Stayley Developments Ltd v Secretary of State for the Environment, Transport and the Regions
Mr George Bartlett QC, President, and Mr Paul Francis FRICS
Compensation for acquisition of land — Statutory planning assumptions — Planning permission for retained land — Whether section 14(2) to (4) of Land Compensation Act 1961 required permission to be taken into account — Certificate for development on land acquired — Whether certificate assumed development on retained land — Whether planning permission would have been granted for acquired and other land — Whether planning permission could reasonably have been anticipated after valuation date
The claimant was the owner of land on Ashton Moss, to the east of Manchester, that was used for market garden purposes. In 1993 planning permission was granted for the development of 167ha of land, including that of the claimant, on either side of the proposed route of an as yet unbuilt section of the M66 motorway. The permission was for industrial and other development, as well as for a new bypass running across the land. The acquiring authority subsequently acquired 7.81ha of the claimant’s land for the purposes of the motorway. Although the acquired land had been included in the planning application, the permission did not cover any development on that land. Notice to treat was served on 5 January 1996. In 1996 a certificate of alternative development was granted under section 17 of the Land Compensation Act 1961, in respect of the land acquired, for B1c, B2 and B8 development. The claimant claimed £12.66m for the value of the land acquired and for severance and injurious affection to the land retained. In respect of the diminution in value of the retained land, the claimant based its claim upon the assumption that, in the no-scheme world, planning permission would have been granted for the same development as that permitted in the scheme world. It relied upon the 1993 permission and the section 17 certificate as showing that development would have been permitted on the retained land. The acquiring authority contended that the 1993 planning permission was the result of the motorway and its junction, and that, in the no-scheme world, the land would have remained without planning permission. In addition to these contentions, the parties advanced planning evidence relating to suggested schemes to address the questions ordered to be heard by way of a preliminary issue: (a) what development would, in the no-scheme world, have been the subject of planning permission granted for the acquired and/or other neighbouring lands?; and (b) what development could reasonably have been anticipated to be the subject of planning permission to be granted for such land after the valuation date?
Held: Although the 1993 planning permission was in force at the date of the notice to treat, it did not grant planning permission for the land acquired and therefore the provisions of section 14(2) and (4) of the Land Compensation Act 1961 did not require it to be taken into account. Upon its proper construction, the section 17 certificate related to the development of the acquired land alone. Very little weight could be attached to the decision to grant the section 17 certificate as showing that, in the no-scheme world, planning permission would have been granted for development of the retained land. In relation to the suggested development schemes, the only development of the acquired or neighbouring land for which planning permission would have been granted in the no-scheme world would have been a frontage development. No planning permission for development upon such land could reasonably have been expected to be granted after the valuation date.
Compensation for acquisition of land — Statutory planning assumptions — Planning permission for retained land — Whether section 14(2) to (4) of Land Compensation Act 1961 required permission to be taken into account — Certificate for development on land acquired — Whether certificate assumed development on retained land — Whether planning permission would have been granted for acquired and other land — Whether planning permission could reasonably have been anticipated after valuation date
The claimant was the owner of land on Ashton Moss, to the east of Manchester, that was used for market garden purposes. In 1993 planning permission was granted for the development of 167ha of land, including that of the claimant, on either side of the proposed route of an as yet unbuilt section of the M66 motorway. The permission was for industrial and other development, as well as for a new bypass running across the land. The acquiring authority subsequently acquired 7.81ha of the claimant’s land for the purposes of the motorway. Although the acquired land had been included in the planning application, the permission did not cover any development on that land. Notice to treat was served on 5 January 1996. In 1996 a certificate of alternative development was granted under section 17 of the Land Compensation Act 1961, in respect of the land acquired, for B1c, B2 and B8 development. The claimant claimed £12.66m for the value of the land acquired and for severance and injurious affection to the land retained. In respect of the diminution in value of the retained land, the claimant based its claim upon the assumption that, in the no-scheme world, planning permission would have been granted for the same development as that permitted in the scheme world. It relied upon the 1993 permission and the section 17 certificate as showing that development would have been permitted on the retained land. The acquiring authority contended that the 1993 planning permission was the result of the motorway and its junction, and that, in the no-scheme world, the land would have remained without planning permission. In addition to these contentions, the parties advanced planning evidence relating to suggested schemes to address the questions ordered to be heard by way of a preliminary issue: (a) what development would, in the no-scheme world, have been the subject of planning permission granted for the acquired and/or other neighbouring lands?; and (b) what development could reasonably have been anticipated to be the subject of planning permission to be granted for such land after the valuation date?
Held: Although the 1993 planning permission was in force at the date of the notice to treat, it did not grant planning permission for the land acquired and therefore the provisions of section 14(2) and (4) of the Land Compensation Act 1961 did not require it to be taken into account. Upon its proper construction, the section 17 certificate related to the development of the acquired land alone. Very little weight could be attached to the decision to grant the section 17 certificate as showing that, in the no-scheme world, planning permission would have been granted for development of the retained land. In relation to the suggested development schemes, the only development of the acquired or neighbouring land for which planning permission would have been granted in the no-scheme world would have been a frontage development. No planning permission for development upon such land could reasonably have been expected to be granted after the valuation date.
The following cases are referred to in this report.
Abbey Homesteads Group Ltd v Secretary of State for Transport [1982] 2 EGLR 198; (1982) 263 EG 983 and 1095; 264 EG 59 and 151, LT
ADP&E Farmers v Department of Transport [1988] 1 EGLR 209; [1988] 18 EG 80; [1988] 19 EG 147; [1988] 20 EG 104
Cowen v Secretary of State for the Environment, Transport and the Regions (2000) 79 P&CR 457; [1999] 3 PLR 108; [2000] JPL 171
Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565, PC
Porter v Secretary of State for Transport [1996] 3 All ER 693; [1996] 2 EGLR 10; [1996] 35 EG 89; [1996] 1 PLR 111; [1996] RVR 195; [1997] JPL 635, CA; [1995] 2 EGLR 175; [1995] 33 EG 92; [1995] RVR 229 (LT)
Proberun Ltd v Secretary of State for the Environment [1990] 3 PLR 79; [1991] JPL 159; sub nom Medina Borough Council v Proberun Ltd (1991) 61 P&CR 77, CA
Sutton v Secretary of State for the Environment (1985) 50 P&CR 147; [1984] 1 EGLR 173; (1984) 270 EG 144; [1984] JPL 648
David Holgate QC and Alice Robinson (instructed by Taylor Joynson Garrett) appeared for the claimant; Robin Purchas QC and Meyric Lewis (instructed by the Treasury Solicitor) represented the acquiring authority.
The following is the judgment of the tribunal.
Introduction
This reference relates to a claim for compensation for the acquisition of land for the M66 motorway (Denton to Middleton section) on the east side of Manchester. This section, which is agreed to constitute the scheme for the purposes of assessing compensation, completes the orbital motorway around Manchester. In the vicinity of Ashton-under-Lyne, the motorway crosses Ashton Moss, an area of open land separating Ashon-under-Lyne from Droylsden to the west. There is a junction where the motorway crosses Manchester Road. The part of the Moss to which the present claim relates lies to the north of Manchester Road, and at the time of acquisition it was predominantly in market garden use. Some 7.81ha (19.3 acres) of this land was acquired, the motorway cutting a swath across the Moss.
