Roberts and another and South GLOUCESTERSHIRE Council [CA (Civil), 07/11/2002]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,LORD JUSTICE POTTER,THE VICE-CHANCELLOR |
| Judgment Date | 07 November 2002 |
| Neutral Citation | [2002] EWCA Civ 1568 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2001/2693 |
| Date | 07 November 2002 |
[2002] EWCA Civ 1568
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Lands Tribunal
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Vice-Chancellor
Lord Justice Potter and
Lord Justice Carnwath
Case No: C2001/2693
Mr Nicholas Nardecchia (instructed by Burningham & Brown) for the Appellants.
Ms Frances Patterson QC and Mr Robert Palmer (instructed by Mr Michael Hewitt, Solicitor, South Gloucestershire Council) for the Respondents.
This is an appeal from a decision of the Lands Tribunal, awarding compensation for compulsory acquisition of the claimants' land. The land, which was in agricultural use, was acquired by the District Council to build Stage 4A of the Avon Ring Road. The length of this Stage was 2.8 kilometres, of which a small central section, 204 metres long, ran over the claimants' land. The council granted itself permission covering the whole of this Stage in January 1988. The compulsory purchase order, which also related to the whole Stage, was confirmed in April 1991, and possession of the claimants' land was taken on 14 th October 1991 (the valuation date).
It is a striking and regrettable feature of the case that 11 years later the compensation has still not been settled. However, the reasons for that are not relevant to the limited issue of law which we have to decide. It underlines, yet again, the importance of the Government's current proposals, with the assistance of the Law Commission, for streamlining the Compulsory Purchase procedures.
One of the delaying factors was the adjournment of the Lands Tribunal proceedings, to enable the making of an application by the District Council for a certificate under section 17 of the Land Compensation Act 1961 of appropriate alternative development. This resulted in an appeal to the Secretary of State, which was determined in February 1998. One of the issues canvassed in that appeal was whether, in the absence of the road proposal, permission would have been granted for mineral extraction from the subject land. That possibility was rejected by the Secretary of State as contrary to the planning policies for the area.
The certificate issued by the Secretary of State stated that the only alternative form of development, for which permission would have been granted in the absence of the road proposal, was the laying out of sports pitches and the erection of a clubhouse. It was not suggested before the Tribunal that that possibility added anything to the ordinary agricultural value of the land. The certificate also stated that permission would have been granted "for any development for which the land is being acquired". As I understand it, that wording was not intended to add anything of substance, but simply designed to reproduce the effect of the statutory provisions to which I will come.
The Tribunal determined compensation in the sum of £17,000, which reflected agricultural value only. It rejected the claimants' contention that compensation should be based on the possibility of mineral extraction. However, it made an alternative finding (under Rule 50(4) of the Lands Tribunal Rules 1949), that, had it determined the legal argument in the claimants' favour, it would have awarded £86,000.
The background to the alternative contention was that the short section of road passing through the claimants' land was designed to be in a deep cutting. The relevant finding of the Tribunal was as follows:—
"The construction of the ring road, where passing through the subject land, required the extraction of approximately 56,114 cu.m. (123,450 tonnes) of materials which included topsoil and a mixture of clay, weak weathered silt sandstone and thinly bedded laminated sandstone to a depth of about 4 metres, and Pennant sandstone to a total depth of 8.46 metres. This provided a cutting over which a new overbridge would be built on the line of, and at the existing level of, Abbots Road. To facilitate the construction of the bridge, and to allow Abbots Road to continue to be used, a temporary diversion (or land-bridge) was constructed on the subject land utilising an estimated 10 per cent of the materials extracted from the claimants' land. The balance of the excavated materials were removed and used partly for landscaping and the formation of a sound-bund elsewhere on the scheme, or tipped."
The claimants' argument was that, under the 1961 Act, it is to be assumed that permission would have been available to a hypothetical purchaser of the claimant's land for extraction of those same materials from his land, without any obligation to complete that part of the road (Decision para 185–186). The Tribunal's alternative finding is based on this hypothesis. The Tribunal made clear that, if the hypothetical purchaser were required to complete the road, the cost of completing the road would far outweigh any potential value of the minerals (para 201).
