Porter and another v Secretary of State for Transport

Preliminary issue — Acquisition of claimants’ land — Issue of certificate of appropriate alternative development — Assessment of compensation for retained land — Whether certificate giving rise to issue estoppel before Lands Tribunal — Lands Tribunal finding that there was issue estoppel — Court of Appeal allowing appeal against that findingIn 1985 the Secretary of State for Transport proposed to construct a new highway to be part of the A435 trunk road, which would run to the east of Evesham and serve as a bypass to that town. The claimants owned an area of freehold land to the east of Evesham and the line of the proposed highway would pass across their land (known as “the yellow route”). A CPO was made of the land to be acquired and entry on to the claimants’ land was made in 1985. They claimed compensation for the value of the land taken (for the yellow route) and the diminution in the value of the land that they retained. It was necessary therefore to ascertain what planning permission (if any) enured for the benefit of the areas of land involved. An application was made to the local planning authority, Wychavon District Council, for a certificate of appropriate alternative development which the claimants contended would have been residential development. A nil certificate was issued and the plaintiffs appealed to the Secretary of State for the Environment. A certificate was issued by the Secretary of State under section 17 of the Land Compensation Act 1961, after a public inquiry, with residential development specified. The certificate was issued on the basis that, if the actual route had not been adopted, the bypass would have been constructed along a line suggested by the claimants (“the green route”) which would have formed the eastern boundary of the town’s development. They would therefore have been likely to have obtained planning permission up to that line. Their claim for compensation was then referred to the Lands Tribunal where the Secretary of State for Transport sought to reopen the issue of where, in the hypothetical case, the alternative route would have been built. The tribunal decided on a preliminary point that there could be issue estoppel and that the question could not be reargued: see [1995] 1 PLR 103. The Secretary of State for Transport appealed. Held The appeal was allowed. 1. An applicant for planning permission had no legal right to a grant of planning permission in the event that certain facts were established. Planning permission was a matter of discretion based upon consideration of policy and aesthetic opinion. 2. That was in contra-distinction to a decision of a court of law where a litigant had established as a matter of legal right that there should be a decision in his favour: see Thrasyvoulou v Secretary of State for the Environment [1990] 2 PLR 69. 3. The question of whether planning permission would have been granted in a hypothetical situation was of a similar nature to a decision whether it should have been granted in an actual situation involving questions of discretion policy and opinion. Accordingly, it could not give rise to an estoppel. 4. Further, it was not possible for an issue estoppel to arise in relation to some finding of fact, as in the instant case that the green route would have been the preferred route, which was necessary to the planning permission. 5. It was also a factor that a refusal of planning permission did not finally determine a matter because a fresh application could be made. While the grant of planning permission created rights, if those were allowed to lapse, the planning permission determined nothing. Malcolm Spence QC and Nicholas Nardecchia (instructed by Rooks Rider) appeared for the applicants; Michael Barnes QC and Christopher Katkowski (instructed by the Treasury Solicitor) appeared for the Secretary of State for Transport.