The claim is for £12.66m. It relates principally to the value of the land acquired and the reduction in value, through severance and injurious affection, of the land retained. The claimant, Stayley Developments Ltd, was the beneficial owner at the time of notice of168 entry (5 January 1996), and it became the legal owner shortly afterwards. In 1993, after the statutory procedures for the motorway had been completed, planning permission was granted for the development of land, including that of the claimant’s predecessor, on either side of the motorway, for industrial and other development, including a new road, the Ashton Northern bypass, running across it. The total site area was 167ha (413 acres). In 1996 a section 17 certificate was issued in respect of the land acquired, specifying development for light industry (B1c), general industry (B2) and warehouse/distribution (B8), subject to conditions. The claimant says that, in the no-scheme world, planning permission would have been granted for the same development as that permitted in the scheme world, and its claim is based upon this assumption. The acquiring authority contend that the 1993 planning permission was the result of the motorway and its junction, and they say that, in the no-scheme world, the land would have remained without planning permission for development.
In order to resolve the issue of the planning assumptions to be made for the purposes of assessing compensation, we held a hearing to determine this as a preliminary issue. The evidence, seeking to establish what would have happened in the no-scheme world, was concerned principally with planning, highways, agricultural and marketing matters. It was extensive and detailed. For the claimant, Mr David Holgate QC and Miss Alice Robinson called: Mr Bernard Higginbotham FRICS; Mr Keith Cackett, the borough education officer of Tameside Metropolitan Borough Council; Mr Peter Skellern CEng MICE; Mr Thomas Worthington BSc (Hons) AgriSci MIBiol; Mr David Brooks BSc (Hons) ARICS; and Mr Craig Blatchford BSc (Hons) Dip Tp MRTPI. For the acquiring authority, Mr Robin Purchas QC and Mr Meyric Lewis called: Mr Colin Bell BA (Hons) MSc MRTPI; Mr John Steele BSc (Hons) MSc; Mr Michael Guest FRICS; and Mr Paul Corbett MEng CEng MICE MIHT.
The basic facts are not in dispute. Ashton Moss (AM) comprises an area of predominantly open agricultural/horticultural land that, together with Littlemoss (lying to the north) and the Medlock Valley, formed an open green area separating the built-up areas of East Manchester (including Droylsden and Audenshaw) from Ashton-under-Lyne in the east and Oldham in the north. The south-eastern corner of AM lies about half a mile (0.85km) to the east of Ashton-under-Lyne town centre. It is about 5.1 miles (8.2km) east of Manchester city centre. AM is bounded by the A635 Manchester Road to the south, the Stockport-Manchester (Victoria) freight railway line to the south east, Richmond Street to the east, the Manchester (Victoria) to Stalybridge railway line to the north and residential development to the west. It is within the green belt. An unmade track, Rayner Lane, over which there are private rights of way, crosses the Moss from east to west.
AM was a peat bog until the late 18th century, when the then owners, the Lancashire estates of Lords Stamford and Warrington, carried out extensive drainage works, creating a relatively flat area of agricultural land. Immediately prior to the second world war, AM was divided into small horticultural plots that were farmed to provide mainly salad crops. In 1959 the estate was divided into two moieties, in effect dividing AM along Rayner Lane. The area to the north of Rayner Lane became vested in the trustees of Lord Deramore’s Ashton-under-Lyne estate and forms no part of this reference. The area to the south of Rayner Lane (including the reference land and the retained land) was vested in the trustees of Mrs E Bissill’s marriage settlement fund (reversionary share). It is this land to which the claimant has succeeded.
By the 1980s, one of the farmers, Oldfield Bros (which traded as Moss Crop Farm Shop), had taken over a large number of the smaller plots and built up the largest holding, extending to about 120 acres (48.5ha). AA Gent & Sons was operating a retail garden centre, and most of the remaining land was used for sheep grazing, apart from areas acquired and operated by the BBC and the IBA for radio masts. Ashton cricket club lies in the north-east corner of AM, at the junction of Rayner Lane and Richmond Street.
The land to which this claim relates comprises the strip of 7.81ha (19.3 acres) that was acquired and adjoining land that has been severed. While the claimant had obtained vacant possession of large areas of the retained land by April 1996, the land occupied by Oldfield Bros and the garden centre operated by AA Gent remained let.
Immediately opposite the Rayner Lane/Richmond Street junction is a triangular area of open, undeveloped land, bounded to the north and south by the railway lines referred to above and forming part of a larger area that, following retail development proposals, has become known as Triangle Park. Snipe Retail Park, together with the ICL (Celestica) factory, lies on land that was formerly Snipe Colliery, immediately to the south of the section 17 land, on the opposite side of the A635 Manchester Road.
The land was acquired under the M66 Manchester Outer Ring Road (Denton to Middleton Section) Compulsory Purchase Order (No NW1) 1993. It is agreed that the scheme to be disregarded for the purposes of valuation, in accordance with the Pointe Gourde principle, is the Denton to Middleton section of the M66. It is therefore to be assumed that, in the no-scheme world, the south-east section of the M66 terminated at the Denton roundabout junction with the A637 (junction 1 of the M67) about 2.8 miles (4.5km) to the south of Ashton Moss. The nearest motorway access to the north would have been the southern end of the A627(M), approximately 6.8 miles (11km) away.
Statutory assumptions
The assumptions as to planning permission that are required by statute to be made in assessing compensation are contained in sections 14 and 15 of the Land Compensation Act 1961. Those statutory assumptions are ones that, under section 14(1), are required to be made in respect of the “relevant land”, a term that is defined by section 39(2) to mean the land acquired.
Section 14(2) provides that any planning permission that is to be assumed in accordance with section 15 is in addition to any planning permission that may be in force at the date of service of the notice to treat. Notice to treat was served on 5 May 1995, and, in a corrected form, on 5 January 1996. On those dates, the permission granted on appeal on 25 March 1993 was in force. That permission was for “commercial, industrial, leisure, agricultural and horticultural development on 167 acres of land at Ashton Moss and Littlemoss, Ashton-under-Lyne” in accordance with the submitted planning application. The relevant land was included within the application site, but it was not shown for any of the uses to which the application related — for the reason, of course, that it was the site of the proposed motorway. Mr Holgate accepted that the permission did not permit development of the relevant land. Nevertheless, he sought to argue that, under section 14(4), the permission was a “planning permission… in force” for the purposes of section 14(2), and should therefore be taken into account.
So far as material, section 14(4) provides:
For the purposes of any reference in this section, or in section 15 of this Act, to planning permission which is in force on the date of service of the notice to treat, it is immaterial whether the planning permission in question was granted —
…
(b) in respect of the land in question taken by itself or in respect of an area including that land…
or is planning permission which, in accordance with any direction or provision given or made by or under any enactment, is deemed to have been granted.
