Judgments - Newell and Others (Original Appellants and Cross Respondents) v. Secretary of State for the Environment and Another (Original Respondents and Cross-Appellants)
Fletcher Estates (Harlescott) Ltd. (Original Appellants and Cross-Repondents) v. Secretary of State for the Environment and Another (Original Repondents and Cross-Appellants)

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    In the House of Lords the argument for the Regional Council, as noted by Lord Bridge, at p. 1344H, was unchanged:

    "Whilst [the] offers must be ignored, so runs the argument, the underlying requirement to devote these sites to fulfil the needs of public education remains and affords a complete answer to the claims for positive certificates."

It was in response to this argument, which he rejected, that Lord Bridge said, at p. 1345F-G:

    "The primary purpose of this provision, in my view, is to obviate the possibility that where, as in the usual case, urban land is allocated in the development plan for a necessary public purpose for which it will in due course need to be acquired, that provision of the plan can be relied on to deny the landowner a positive certificate. If the planning need to use land for a public purpose, which underlies a proposed compulsory acquisition, is not a sufficient ground to withhold a positive certificate where that need is recognised and provided for in the development plan, I do not see how the underlying planning need can ever be such a sufficient ground."

    No question was raised in the Grampian case about the wider effects of the proposal, which is the point to which Mr. Purchas's argument was directed. This is because, on the facts of that case, the issue about wider effects did not arise. It was not disputed that, if the underlying requirement for schools to be built on the sites were to be disregarded, the way was clear for the granting of positive certificates. The facts were simple. The sites would have formed part of the housing development in the surrounding area had they not been set aside for the schools. No changes had taken place prior to the relevant date which would have justified the issuing of negative certificates.

    Mr. Ouseley made it clear that his argument was a different one from that which had been presented for the Regional Council in Grampian. As he pointed out, his argument was entirely consistent with the decision in that case. He accepted that section 17(4) required the local planning authority to disregard not only the notice of the making of the compulsory purchase order but also the purpose which underlay the need for the land to be acquired for public purposes. The key issue in the present case to which he directed his argument was as to the wider effects of the assumption directed by section 17(4) on the facts of this case, which did not arise for consideration in Grampian.

Section 17(4)

    It is necessary in these circumstances to examine the wording of section 17(4) more closely in order to see whether the assumption which it directs can accommodate the wider effects for which Mr Purchas contended on behalf of the landowners.

    The critical words in the subsection to which attention must be directed are to be found in the phrase "if it were not proposed to be acquired." Those words must be examined in the light of the agreed fact that the relevant date, as at which the local planning authority is required by the subsection to issue its opinion regarding the grant of planning permission, is the date of the section 22(2)(a) notice. The language is, as Buxton L.J. observed [1999] Q.B. 1144, 1155F, not of the past but of the present conditional. The assumption which has to be made is that the land is not "proposed to be acquired" at the relevant date. The words "proposed to be acquired" are given a particular meaning by the statute. They appear in section 17(1) which identifies the time when the parties may apply for a certificate of alternative development, and they appear again in section 17(3) which describes the contents of the application for a certificate. The circumstances in which an interest in land shall be taken to be an interest proposed to be acquired are defined in section 22(2). It is by reference to the circumstances defined in section 22(2) that the relevant date for the determination of the issue about planning permission is identified. The effect of that subsection is that an interest in land cannot be taken to be an interest proposed to be acquired for the purposes of section 17 until one or other of the circumstances which it describes has occurred.

    The position appears therefore to be quite straightforward upon a consideration of the ordinary meaning of the words used in the statute. The assumption which the local planning authority must make relates to the situation as at the relevant date. The scheme for which the land is proposed to be acquired, together with the underlying proposal which may appear in any of the planning documents, must be assumed on that date to have been cancelled. No assumption has to be made as to may or may not have happened in the past.

Wider considerations

This conclusion as to the meaning of the words used in section 17(4) is consistent with the nature of the exercise which the local planning authority is required to perform. The system of planning control which requires planning permission to be obtained for the development of land brings into account a variety of facts and circumstances. Factors such as predictions of population growth and the availability of suitable land for development affect the need for more land to be released for housing in the area. These factors need to be re-assessed at regular intervals. A need which was identified ten or five years ago may have disappeared. The predicted growth on which it was based may have been reduced. The need may have been fully met by the building of the required number of houses in the given area. Or other factors may have changed, leading to the conclusion that the need must be met elsewhere. It is one thing to examine these factors, on the assumption that the proposal has been cancelled on the relevant date, in the light of existing circumstances. It is quite another to look back into the past and to try to reconstruct the planning history of the area on the assumption that the proposal had never come into existence at all. The further back in time one goes, the more likely it is that one assumption as to what would have happened must follow on another and the more difficult it is likely to be to reach a conclusion in which anybody can have confidence.

