C.; Biggart Baillie
Respondents: R Crawford; R Henderson, Scottish Executive
19 April 2007
[1] This is an appeal under section 29 of the Land Compensation (Scotland) Act 1963 by Hallam Land Management Limited against a decision of the Scottish Ministers dated 22 October 2004. The appellant was aggrieved by the said decision of the Scottish Ministers relating to the terms of a Certificate of Appropriate Alternative Development ("CAAD") issued by East Dunbartonshire Council on 26 April 2002 in respect of an area of land extending to approximately 2.27 hectares located on the western side of the village of Torrance. The CAAD had been made following application by the appellant to East Dunbartonshire Council dated 27 February 2002. The application stated that residential development, either immediately or at a future time would be an appropriate use for the land if it were not proposed to be compulsorily acquired. The CAAD provided that:
".... the only acceptable use of the land would be amenity space for informal recreation and nature conservation interests and planning permission would not have been granted for any other development."
The reasons stated for this determination in the CAAD were:-
"In view of national, strategic and local plan policy, and the consistent approach of the planning authority (supported by the Scottish Office/Executive at appeal), it is clear that the continued use of the site as amenity space for informal reaction and nature conservation interests is the only appropriate use both immediately or at a future time."
It was the contention of the appellants that the said decision dated 22 October 2004 was not within the powers of the Ministers under the said Act of 1963 and that the appellant's interests had been substantially prejudiced by failure to comply with the requirements of the Act.
[2] The appellants contend that the said certificate should state that the site is in whole or in part suitable for residential development. The Scottish Ministers have decided in the said decision letter of October 2004 that no part of the site is suitable for residential development. It was submitted on behalf of the appellant that the Scottish Ministers and the reporter erred in law in a number of respects thus vitiating the decision.
[3] There was no material dispute between the parties as to the statutory background. The relevant statutory provision was the Land Compensation (Scotland) Act 1963 ("the 1963 Act"). Part IV of that Act is titled "Certification by Planning Authorities of Appropriate Alternative Development". Section 25 has the title "Certification of appropriate alternative development" and, as I understand it, provides a mechanism by which the development potential of land can be tested by either the owner of land to be compulsorily acquired or the planning authority. Sections 25-30 of the 1963 Act set out the procedure governing such applications and any subsequent appeals. For the purposes of this appeal the relevant parts of these provisions are as follows:
"25(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, ...., apply to the 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 powers and, if so, shall specify the classes of development and the times at which they would be appropriate.
(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 would have been granted for development of one or more classes specified in the certificate (whether specified in the application or not) and for any development for which the land is to be acquired, but would not have been granted for any other development; or
(b) 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.
(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 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 .... otherwise than in accordance with the provisions of the development plan relating thereto."
I interject here to note that the certificates contemplated by subsection (4)(a) and (b) have been referred to as positive and negative certification respectively (by Lord Bridge of Harwich in Grampian Regional Council v Secretary of State for Scotland 1984 SC(HL) 1 at page 29) and that that description was adopted in argument in the current case. Section 26 provides that where a local planning authority have issued a certificate under section 25 in respect of an interest in land persons being entitled to that interest or any authority possessing compulsory purchase powers by whom that interest is proposed to be acquired may appeal to the Scottish Ministers against that certificate. Section 29 provides that any person aggrieved by a decision of the Scottish Ministers under section 26 may make an application to this court and that in terms of section 29(1)(b) the court
"if satisfied that the decision is not within the powers of this Act or that the interests of the applicant have been substantially prejudiced by a failure to comply with said requirements, may quash the decision."
It is the application of the principles set forth in those provisions, and in particular section 25, with which this appeal is concerned.
[4] For completeness I should mention certain other statutory provisions which were referred to in debate and which featured in counsel's argument. My attention was drawn to section 17 of the Land Compensation Act 1961, the English statutory enactment governing CAAD in that jurisdiction. Section 17(4) of the Act is the broad equivalent of sections 25(3) and (4) of the 1963 Act and is in the following terms.
"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, ...... 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 would have been granted for development of one or more classes, specified in the certificate (whether specified in the application or not) and for any development for which the land is to be acquired, 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."
My attention was also drawn to certain provisions in Part III (sections 12-24) of the 1963 Act. That part of the Act sets forth provisions relating to the assessment of compensation. Section 12 sets out six rules which are, again as I understand the statutory intention, designed to assist a person determining a valuation of the land in question. In argument reference was made only to the first two rules (section 12(1) and (2)), that no allowance shall be made on account of the acquisition being compulsory and a definition for open market valuation. Beyond those general rules I was referred in Part III of the 1963 Act to sections 22(1) and 23(5) relating to assumptions as to planning permission relevant to determination of compensation.
[5] Mr Reid QC for the appellant indicated that his argument fell into four distinct parts; (1) an overall summary, (2) some background information and a history of the site, (3) submissions in relation to the decision letter of 22 October 2004 and (4) argument directed to the grounds of appeal.
[6] The broad summary given by Mr Reid was that the Scottish Ministers in reaching their decision had failed to disregard the underlying public purpose for which the land was acquired, namely public amenity and open space for informal recreation and nature conservation. He submitted that that purpose fell to be treated as having been cancelled at the relevant date, namely 22 March 2001, which was the date the Scottish Ministers confirmed the statutory purchase notice given under section 88 of the Town & Country Planning (Scotland) Act 1997 and was thereby deemed to be the date on which the acquiring authority were authorised to acquire compulsorily the appellant's interest in the site. I interject to record that there was no dispute between Mr Reid and Miss Crawford for the Scottish Ministers as to the relevant date. Mr Reid further submitted that the issue he had...
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Hallam Land Management Limited V. The Scottish Ministers
...Lord Ordinary (Brailsford) for a hearing on 23, 24 and 25 May 2006. At advising, on 19 April 2007, the Lord Ordinary refused the appeal ([2007] CSOH 69). Hallam Land Management Ltd reclaimed. Cases referred to: Adams & Wade Ltd v Minister of Housing and Local GovernmentUNK (1967) 18 P&CR 60......