We cannot accept that the 1993 permission, which does not grant permission to develop any of the relevant land, is required, by section 14, to be taken into account. Sections 14 and 15 are concerned, in our judgment, only with the relevant land. The purpose of section 14(4)(b) is to make clear that planning permission for development of the relevant land is to be taken into account, notwithstanding that the permission relates to an area of which the relevant land is only a part. It does not require, or imply, that a permission that does not grant169 permission to develop any of the relevant land must be taken into account.
Section 15(1) provides:
In a case where —
(a) the relevant interest is to be acquired for purposes which involve the carrying out of proposals of the acquiring authority for development of the relevant land or part thereof, and
(b) on the date of service of the notice to treat there is not in force planning permission for that development,
it shall be assumed that planning permission would be granted, in respect of the relevant land or that part thereof, as the case may be, such as would permit development thereof in accordance with the proposals of the acquiring authority.
Thus, it is to be assumed in the present case that planning permission would be granted for a motorway on the relevant land.
Under section 15(5), where a section 17 certificate has been issued, it is to be assumed that any planning permission that, according to the certificate, would have been granted in respect of the relevant land would be so granted, but only subject to any conditions specified in the certificate. The section 17 certificate was in these terms:
Application Number: 95/P/0960/CAD
…Land at Ashton Moss, off Manchester Road, Ashton-under-Lyne.
The Council hereby certify for the purposes of section 17 of the Land Compensation Act 1961 that were the land not being acquired compulsory for the construction of a motorway, planning permission would have been granted for Light Industry (B1c), General Industry (B2), and Warehouse and Distribution (B8) subject to the following conditions:
and then are set out some 20 conditions.
Thus, compensation is to be assessed upon the assumption that planning permission would have been granted for that development on the land acquired.
The question arises, however: does the certificate relate to the development of the relevant land in isolation or as part of some wider development? Mr Holgate says it relates to both these alternatives. Mr Purchas treats it as relating to the relevant land alone. That a section 17 certificate may specify the development that would be carried out on the relevant land together with other land is, we believe, clear from the terms of the Act. In Sutton v Secretary of State for the Environment (1985) 50 P&CR 147*, McCullough J held that the Secretary of State had erred in concluding that, in granting a section 17 certificate, regard could not be had to the possibility of development on a site comprising the subject land and other land not in the ownership of the applicant: see his reasons at pp152-153.
* Editor’s note: Also reported at [1984] 1 EGLR 173
It necessarily follows from this, in our view, that if a section 17 certificate is granted in respect of development of the subject land as part of a wider development, the assumption must be, for the purposes of section 15(5), that planning permission would be granted for such wider development. Two points are to be noted. First, the section 17 certificate does not itself identify the land to which it relates, beyond saying that it is “Land at Ashton Moss, off Manchester Road”, and, second, it does not say that planning permission would have been granted for the development of the land together with other land. The land can only be identified by referring to the application. This was made by a letter dated 21 November 1995 from Mr Higginbotham. It said that application was made for a section 17 certificate:
as follows:
1. The land shown edged red on plan no 2575/153 would have received planning consent for:
(a) business and industrial use (B1c, B2 and B8); and/or
(b) an hotel and other leisure facilities;
immediately were it not to be compulsorily acquired for purposes of constructing the M66 for the reasons set out below; and/or
2. The land shown edged red would have received the benefit of planning consent for the above stated developments, together with the other development area in Ashton Moss on the 25th March 1993 were it not for the land proposed to be compulsorily acquired for the construction of the M66.
The significance of 25 March 1993 is that that was the date of the Secretary of State’s decision granting planning permission for the Ashton Moss development. Plan 2575/153 (which was stamped by the council with the date 22 November 1995 and marked with the reference number, which, in due course, appeared on the certificate) was entitled, “Plan to identify proposed development at Ashton Moss. Alternative indicative design (without stockpiles)”, and it showed the layout of the proposed development covering the whole of the area that had received planning permission in 1993. The area of the proposed M66 was edged red.
It is thus clear that the land to which the section 17 certificate relates is the land upon which the motorway is being constructed — a relatively narrow swathe of land running across Ashton Moss, with substantial areas of the Moss lying to east and west of it. What remains unclear from this reference to the application and the plan is whether the certificate was intended to be for the development of the relevant land alone (item 1 in the application) or development of the land together with other land. The reference in item 2 to “the other development area” would appear to be to the land to which the 1993 planning permission related — the same land as that shown on the application plan. However, the application letter, in setting out the reasons for items 1 and 2, asserted that, in the absence of the motorway, “wholly different boundary lines would have been fixed” for the development area, and the officer’s report to the committee drew attention to this assertion. It would be wrong, in the light of this, to treat the certificate as relating to the development of the relevant land together with the rest of the area granted permission in 1993, and no other area is identified as the one for which the “wholly different” boundary lines would have been fixed. Not only does the certificate itself not refer to any other area, but the 20 conditions do not tie the development of the application land to some wider area. In these circumstances, even though the concept of developing the motorway land by itself is unrealistic, the only possible construction of the certificate, in our judgment, is that it relates to development of that land alone.
Section 17 certificate and other land
As we have said, a section 17 certificate gives rise to an assumption that planning permission would be granted only for the purpose of assessing compensation in respect of the land acquired. Land that is said to be severed or injuriously affected, and in respect of which compensation is sought under section 7 of the Compulsory Purchase Act 1965, cannot be the subject of a section 17 application, nor can any other land that is not relevant land for the purposes of sections 14 and 15 of the 1961 Act. In fact, the application for the section 17 certificate in the present case related to land in two separate ownerships — that of the claimant’s that was being compulsorily acquired, and the land being acquired from Lord Deramore to the north of Rayner Lane — and the certificate granted relates to both areas of land. The acquiring authority does not contend that the certificate is a nullity on that account. It has accepted that it is not now open to it to challenge the lawfulness of the certificate.
For the claimant, Mr Holgate contends that no less weight should be given in this reference to that part of the certificate that relates to the land north of Rayner Lane than to the part that relates to the subject land. As far as the retained land of the claimant and Lord Deramore is concerned, he says that the officer’s report envisaged that the relevant land would be developed in conjunction with adjoining land. Mr Holgate says that strong weight should be attached to the view of the local planning authority, as evidenced by the grant of a certificate in the light of this report, that the relevant land would be developed along with adjoining land. He refers to Sutton v Secretary of State for the Environment (1985) 50 P&CR 147; ADP&E Farmers v Department of Transport [1988] 1 EGLR 209; and Abbey Homesteads Group Ltd v Secretary of State for Transport [1982] 2 EGLR 198.
