Kingsley v Highways Agency

Blight notice – Compensation – Section 17 of Land Compensation Act 1961 – Claimant landowner obtaining certificate of appropriate alternative development under section 17 – Certificate stating that planning permission for affordable housing or agricultural workers’ dwellings would have been granted subject to satisfying criteria in local plan policy – Whether such statement complying with section 17 – Whether grant of permission for such development to be assumed – Preliminary issue determined in favour of acquiring authority The claimant owned 31 acres of agricultural land in Cheshire that was affected by proposals for a new trunk road. An issue arose as to the amount of compensation to which the claimant was entitled pursuant to a blight notice that he had served on the acquiring authority, giving rise to a deemed compulsory purchase of the land. In that connection, the local planning authority issued a certificate of appropriate alternative development, under section 17 of the Land Compensation Act 1961, specifying the classes of development for which planning permission would have been granted in the absence of the blight.The certificate indicated that permission would have been granted for an equestrian centre and country club and further, in respect of part of the land, for residential development comprising affordable housing or agricultural workers’ dwellings “subject to satisfying the criteria” in certain local plan policies. One of those policies provided that permission for affordable housing in rural locations might exceptionally be granted if it met all the criteria set out therein, including that “the site is located in or adjoining an existing village and is of a scale and character appropriate to the location”.The matter of compensation was referred to the Upper Tribunal for determination. The tribunal refused a request by the acquiring authority for permission to apply for a further section 17 certificate specifying more limited development: see [2010] UKUT 309 (LC); [2011] 1 EGLR 151. The tribunal proceeded to determine a preliminary issue as to the effect of the existing section 17 notice in relation to affordable housing development. The authority contended that permission for such development should not be assumed since the land was not in a village, as defined in the local plan, and therefore failed to meet all the criteria of the relevant policy. The claimant argued that he was entitled to rely on an assumption that planning permission would have been granted for such development, since the certificate had been granted expressly in relation to the site. Decision: The preliminary issue was determined in favour of the acquiring authority.Although, in principle, effect should be given to the totality of the certificate, that document had to be construed in the light of the statutory provisions that gave rise to it. A certificate under section 17 had to specify the classes of development for which planning permission would have been granted, along with any conditions to which such a grant would have been subject. Where permission would only have been granted at a future time, it had to specify that future time. To the extent that the certificate indicated that a grant of planning permission for affordable housing and agricultural workers’ dwellings would have been subject to compliance with local plan policies, that certificate did not accord with section 17. The principal function of the local plan policies was to identify the development that might receive planning permission by specifying the criteria that needed to be satisfied before permission was granted. A statement that permission would have been granted “subject to” those policies necessarily implied that permission might or might not have been granted for such development, depending on whether the criteria were met. Therefore, the certificate did not state that planning permission would have been granted for those classes of development in the unqualified way that section 17 required. The statement should be treated as having no effect for the purposes of section 17. The result was that the development for which planning permission was to be assumed did not include residential uses.It was not possible to get round that problem by reading the criteria in the local plan policy as defining the class of development for which planning permission would have been granted. That did not accord with the way the term “class of development” was used in section 17 or in the planning legislation, namely as a category of development described by reference to generalised features. Nor could the criteria be treated as conditions subject to which the assumed planning permission would be granted. That would not accord with the way the criteria were treated in the certificate itself; moreover, conditions in the terms of the local plan criteria would not be valid in law. Nor could the criteria be construed as indicating that planning permission would have been granted at a future time when the site satisfied the requirement for location in or adjoining an existing village. The certificate did not purport to specify any time for the future grant of planning permission, and an event as nebulous as the time at which all the criteria in the local plan policy were met could not constitute the specification of a future time for the purposes of section 17(5).Robin Purchase QC (instructed by Dechert LLP) appeared for the claimant; James Maurici (instructed by the Treasury Solicitor) appeared for the acquiring authority. Sally Dobson, barrister