Boland and another v Bridgend County Borough Council

Compulsory purchase – Compensation – Land Compensation Act 1961 – Respondents’ land acquired under compulsory purchase order purposes of new school building – Respondents applying for certificate of appropriate alternative development under section 17 of 1961 Act — Whether planning permission would have been granted for housing development on assumption that school development cancelled – Appeal dismissed The respondents owned 0.655 hectares of arable land adjacent to Pen-y-fai Church in Wales Primary School, Heol Eglwys, Pen-y-fai, Bridgend, which the appellant local authority acquired under a compulsory purchase order and subsequent general vesting declaration. A new school had been built on land including the respondents’ land. The respondents were entitled to compensation, calculated in accordance with the provisions of the Land Compensation Act 1961. The appellants calculated compensation on the basis that, if the replacement school had not proceeded, the respondents’ land would have had no more than agricultural value. However, the respondents considered that, in those circumstances, the land would have had a higher value because they would have been granted planning permission for residential development; and they applied to the appellants under section 17 of the 1961 Act for a certificate to that effect. The 1961 Act required the appellants, when determining compensation, to disregard actual or prospective developments and to make certain “planning assumptions”. The planning officer issued a “negative certificate” under section 17(4)(b), indicating that planning permission would not have been granted for any development other than for educational facilities. The land had historically been outside the designated settlement boundary, and in countryside, where development was not permitted. Policy SC5(15) of the unitary development plan specifically allocated the land for the provision of improved educational facilities and the boundary had been modified to accommodate that use only. The appellants refused to grant a certificate in those terms, giving only a negative certificate that planning permission would not have been granted for any development other than for educational facilities for which the land had been acquired. The Upper Tribunal allowed the respondents’ appeal and varied the certificate to certify that, if the appellants had not proposed to use its compulsory purchase powers to acquire the southernmost 0.46 hectares of their land, planning permission would have been granted for residential development: [2016] EWHC 1772 (Admin); [2016] PLSCS 209. The appellants appealed contending that, if the planning officer was required to assume, when assessing damages, that policy SC5(15) was cancelled, then the relevant change in the boundary should also stand as cancelled, because the two were an equal part of the underlying proposal. Held: The appeal was dismissed. (1) In considering a section 17 application, a decision-maker had to proceed on the basis that the relevant scheme for development in the public interest was cancelled, so far as the land that was the subject of the proposed compensation assessment was concerned, at the date of the notice that it was proposed to acquire the land compulsorily. In this case, had the proposed scheme for the new, extended school been cancelled, an application under section 17 in respect of the respondents’ land alone would have had to disregard both the fact of acquisition and Policy SC5(15) which specifically allocated the land for use as an educational facility, and which had no function beyond the acquisition scheme. That was axiomatic. (2) In disregarding the scheme for the new school and the re-drawing of the boundary, the planning officer had taken the wrong approach. She should only have disregarded the local authority’s acquisition of the land and policy SC5(15). She had proceeded on the basis of the “no scheme assumption” whereas the UT had approached the matter on the correct “cancellation assumption”: Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 WLR 438; [2000] PLSCS 33 and JS Bloor (Wilmslow) Ltd v Homes and Communities Agency [2015] EWCA Civ 540; [2015] EGLR 49 followed (3) Other than policy SC5(15), there were no specific policies in the development plan that restricted the use of the land currently within the settlement boundary. Where land had been given a particular planning allocation as part of a development scheme which was subsequently cancelled, there might be a compelling argument for disregarding a settlement boundary modification if the policy allocating the site had no function beyond the scheme. However, there was nothing in the development plan which compels such a conclusion as a matter of law.  In the present case, the re-drawing of the boundary brought within the settlement an additional parcel of land which was not part of the school development and which could have undergone residential development under a different policy even if the school had not gone ahead. Importantly, the Upper Tribunal had focused upon the development plan itself; and noted that it did not contain any policies that restricted development in any part of the land “taken into” the settlement. In the circumstances, it was entitled to conclude that, as a matter of fact, the policy that re-drew the settlement boundary was not a part of the underlying scheme. Accordingly, the Upper Tribunal had not erred either in the approach it took or the conclusion it reached. Wayne Beglan and Tara O’Leary (instructed by Legal and Regulatory Services, Bridgend County Borough Council) appeared for the appellants; George Newsom (instructed by Thomas Simon Solicitors) appeared for the respondents. Eileen O’Grady, barrister Click here to read a transcript of Boland and another v Bridgend County Borough Council