Where a positive section 17 (or section 18) certificate has been issued upon the basis that the relevant land will be developed, or can170 only be developed, in conjunction with other land in the vicinity, no assumption arises as a matter of law that planning permission would be granted for such development of the other land. In Porter v Secretary of State for Transport [1995] 2 EGLR 175, this tribunal (Judge Marder QC, President) concluded that, in such circumstances, an issue estoppel arose so as to preclude the acquiring authority from reopening the issues of fact upon the basis of which a section 18 certificate had been granted, but the Court of Appeal ([1996] 3 All ER 693*) held that no estoppel could arise in such circumstances. Mr Holgate does not contend that we are required, as a matter of law, in the light of the basis upon which the section 17 certificate was granted, to make an assumption that planning permission would be granted for the development of the other land, but he says that “strong weight” should be attached to the view of the local planning authority, as evidenced by the decision to grant the certificate. In our judgment, however, once it is conceded that the matter is indeed one of weight, it is one that requires consideration in the light of all the evidence, and the weight to be attached to it must necessarily depend upon that.
* Editor’s note: Also reported at [1996] 2 EGLR 10
We do not think that the decision to grant a section 17 certificate in relation to the subject land constitutes any useful evidence that, in the no-scheme world, permission would have been forthcoming for the development of other parts of Ashton Moss. As far as our determination of this preliminary point is concerned, we have received substantial evidence, which we shall consider. In contrast, the council, in granting the certificate, did so in the light of an officer’s report that, considering the great complexity of the planning factors in the no-scheme world, was remarkably short and wholly lacking in analysis. The officer’s assessment was contained in a single sentence:
The Director considers that in the absence of the motorway this land would have been developed as a strategic business park, and that the uses proposed by the applicant are compatible with the policies of the Draft Unitary Development Plan, and the Secretary of State’s planning approval.
Not only was there lacking any sort of analysis of the planning factors that would have applied in the no-scheme world, but the only matters referred to — the draft unitary development plan and the Secretary of State’s planning approval — were creatures of the scheme world, and not of the no-scheme world. The report referred to the contention in the application that, in the no-scheme world, the boundaries of the business park would have been different. It expressed no disagreement with that view, and made no suggestion as to what the different boundaries would have been. In the circumstances, we find ourselves unable to place any weight at all upon the officer’s views and the committee’s decision for the purpose of determining what planning permission ought to be assumed for the retained land in the no-scheme world.
As we say later, we believe that, in the light of this and in the light of the superficiality of the consideration given by the local planning authority to the section 17 application, we think that very little weight should be attached to it.
Preliminary issue
The terms of the preliminary issue require us to determine, as at the valuation date: what development would, in the no-scheme world, have been the subject of planning permission granted for the reference land and other neighbouring land; and what development could reasonably have been anticipated to be the subject of planning permission to be granted for such land after the valuation date.
In his closing submissions, Mr Holgate said that we should go further and express a view on the probability that planning permission would (in the case of (a)) have been granted, or (in the case of (b)) be granted. The basis of this submission was the judgment of Stuart-Smith LJ in Porter v Secretary of State for Transport [1996] 3 All ER 693. That was the case in which the Court of Appeal held that a decision issuing a section 18 certificate specifying residential development did not create an issue estoppel in relation to the question of whether planning permission for residential development could have been expected on adjoining land. The court concluded that the issue determined by the Secretary of State on the section 18 appeal was not the same as that which the Lands Tribunal had to determine in respect of the adjoining land. The distinction was that the Secretary of State had to determine, upon the balance of probability, whether planning permission would have been granted (ie whether the chances were over 50%), and, if he concluded that it would have been, the Act created a statutory assumption of certainty that the permission would be granted: whereas the Lands Tribunal, in relation to the other land, had to assess the extent of the chance of planning permission being granted. Stuart Smith LJ said at p704D-F:
Where a court or tribunal has to decide what would have happened in a hypothetical situation which does not exist, it usually has to approach the matter on the basis of assessing what were the chances or prospect of it happening. The chance may be almost a certainty at one end to a mere speculative hope at the other. The value will depend on how good this chance is. Where, however, the court or tribunal has to decide what in fact has happened as an historical fact, it does so on balance of probability; and once it decides that it is more probable than not, then the fact is found and is established as a certainty. This distinction is well illustrated by Davies v Taylor [1972] 3 All ER 836, [1974] AC 207 and Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 4 All ER 907, [1995] 1 WLR 1602.
It would be unnecessary for the Secretary of State to evaluate the chance of the eastern route being the preferred alternative route in the event that the actual route was not chosen, provided it was more than 50%; but the Lands Tribunal would be concerned in assessing value to evaluate the chances of this happening more precisely.
Mr Holgate said that since, in the light of Porter, we shall have to address the degree of probability of planning permission being granted when we consider the quantum of compensation at the substantive hearing, we should do so at this stage, since we have the evidence to enable us to express conclusions upon the matter, and it would assist the parties, and the process generally, were we to do so. Mr Purchas says that, the terms of the preliminary issue being agreed, we should simply address ourselves to that.
It seems to us that in deciding whether planning permission would have been granted or could have been expected, we are performing different exercises in relation to each of the limbs of the preliminary issue. In (a) — whether planning permission would have been granted at the valuation date — we are concerned precisely with the answer to that question. In (b), upon the other hand — whether, as at the valuation date, planning permission could reasonably have been anticipated — it seems to us that we are being asked to address the facts that bear upon hope value, and hope value must depend upon the degree of probability of planning permission being granted. Strictly, it would seem that what matters there is not our view of what the prospects were of achieving planning permission, but what the market (or the hypothetical vendor and purchaser) would have thought that the prospects were.
We doubt whether the degree of probability in relation to (a) is a matter that can properly affect a valuation. If that is what Stuart-Smith LJ was suggesting in the passage we have quoted, it was not a view with which the other two lords justices, Peter Gibson and Thorpe, associated themselves, and we would not feel bound by it. But there is no need for us to decide the point at this stage. We can, in the light of the evidence we have heard, give our conclusion on limb (a), and say what, in our view, the probability was that planning permission would have been granted by the valuation date. If the claimant wishes to argue at the substantive hearing that value depends upon the degree of probability we have found, it can do so, and we will consider the contentions. On (b), we can similarly express a conclusion on what, in our view, the prospects — seen at the valuation date — were for obtaining planning permission in the future. It may be that the conclusion we express on (b) will be adopted by the parties as the view that the hypothetical vendor and purchaser would have adopted in their negotiations, but that, again, is a matter upon which the parties may wish to address argument at the substantive hearing.171
Evidence — claimant
Development
Mr Bernard Charles Higginbotham, a partner in Cordingleys, chartered surveyors, of Ashton-under-Lyne, has over 35 years’ experience in the profession, and manages his firm’s building design, project management, planning and large commercial valuation activities. His involvement with the development proposals for Ashton Moss commenced in 1977, and he has been involved in valuations, development appraisals, planning, and design and layout considerations relating to a number of significant developments within the vicinity of AM, including the Celestica (formerly ICL) premises and Moorlite Electrical Factory at Ashton-under-Lyne, the Snipe Colliery redevelopment (Snipe) and the Stables residential development to the immediate north-west of AM. Mr Higginbotham has dealt with the planning process on AM in the scheme world, including production of designs and site layouts, and is currently joint project manager for the AM development, together with a representative of AMEC Developments, the claimant’s development partner.
