Secretary of State for the Environment v Fletcher Estates (Harlescott) Ltd ; Newell and Others v Secretary of State for the Environment
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,LORD JUSTICE PETER GIBSON,LORD JUSTICE NOURSE |
| Judgment Date | 11 June 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0611-19 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBCOF 97/0919/4 |
| Date | 11 June 1998 |
[1998] EWCA Civ J0611-19
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(Mr Justice Dyson)
Royal Courts of Justice
Strand, London WC2
Lord Justice Nourse
Lord Justice Peter Gibson and
Lord Justice Buxton
QBCOF 97/0919/4
MR D OUSELEY QC and MR R SINGH (instructed by the Treasury Solicitor, London SW1) appeared on behalf of the Appellant.
MR R PURCHAS QC and MR T COMYN (instructed by Messrs Manby & Steward, Wolverhampton) appeared on behalf of the Respondents.
Thursday, 11th June 1998
The issues and the statutory framework
This appeal concerns two questions, which we were told were undecided but of considerable general importance, that arise in connexion with the determination by the Lands Tribunal of compensation for land compulsorily acquired, or proposed to be compulsorily acquired, under the Land Compensation Act 1961, as amended [the 1961 Act]. It will be convenient first to refer to the statutory framework.
By Part II of the 1961 Act the Lands Tribunal values the land in question at its open market value as sold by a willing seller, subject however to certain assumptions. Those assumptions include assumptions as to the planning permission that would be available in respect of the land, that clearly being a significant factor in its market value. By section 15(5), where a certificate has been issued by the local planning authority, or on appeal by the Secretary of State, as to the planning permission that would have been granted for the land, the Lands Tribunal in valuing the land shall assume that that planning permission would, indeed, be granted.
This process of certification is dealt with in Part III of the 1961 Act. Since the proper construction of the relevant provisions lies at the heart of this appeal they cannot be summarised, but must be set out in full:
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 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.
In the present case, there were before the judge two applications under Section 21 of the 1961 Act to quash decisions of the now appellant [the Secretary of State] made under section 18 of the 1961 Act, whereby he allowed appeals by the Secretary of State for Transport against certificates of appropriate alternative development in respect of two parcels of land at Sundorne, Shrewsbury. The land was proposed for compulsory purchase by the Secretary of State for Transport for the purpose of constructing the A49 Shrewsbury by-pass. The date of the notice under section 22(2)(a) of the 1961 Act was the 30th January 1986. In late 1992 the applicants (now the respondents) applied for certificates of appropriate alternative development under section 17. The local authority issued certificates on 8th May 1993 for residential and industrial development. The Secretary of State for Transport appealed against the certificates under section 18. By his decision letter dated 4th July 1996 the Secretary of State allowed the appeals, substituting negative certificates under section 17(4)(b) of the 1961 Act.
Against this background, the issues in the appeal were:
I Is the relevant date at which the decision under s 17(4) has to be made
A. the section 22(2)(a) date (the notice date), as found by the judge? or
B the date of entry on the land, as contended for by the appellant Secretary of State?
II In making that decision, do the words "if it were not proposed to be acquired" in s 17(4)mean that there should be discounted
A the s 22(2)(a) compulsory acquisition, and the proposal underlying that acquisition as it stood at the relevant date, as the Secretary of State contends; or
B additionally the facts and policies that resulted from a/the underlying scheme that culminated in that compulsory acquisition, as the judge found.
This latter contest, on Issue II, was if I may say so neatly summarised by Dyson J in the judgment below:
[The respondents] contended that …the policies and facts applicable at the relevant date should have been viewed as if the by-pass scheme had never been conceived at all. [The Secretary of State] contended that the policies and facts should be taken on the relevant date as if the scheme had been cancelled on that date, and not as if the scheme had never been conceived at all.
It is convenient to take these issues separately although, as will become apparent, in my view the correct solution to issue I dictates the answer to issue II.
Issue I
This issue is concluded as a matter of authority by the decision of this court in Jelson v MHLG [1970] 1 QB 243 [ Jelson]. In that case there had been long-standing proposals for the construction of a by-pass. Land abutting on to the site of the by-pass was developed for housing. When the plan for the by-pass was abandoned, the owners of the land on which it was to have been constructed applied for planning permission for the construction of housing, which permission was refused because housing on that site would adversely affect the existing housing. The owners thereupon applied under section 129(1) of the Town and Country Planning Act 1962, which provides that:
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