Leech v Northumberland CC

 

1.  This is an appeal under s.18 of the Land Compensation Act 1961 (LCA 1961) arising out of the compulsory acquisition of land at East Lane End Farm, Morpeth belonging to the appellant, Leech Homes Ltd.  The land is just outside the settlement boundary for Morpeth and was taken on 16 March 2015 for the construction of the Morpeth northern bypass.  The appellant seeks a certificate of appropriate alternative development (CAAD) under s.17, LCA 1961 and contends that, absent the bypass scheme, appropriate alternative development would have been residential development comprising approximately 135 dwellings with associated infrastructure, landscaping, open space and access.

 

2.             The significance of development being identified as appropriate alternative development is that, when compensation comes to be assessed, it must be assumed that planning permission for that development either was in force at the valuation date, or would with certainty be in force at some future date identified in the certificate (s.14(3), LCA 1961).

 

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4.             The acquiring authority, Northumberland County Council (the Council), which is also the local planning authority, maintains that there is no development which would be appropriate alternative development because the land taken is within the general extent of the green belt and that green belt policies therefore apply to it.  The proposition that green belt policies apply to the land is the result of the Council’s interpretation of Policy S5 of the Northumberland County and National Park Joint Structure Plan (first alteration, 2005) which proposed an extension to the green belt around Morpeth with its precise boundaries to be defined in local plans.  Those precise boundaries had not been defined by the valuation date, 16 March 2015.  But the suggestion that green belt policies are to be applied to this site is said by the appellant to be contrary to advice given to the Secretary of State by the Council before confirmation of the necessary development consent order and contrary to the approach taken by the Council to comparable sites immediately adjoining the settlement boundary.

 

6. The critical issue in the appeal is therefore whether as a result of Policy S5 the appellant’s land was within the green belt or was otherwise land to which green belt policies ought to be applied at the relevant valuation date.

 

10. Compensation is payable after the compulsory acquisition of land under rules contained in s.5, LCA 1961. By rule 2, the value of the land acquired is to be taken to be the amount which it might be expected to realise if sold in the open market. That proposition is supplemented by s.14, LCA 1961 which prescribes assumptions which are to be made about the planning status of the land for the purpose of assessing its value.

 

11. For land acquired after 6 April 2012, ss.14, 17 and 18, LCA 1961, as inserted by the Localism Act 2011, apply to the assessment of compensation.

 

16. In the context of this appeal appropriate alternative development is therefore, in summary, development on the appellant’s land alone or on that land together with other land for which, on 16 March 2015, on the statutory assumptions but otherwise in the circumstances known to the market on that date, planning permission could reasonably have been expected to be granted on an application determined on or after that date. The effect of the statutory assumptions is that when considering what planning permission would have been likely to be granted, the bypass scheme must be assumed to have been cancelled on 9 August 2012, the date it was first launched, and it must be assumed that no action was taken by the Council wholly or mainly for the purposes of the scheme.

 

17. Either of the parties concerned in a compulsory acquisition may apply to the local planning authority under s.17, LCA 1961 for a CAAD. The local planning authority must issue a certificate identifying each description of development that, in its opinion, is appropriate alternative development in relation to the acquisition concerned (a “positive” certificate), or stating that there is no such development (a “negative” certificate).

 

19. On an appeal to the Tribunal against a CAAD under s.18, LCA 1961 the Tribunal does not review the decision of the local planning authority, but is required to proceed as if the application for a certificate had been made to it, and must, as it considers appropriate, either confirm or vary the certificate, or cancel it and issue a different certificate in its place (s.18(2)).

 

20. In Porter v Secretary of State [1996] 3 All ER 693, 703-704 Stuart-Smith LJ said that the question whether a planning permission could reasonably have been expected to be granted is to be determined on the balance of probabilities in the light of all the evidence.

 

21…… At that time the right of appeal against the grant or refusal of a s.17 certificate lay to the Secretary of State, whose planning inspector would exercise:

“what is essentially a judicial function, to determine whether planning permission could reasonably have been expected to be granted. The determination to be made in such circumstances, clearly, is not as to whether the planning authority could reasonably have been expected to grant permission but whether it would have been reasonable for planning permission to be granted.”

 

22…… It follows that, if at the statutory valuation date the County Council’s officers and members had a particular understanding of the meaning of a relevant planning policy, the Tribunal is not required to adopt that understanding or to interpret the policy in the same way, but must decide for itself what the policy means, and apply it correctly.