Mr Higginbotham described the layout, phasing and anticipated development process for a major employment development of AM that would, in his view, have occurred in the no-scheme world (scheme 1). He also considered alternative schemes: scheme 2, involving the development of land on the frontage to, and with improved access from, the A635 Manchester Road (in conjunction with the Snipe retail development); scheme 3, development of the section 17 land, together with the Lord Deramore section 17 land; and scheme 4, an extension of scheme 3, to include land to the east, extending as far as Richmond Street. This step-by-step approach, leading to scheme 4, which would have created the elements for a key employment site, demonstrated, he said, the advantages of scheme 1, and why that would have been the option that would have achieved permission.
In its final form, Mr Higginbotham’s scheme 1 comprised:
Sq m
Sq ft
B1(c) B2 – Light/heavy industry
82,725
890,450
B8 – Distribution
14,260
153,500
Car dealerships
96,985
1,043,950
3,679
39,600
Public house
682
7,341
Leisure
10,722
115,412
3 x fast food outlets
660
7,104
2,665
28,686
90-bedroom hotel
115,393
1,242,093
The development would also include a golf course and driving range, and the relocation of the garden centres and nurseries. Peat extracted from the area of the built development would be spread on the golf course land. Overall, the development produced a plot coverage of 28.9ha (71.4 acres), or 33.5% of the total land area of the scheme 1 site (213 acres). It was thus, said Mr Higginbotham, a low-density development, and it would be complemented by a significant landscaping scheme. In terms of content, it would be very similar to what had achieved planning permission in the scheme world.
In planning scenario 1 (planning permission obtained by the end of 1991), the enabling works would have commenced in 1993 and the development itself in 1994. The site would have been developed in nine phases over a 10-year period. The timing of each phase was flexible and would be determined by market demand.
Mr Higginbotham said his first consideration in developing his scheme 1 proposals was the appropriate revised green-belt boundary, the whole of the development area (including the section 17 land) being within the green belt. The most logical and uncontroversial new southern boundary would be the line of Rayner Lane, and he had also shown the Light Rapid Transport System — Metrolink (LRT) line running just to the south, thus forming a natural cut-off point from the remaining green-belt land to the north (which would incorporate the golf course and driving range, relocated garden centres and nurseries) running up to the residential developments to the west and the railway line to the north. The “hard-built” area cut through by the Ashton Northern bypass (ANB), which was planned to run centrally through the site, would thus all be to the south of Rayner Lane and the LRT. The LRT would, in this no-scheme world proposal, be better sited, away from the ANB, than had turned out to be the case in the scheme world.
Access would be from the ANB, which would connect with the A635 Manchester Road to the south and would eventually connect with phase 2 of the ANB (in conjunction with the Triangle Park retail development) at the north-east corner of the site. There would be secondary access to some of the plots from the Birch Street feeder to the east. In addition to the industrial units, which would range in size from 5,000 sq ft to 120,000 sq ft, the two car dealerships and the fast-food outlets would be located at the main junction with Manchester Road, and the hotel would be at the junction of the Birch Street feeder with Manchester Road. These retail and hotel uses would have paid for the new junctions, and it was Mr Higginbotham’s view that the car dealerships, public house and fast-food units would have been constructed at an early stage in the development process.
Mr Higginbotham said that the scheme 1 proposals would have created a strategic employment site in accordance with the parameters laid down by the Association of Greater Manchester Councils (AGMA), and the regenerative, social and economic benefits that the development would bring to the area, including new employment, would provide the very special circumstances needed to overcome the green-belt policy objections. The creation of the ANB from the A635 Manchester Road to Oldham Road in conjunction with the Triangle Park development, at no cost to the public purse, would complement the Ashton Southern bypass. The Birch Street feeder would give pedestrian access to the western end of Ashton-under-Lyne, and the LRT, together with provision of bus routes along the ANB, would allow excellent communications.
As to the enabling works, it would be necessary to excavate and dispose of up to 7m depth of peat on AM (approximately 1,400,000m2). About 675,000m2 would be sold in the market over the 10-year development period, and the rest would provide a capping for the golf course. The peat would be replaced by 2,200,000m2 of infill material. The Snipe land that had been taken for the motorway construction would, in the no-scheme world, have formed part of an enlarged Snipe retail development, and an extended ICL (Celestica) factory. The spoil from this, and from the remainder of the Snipe slagheap (which would also result in the removal of an eyesore) would have contributed up to 800,000m2 of fill, the rest coming from the market. Mr Higginbotham said that as the Snipe land was owned by the claimant, the spoil would have been available at no cost, other than the required washing and other decontamination processes, and transport. The enabling works would have been self-financing, due to the royalties paid by external contractors for tipping the balance of the spoil not available from Snipe and the sale of peat. The Snipe Retail Park development would have been undertaken jointly with the scheme 1 development, with resultant environmental and planning advantages, together with flexibility, availability of materials and reduced timescales.
The plans showing Mr Higginbotham’s schemes 2 and 3, the redevelopment and rationalisation of the frontage land to Manchester Road and the development of the section 17 land in isolation, included an additional triangular area of land to the east. It was anticipated, he said, at the time the section 17 application was made, that that land would be required for temporary use under licence in connection with the motorway scheme. As it transpired, due to the reconfiguration of slip roads in the scheme world, the land was permanently required. This area of land was necessary to provide access, in the scheme 3 proposal, for three B2 units, from Katherine Street to the proposed plot 3. Mr Higginbotham contended that, in the no-scheme world, planning permission for B1c, B2 and B8 uses would have been obtained over that land.
Scheme 2 assumed the extended Snipe development. An improved junction with Manchester Road would be provided, giving access to the Snipe and to the rationalised frontages on the north side that would incorporate the relocated AA Gent’s and Oldfield’s nurseries/garden centres and an hotel. Even if the extended Snipe development had not172 taken place, it was Mr Higginbotham’s opinion that the rationalisation of the road frontage land would have occurred in any event.
Scheme 3, the development of the section 17 land (including the Lord Deramore section 17 land to the north of Rayner Lane), was, Mr Higginbotham said, a viable alternative, and he produced a plan showing the construction of three B2 units, for which, he said, there was a demand at the relevant time. The two units to the north would be accessed off Rayner Lane, and the southern, smaller unit would have its own access off an extension of Katherine Street. He also produced two alternative proposals for B1c and B8 uses. The first comprised 10 units totalling 35,302m2 (380,000 sq ft) with the principal access being from an extension of the access road over the redeveloped frontage land (scheme 2), with emergency access points over Rayner Lane and Katherine Street. The second alternative, which incorporated the former Oakdale School and had access off the Manchester Road opposite Birch Street, showed 11 units, totalling 40,877m2 (440,000 sq ft). Both these alternative schemes included a golf course and driving range to the north of the scheme 2 development.
With planning permission for B1c, B2 and B8 development of the section 17 land, the remaining land bounded by the railway line and Richmond Street to the east, which would be severed from the rest of the green belt by the section 17 land, would serve no useful green-belt purpose, Mr Higginbotham said, and there would be overriding reasons why this land should also be developed, thus creating, with the scheme 3 land, a strategic employment site. This was scheme 4.