    In Jelson v. Minister of Housing and Local Government [1970] 1 Q.B. 243, where a proposed ring road had been cancelled owing to the construction of a motorway, the landowners applied for certificates of appropriate alternative development. The Minister confirmed the negative certificates which had been issued by the local planning authority. It was contended that the question whether planning permission might reasonably have been expected to be granted should be considered not as at the date of the section 22(2)(a) notice but as at a date before there had been any proposal for the strip of land to be used for a ring road. The landowners' appeals were dismissed on the ground that the local planning authority must determine the question of planning permission as at the date of the notice, in the circumstances then existing, and not by looking at events in the past. Lord Denning M.R. and Sachs L.J. saw the question as one of construction. They reached their conclusion by examining the meaning of the words used in section 17(4). But Phillimore L.J. added these observations, at p. 255C:

    "An important factor is that, apart from the question of construction, once you start looking back, the whole exercise becomes hopelessly uncertain. Did it all result from the designation of this strip as required for the ring road? How far was the state of the land due to the appellants' own action in building right up to the strip? Could they have avoided loss by serving notice to purchase in 1959 when the provisions of the Act of 1961 were first [enacted]? Have they really suffered any loss, or did they pay for the strip on the basis that it was blighted land? At any rate, when they acquired it they knew this to be the case. It seems to me that to look back beyond the date of the deemed notice to treat would open up a considerable filed of guesswork which would often make it impossible to give firm advice to any member of the public as to his rights. Accordingly, both as a matter of construction and on wider grounds, I would dismiss these appeals."

    Some of Phillimore L.J.'s observations in that passage relate to issues which are for consideration by the Lands Tribunal and not by the local planning authority. None of his questions as to the actions of the landowners have been raised in the present case. But there is much force in his point that once one starts looking back in time the exercise becomes clouded in uncertainty. The questions which are likely to arise will be complex and difficult. They will involve matters of evidence as to past events, the assessment of which is likely to lie outside the expertise of the local planning authority. Its normal function is to examine planning issues in the light of existing circumstances. The fact that applications for certificates of appropriate alternative development are made to the local planning authority lies at the heart of the matter. It supports the view that the determination as to the contents of the certificate should be arrived at by applying ordinary planning principles to the existing circumstances, not by assessing what may or may not have happened in the past.

    The question which the local planning authority, and in his turn the Secretary of State for the Environment, had to answer in this case was therefore a relatively simple one. It was capable of being determined, on the assumption that the proposal had been cancelled on the relevant date, in the light of the circumstances existing at that date and by the application of ordinary planning principles. The question was whether reasons existed for the refusal of planning permission which were quite independent of any scheme for the acquisition of the land for use for the purposes of the proposed by-pass: see per Lord Bridge in Grampian Regional Council v. Secretary of State for Scotland at p. 1346F.

    Lord Bridge said in Grampian at p. 1345G-H, that the overriding consideration which impelled him to reject the argument for the appellants in that case was that it would, if accepted, defeat the essential purpose of the procedure for obtaining certificates of appropriate alternative development as part of the overall scheme of the Act which was to secure the payment of fair compensation to landowners who were being compulsorily expropriated. The flaw which he observed in the appellants' argument was that to allow reliance on the underlying public requirement to determine the question would lead to the issue of a negative certificate in every case. This purposive approach to the words used in section 17(4) led inevitably to a rejection of the argument advanced by the acquiring authority that, while the acquisition itself must be discounted, the underlying proposal should not be. The position which Mr. Ouseley has adopted in the present case removes that difficulty. The assumption, which he accepts, that the underlying proposal must be taken to have been cancelled on the relevant date, as well as the section 22(2)(a) notice which gave effect to it, meets the objection that the cancellation approach will always lead to the issue of a negative certificate. On his approach, the scheme for the payment of fair compensation can be put into effect in a way which will reflect the development value of the land at the relevant date independently of any scheme for the proposed by-pass.

    I can find nothing in the overall scheme of the Act which requires the question whether planning permission would have been granted for any classes of alternative development to be determined by reference to events which may or may not have happened in the past if the proposal had not come into existence. It may be, as Mr. Ouseley suggested, that these wider issues can be raised under section 9 of the Act when the amount of the compensation which is to be paid for land which is to be taken compulsorily is being assessed by the Lands Tribunal: see Jelson Ltd. v. Blaby District Council [1977] 1 W.L.R. 1020, in which Jelsons were held to be entitled to the full economic value of the land which had been taken from them disregarding the effects of the scheme under section 9 of the Act of 1961. But that is not a matter which your Lordships need to resolve in this case. I would hold that these wider issues are not relevant to the determination which the local planning authority must make as to the contents of a certificate of appropriate alternative development.

    I would dismiss these appeals.

LORD CLYDE

My Lords,

    I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hope of Craighead. I agree with it, and for the reasons he gives I too would dismiss the appeals.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

    I too agree that these appeals should be dismissed for the reasons given by my noble and learned friend Lord Hope of Craighead.

 
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