At first sight, the claimants' contention seems surprising, because it appears to conflict with the well-known principle stated in the Pointe Gourde case, that compensation for compulsory acquisition "cannot include an increase in value which is entirely due to the scheme underlying the acquisition" ( Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565, 572 per Lord McDermott). Here it is not in dispute that the only possibility of exploiting these minerals in the foreseeable future is derived from the road scheme. However, Mr Nardecchia for the claimants has submitted that the relevant provisions of the Land Compensation Act 1961, supported by decisions of this Court, compel the conclusion that the alternative basis should have been accepted.
I turn therefore to the Act. The starting point is the market value of the land; that is "the amount which the land if sold on the open market by a willing seller might be expected to realise" (s.5(2)). Sections 14 and 15 set out certain assumptions to be made in relation to planning permission. By section 14(2), any assumptions derived from the Act are to be "in addition to any planning permission which may be in force at the date of service of the notice to treat". (In this case the notice to treat was served on 9 th August 1991, but nothing turns on the difference between that date and the valuation date).
Section 15 provides as follows:—
"(1) In a case where—
(a) the relevant interest is to be acquired for purposes which involve the carrying out the proposals of the acquiring authority for development to the relevant land or part thereof, and
(b) on the date of service of the notice to treat there is not in force planning permission for development,
it shall be assumed that planning permission would be granted, in respect of the relevant land or that part thereof, as the case may be, such as would permit development thereof in accordance with proposals of the acquiring authority.
(2) For the purposes of paragraph (b) of the preceding sub-section, no account shall be taken of any planning permission so granted as not to enure (while the permission remains in force) for the benefit of the land and of all persons for the time being interested therein."
Section 15 (5) provides that permission is to be assumed in accordance with a certificate granted under section 17. (A contrary indication in the decision on the section 17 application is not conclusive against the claimant, although regard must be had to it in deciding, where relevant, what permission might reasonably have been expected to have been granted: see s.14(3A). That issue does not arise in this case.)
Reference must also be made to the definitions of "relevant interest" and "relevant land" (1961 Act s39 (2)). In summary the relevant interest and the relevant land are those which are subject to the particular notice to treat, and therefore, in this case, are confined to the claimants' interest in the land acquired from him (rather than any other land within the authority's scheme). We were also referred to section 6 and Schedule 1 of the Act, which, in summary, require any increase or diminution in the value of the relevant interest to be disregarded, insofar as it is attributable to the authority's development on other land within the same compulsory purchase order.
There was some discussion before us of the interaction between these various provisions. However, their overall effect in the present context in my view is not in doubt. The actual permission for the road is of no relevance, because it enured solely for the benefit of the authority (see Town and Country Planning General Regulations 1976 Reg 4(7)), and was therefore of no value to the claimant. However, for the same reason, by virtue of section 15(2), it leaves the claimant free to rely on an assumed permission (under s 15(1)), such as would permit development of the claimants' land in accordance with the authority's proposals. (As I have said, the fact that the same right was also stated in the section 17 Certificate itself, adds nothing.)
Conversely, there is to be disregarded any increase or decrease in value due to the prospect of the carrying out of the authority's road proposal on any land apart from the claimants' own land. In the present case, it does not seem to me to matter whether one gets to that result from the definition of "relevant interest" and "relevant land", from section 6 and Schedule 1, or from the Pointe Gourde principle itself.
The relation of the planning assumption in section 15 and the Pointe Gourde principle was discussed by the...
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...v Secretary of State for the Environment (1976) 31 P&CR 403 at pp405, 406–7; and Roberts v South Gloucestershire District Council [2002] EWCA Civ 1568, [2003] 1 P&CR 26, at 6 see cases on what constitutes a limitation from Wilson v West Sussex County Council [1963] 2 QB 764 to Winchester Ci......