Oakdale School
Mr Keith Jesse Cackett is borough education officer for Tameside Metropolitan Borough Council. During the relevant period (from 1988 to 1999), he was assistant director of education (resources), having responsibility for property issues and the education department’s capital programme, including repairs and maintenance of buildings and relocations. He said in his witness statement that in the no-scheme world, when there was no question of Oakdale special needs school being compulsorily purchased, the department would have been prepared to negotiate with a prospective developer of AM. If the claimant had wanted to purchase an access through the school playing fields (which were used by another school, but belonged to the same authority), his department would have been keen to treat, because the money from the sale could have been used towards the school’s relocation — which was in line with the council’s policy of integrated education. If the developer had wanted the whole school site (in accordance with one of Mr Higginbotham’s schemes), Mr Cackett thought the council would have negotiated a sale, the funds from which would support the relocation option that was desirable to accord with the adopted special needs policy. In the scheme world, Mr Cackett said, this was precisely what had happened, and the school was now relocated to a site shared with a mainstream school.
Highways
Mr Peter Skellern is a chartered engineer with over 30 years’ experience in highway engineering, and is a divisional associate with Mouchel Consulting Ltd, international civil engineers. Both Mr Skellern and Mouchel have been involved with AM for 10 years, and the company was responsible for the design of the M66 Outer Manchester Ring Road (Denton to Middleton Section) (the scheme) for the Highways Agency. Mr Skellern gave evidence, on behalf of the claimant, to the 1992 AM public inquiry and to the AM Side Roads Order inquiry in 1995.
His evidence set out to prove that in the no-scheme world, AM would still have good access to the primary route network (PRN) and motorways, would be readily accessible on foot and by bicycle, and, as agreed with Mr Corbett, would be well served by public transport. It would also be capable of being served by a new road infrastructure without imposing unacceptable capacity demands on surrounding roads.
The construction of the ANB, which Mr Skellern accepted was primarily designed to serve the development, with the “bypass” element being of secondary importance, would give direct access to the PRN both east/west via the A635/A6018 and north/south along the corridor formed by the A627 and A6017. The M62 and other main motorway routes to the north would be accessed over the A627 via Oldham, part of it being dualled and part-grade separated, and thence by the A627M, which starts about 3.6 miles (6km) north of AM. The “DevTrips” model, which had been used to assess the impact of the scheme on local traffic flows, would, Mr Skellern said, be equally applicable in the no-scheme world, and had therefore been used as the basis for assessing traffic flows for the schemes proposed by Mr Higginbotham in the no-scheme world.
The figures that the models produced indicated that the increased traffic flows onto the PRN were insufficient to create the need for anything other than minor infrastructure works, and were certainly not grounds for the refusal of planning permission for any of the proposed developments in the no-scheme world on highways grounds. While he accepted that access to the motorway network would be less convenient in the no-scheme world, journey times would still be acceptable in terms of the requirements for a strategic employment site.
It had been agreed that public transport access (and access on foot and by bicycle) was also good, and therefore Mr Skellern considered that in the no-scheme world, the development proposals would meet the transport policy criteria of RPG 4 and the Greater Manchester structure plan. The proposed LRT route through AM, he said, would have been attractive to GMPTE, as it would have run off-line, therefore being cheaper in construction terms than on-street running, and would also have resulted in an almost ideal connection to Wellington Street. A station serving the development could also have been located on AM.
As to any upgrading that might be required in the no-scheme world to the primary roads providing access to AM, Mr Skellern was of the view that, without the motorway, there would have been a need to carry out some improvements, such as stopping up some minor side roads, providing bus lay-bys and improving some major junctions by providing additional turn, or ghost, lanes. These improvements, which were not necessary in the scheme world, would have been needed whether or not AM had been developed, to accommodate the traffic demands made upon them as classified primary routes. Grant aid would, he said, have been available, and the improvements would not have needed the compulsory acquisition of much property.
Therefore, the improvements that would have happened in the natural course of events would have been more than sufficient to cater for the limited additional traffic generated by the AM development. Mr Skellern accepted Mr Corbett’s assumption that traffic conditions today are little different from those in the early 1990s in peak hour periods, due to the amount of congestion occurring during these times, but he said that the DoE’s Tempro database showed that daily traffic flows between 1991 and 1999 generally were likely to have increased by 13.5% pa. This was due to increases in inter-peak traffic, the peak-hour flows already being saturated. Nevertheless, he said he did not agree with Mr Corbett’s contention that there was traffic congestion “throughout the working day”, his own surveys indicating generally steady flows.
As all town and city centres suffered congestion on major routes at peak times, Mr Skellern did not think, as Mr Corbett did, that the congestion that undoubtedly did occur in the vicinity at peak times would be used by the planning authority as an excuse to refuse the development on highways grounds. Mr Skellern did not agree with Mr Corbett’s analysis of the likely traffic distribution from the development on the north/south routes, his own findings suggesting that, of the 20% of traffic leaving the site to the south, the majority had dispersed within one mile, only about one-third remaining on the A6017 by that point, and only 5% expected to travel as far as the motorway. He said that this would be insignificant in additional traffic-generation terms. Of the northbound traffic, estimated by Mr Corbett at 28% of the development flow, only two-thirds was predicted to remain on the main route at one mile, one-third at the halfway point (to the motorway) and only 6% would actually reach the motorway. Again, these were increases that were not significant.
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As to the impact on Wellington Road of the main AM proposal, Mr Skellern said that his models predicted a flow of 1,171 vehicles per hour (vph), including development traffic on a two-way flow from and to the no-scheme world development, whereas the forecasts at the 1992 inquiry were for 1,850 vph at the evening peak, and permission had been granted upon that basis. There was, therefore, no justification in Mr Corbett’s contention that the increased traffic on Wellington Road caused by a no-scheme world development would be a ground for refusal on highway terms. In the scheme world, it was not, Mr Skellern said, a condition of the planning permission that was achieved that any additional works be undertaken to Wellington Road. Therefore, there was no reason to assume that any such conditions should be considered in the no-scheme world.
Mr Skellern said that he did not agree with Mr Bell’s contention that AM would not have been promoted as a strategic employment site because it did not meet the accessibility criteria in RPG 4. Kingswater Park, also promoted as an SES, was undoubtedly nearer to the southern section of the motorway network (being immediately adjacent to the Denton interchange), but it was much further from the northern motorways north of Oldham, and did not enjoy the same proximity to the town centre, and its associated excellent public transport provisions, as AM did. The requirement of RPG 4 was not that an SES should be in “close proximity” to motorways, but that it should have good access to the motorway system and to public transport. AM, Mr Skellern said, certainly met those criteria, as it was only 10 minutes driving time, via primary routes, to the southern motorway. Furthermore, in the scheme world, Kingswater Park had still not come forward, due to highway problems that were proving difficult to resolve. He said that there would be difficulties designing a satisfactory access to Kingswater Park in the no-scheme world from what would be the termination of the motorway at the Denton interchange.
Mr Higginbotham’s scheme 3, with B2 uses having access off Rayner Lane and off Katherine Street, was, in Mr Skellern’s view, feasible in highway terms. Rayner Lane could be made up to a minimum 6.1m carriageway, sufficient for two commercial vehicles to pass (although he accepted that there was one “pinch point” where the width reduced to 5.6m at its narrowest, and where two lorries could not pass.) However, as there were only two units being served, he did not consider that the volume of traffic would be sufficient for this to create a problem. Katherine Street was already serving Howarth Timber, and one additional industrial unit would not cause a significant increase in traffic sufficient to warrant refusal of planning permission on highway grounds.
The alternative scheme 3, for B1c and B8 uses, as proposed by Mr Higginbotham, would have needed better access than was available over Rayner Lane, but Mr Skellern said that the proposals for access from Manchester Road and the Birch Street feeder were feasible. He said that the carriageway standards adopted by Mr Higginbotham in his scheme 4 proposals were adequate for the volumes of traffic that such a development could be expected to generate. He also said that a satisfactory highway solution would have been available to allow improved access from the A635 to a major retail and industrial development of Snipe in conjunction with the development of the section 17 land.
Agriculture
Mr Thomas Ralph Worthington is a chartered biologist and a Fellow of the British Institute of Agricultural Consultants and the Institute of Professional Soil Scientists, and an Associate of the Institution of Agricultural Engineers. He is a director of Reading Agricultural Consultants Ltd (RAC), with whom he has worked for 27 years, and has specialist knowledge of soil survey and land classification work throughout England and Wales. He had presented evidence on behalf of the claimant to the AM public inquiry in 1992 in respect of agricultural land classification (ALC) and land uses.
Mr Worthington sought to show that, on the basis of MAFF’s October 1988 Agricultural Land Classification of England and Wales: Revised Guidelines and Criteria for Grading the Quality of Agricultural Land (ALC), “the Blue Book”, the agricultural land quality of the scheme 1 land was not “the best and most versatile”. It did not fall into category 3a. His view was that the land fell into the category 3b. PPG 7, issued in 1992, stated that little weight need normally be given to the loss of land of grades 3b, 4 and 5.
The agricultural experts had agreed that the limitation to soil quality (other than the general limitation to the site due to overall climatic conditions) is defined by three parameters: soil wetness class; field capacity days (FCDs); and topsoil texture. Mr Worthington said that, prior to the development of wetness class criteria, used for defining ALCs in the 1988 MAFF Blue Book, a more basic (or less scientific) approach had been used. It was this that had resulted in the majority of the relevant AM land being initially classed as Grade 2. Following the revisions that had been made to the system in 1976, he concluded that AM would have been defined as Grade 3c, this grade having been dropped in the 1988 reclassification.
The methods to be used in determining wetness class, following the introduction of this classification in 1988, included the collection of dipwell data to determine the level of wetness in the soil. According to the Blue Book, samples should be taken and analysed over a period of many years. MAFF had undertaken such sampling, but, in his view, it was inadequate, in that it had only been carried out over a period of 32 weeks and during a period that was drier than average. Also, the sampling did not take account of the wetness or waterlogging that can occur in peaty soils to a depth of over 20cm above the water table.
The FCD classification of AM showed, said Mr Worthington, that only 5ha of croppable land out of 160ha surveyed had FCDs of 225, whereas the remainder was 226 and above. Within the ALC, land with 225 FCDs and above is shown as being within wetness class V or VI, which, for peaty soils with no slowly permeable layer starting within 80cm depth, translates to Grade 5. It was agreed, however, that Grade 5 was inappropriate. Mr Worthington therefore suggested that, while borderline, any areas of land with 225 FCDs and above were in the wetter, and thus poorer, category. By contrast, Mr Steele had assumed that 225 was included within the better-quality category.
The wetness of the soil was, Mr Worthington said, but one factor in determining which was the correct category for AM. Another factor was the load-bearing capacity of the soil, which, especially after heavy rainfall, was poor, so that only lightweight agricultural machinery could be used for harvesting and sowing. This resulted in much work having to be done by hand, and, hence, higher costs. There were, moreover, significant periods of the year when harvesting was not possible, and there was also risk to crops through waterlogging. In summary, he concluded that the inspector at the 1992 inquiry had come to the correct conclusion in determining that the land at AM was not the best and most versatile.
Marketing
Mr David John Brooks is a chartered surveyor and a partner in King Sturge, international property consultants, based in Manchester, and head of the company’s industrial agency group. He has 21 years’ experience of the industrial property market in the North West. His evidence dealt with the anticipated demand for, and deliverability of, the AM development schemes in marketing terms. He considered whether, in the no-scheme world, AM would provide a strategic employment site within the criteria set out by AGMA and English Partnerships, what the demand would be and where it would come from, and how AM would have been developed, both in terms of timing and uses.
Whether one assumed Mr Higginbotham’s development scenario 1 (planning permission obtained at the end of 1991) or scenario 2 (planning permission January 1995), it was Mr Brooks’ opinion that it would take 12 to 18 months to obtain vacant possession of the whole of the site, and the enabling works, including extraction of peat and replacement with infill, would take a further 12 months. With construction works thus able to be commenced by, say, September 1993 or September 1996 respectively, he concluded that marketing would begin not more than 12 months beforehand.
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Mr Brooks had considered the qualification criteria for a strategic employment site in terms of site size, proximity to a major conurbation, labour availability, infrastructure and communications, grants, availability and deliverability and socio-economic and educational factors. He concluded that, in the no-scheme world, and despite the less immediate access to the motorway network, AM had a sufficient combination of all the relevant factors to satisfy the appropriate criteria.
Throughout the 1990s, the trend was for industrialists and distribution users to resource their new-build solutions by acquiring sites (becoming “direct investors”), thus having full control over their own developments, and, by acquiring sufficient land, to allow for future expansion. Mr Brooks had considered what had happened at Northbank Industrial Park, Irlam (three miles from junction 11 of the M60 and four miles from junction 21 of the M6). That site had, as with AM, not enjoyed immediate access to the motorway network, but had been successfully developed from 1990 to 1997 by North-West-based companies, and through overseas inward investment. Its success proved, he said, that there would have been be demand for a site such as AM. Whether or not AM was first offered to the market in 1993 or 1996 (when the market had substantially improved following the recession) mattered not, as AM would have been a long-term strategic investment decision, and the cyclical nature of the market would therefore be taken into account. Mr Brooks also referred to the Tameside Park development at Dukinfield, and the success that it had achieved in attracting relocating companies into bespoke units despite it not having the advantages of AM, and being predominately surrounded by residential areas.
Mr Brooks referred to a letter that ‘Inward’, the agency for investment into north-west England (part of the NW Development Agency), had sent to Tameside Metropolitan Borough Council in January 1991, indicating that there was a considerable demand for serviced sites both nationally and internationally, especially those where funding assistance was available. There had been a number of potential company relocations lost to the North West of England due to the lack of suitable available sites. In his view, AM had a number of characteristics and benefits missing from other potential strategic employment sites, including the fact that there would be no site assembly problems and that the claimant would be able to choose its development partner. The site had good access and infrastructure. It would provide the east Manchester conurbation with the opportunity to secure a high proportion of inward investment opportunities.
Demand, Mr Brooks said, would also emanate from the North West regional economy in general, previous sites not having been large enough, or of sufficient quality, to attract footloose companies wishing to move or expand. Local manufacturing companies wishing to expand and relocate to a convenient and attractive site, with good accessibility and public transport links, and with the added advantage of being able to retain their local workforce, would find AM an attractive proposition. Demand would also come from Manchester, Stockport and Oldham. The sites at Oldham Broadway, which was already well under way, and Bredbury Industrial Park, which, if the second (later) development scenario was taken, would have been almost completely developed, indicated the demand that was there. He pointed out that the average take-up at Oldham Broadway was 2.32ha pa, even during the recession, indicating that demand continued through those difficult times.
Taking the development proposals outlined by Mr Higginbotham in his plan 800, Mr Brooks said that in the no-scheme world there were opportunities for both speculative and bespoke schemes that would be more likely to appeal to industrial users than to distribution facilities (B8), which would be more appropriate in the scheme world, where access to the motorway was more or less immediate. He said that there were many manufacturing and service firms that would prefer to be away from motorways, especially if their businesses did not need direct and virtually adjacent access. This was because land values were noticeably less, and there was also less competition, in that the B8 users would not be in the market, since their main requirement was for good access to the national distribution network.
Planning
Mr Craig Warren Blatchford is a member of the Royal Town Planning Institute, with a degree and diploma in town planning. He is the director of planning at Colliers Erdman Lewis (now Colliers Conrad Ritblat Erdman), specialising in advice upon planning and economic factors regarding site development, and has acted as a planning consultant for the claimant and its joint development partner, AMEC, in respect of AM since 1997.
He set out the timetables that he considered would have been followed in respect of consideration and determination of planning applications for the development proposals in both planning scenario 1 (the claimant’s preferred option) — schemes (a) and (b) — and planning scenario 2. In planning scenario 1, three planning applications would have been submitted:
(a) an outline application for the development proposals as a whole, including the ANB (stage 1), but excluding the leisure element (scheme A);
(b) a full application for the ANB (stage 1); and
(c) an outline application for the inclusion of the leisure element, in substitution for employment floorspace (scheme B).
Applications (a) and (b) would have been submitted at the same time in January 1990, following a six-month pre-application discussion period (as in the scheme world), and would have included full supporting information. They would have been considered by the council’s planning committee in July 1990, which would have resolved to grant planning permission subject to conditions, and would have referred the application to the Secretary of State as a departure from the development plan. Alternatively, they could have been called in under section 77 of the Town and Country Planning Act 1990 in October 1990. Following a public local inquiry, which would have been held in spring 1991, the Secretary of State’s decision would have been issued in October 1991. This timescale was shorter than that that applied in the scheme world, as it would not have been necessary to consider the implications of the development proposals on the motorway scheme. Permission having been granted on (a) and (b), application (c) would have been made in November 1994 for consideration by the planning committee in March 1995, and would have received planning permission in accordance with the UDP.
Planning scenario 2 was the claimant’s alternative programme, and has three potential timetabling options, all of which assume AM would have been promoted by the council as a strategic site in the AGMA list, and as an employment site in the Tameside UDP. There would have been a single outline application for the development proposals, together with a full application for stage 1 of the ANB made in April/May 1993. The options take account of whether the applications would have been subject to an Article 14 direction, whether one might have been appealed and thence be subject to a section 78 inquiry or whether one of the applications might have been called in. In all cases, Mr Blatchford said, the grant of permission would have been made in January/February 1995 in conjunction with the inspector’s report into the UDP, confirming the designation of AM as an employment site.
In Mr Blatchford’s view, while the development south of Rayner Lane constituted inappropriate development in the green belt, in both scenario 1 and scenario 2 there were the very special circumstances needed to justify development. These revolved around the overwhelming need for a wide range of new employment and investment in the area to help overcome the severe social and economic problems in this hitherto run-down part of east Manchester. The regeneration opportunities of AM outweighed the benefits of retaining this part of the green belt. The proposed uses of the land to the north of Rayner Lane were considered acceptable in the scheme world, and Mr Blatchford thought there was no reason why those conclusions should be any different in the no-scheme world. Indeed, even if the land to the south of Rayner Lane were removed from the green belt, there would still be a significant finger of open and protected land remaining.
On planning policy, Mr Blatchford drew attention to the Strategic Guidance for Greater Manchester (RPG 4) published in December 1989, which, in providing the framework for the preparation of UDPs175 throughout Greater Manchester, placed considerable emphasis upon economic development and urban regeneration. He said that para 5 was of particular relevance to the proposals:
In consultation with the UDCS, adjoining local authorities and the private sector, Councils should identify a comprehensive range of development sites for manufacturing and service industries, and plan to tackle dereliction and the removal of other obstacles to business investment. In particular, they are invited jointly to identify opportunities in strategic locations for the provision or creation of major high amenity sites for high technology industry, preferably in existing urban areas and with good access to motorways and public transport. Such provisions should seek to exploit the presence within the conurbation of major higher educational institutions.
In his view, while AM’s location relative to the motorway network would be a consideration, it was but one of a number of criteria, expanded upon by AGMA, that would be taken into account. He did not think RPG 4 indicated the proximity of motorway access to be a critical factor, and, in any event, para 5 referred to “good”, rather than “direct” access.
Mr Blatchford said that AGMA had produced a set of criteria to assist in the selection of suitable special employment sites in 1989. In those early stages of site identification, AM was not included because the criteria excluded policy-constrained sites. In 1990 some revisions to the criteria were made, specifically relating to minimum site sizes and definitions of appropriate uses, but, again, policy-constrained sites were excluded. At this stage of the process, Tameside had identified four sites: Snipe Colliery, Denton Hall Farm, Audenshaw Estate (Kingswater Park) and Dewsnap Sidings.
The selection criteria were further revised (stage 3) in October 1990. As a result of these changes, an interim report was produced in January 1991 by the strategic planning and information group, in which Tameside identified three sites: Audenshaw (Kingswater Park), Ashton Moss and Denton Hall Farm. Snipe was removed, as planning consent had by then been granted for retail development, and Dewsnap was below the revised site size criteria. Following the interim report, an updated AGMA report was issued in May 1991, in which the number of potential sites had been reduced from 24 to 20 (including AM). The report stated that “all sites are capable of being accessed and are within a reasonable distance to a motorway junction”, and it also concluded that all the sites were suitable for B1 uses. Tameside’s sites were now down to two — Ashton Moss and Kingswater Park. Mr Blatchford said that four of the 20 sites were wholly or partly in the green belt.
Thus, he said, the conformity of AM with the AGMA criteria in the no-scheme world would, to all intents and purposes, have been the same as in the scheme world (except for the immediate proximity of a motorway junction). He had reviewed industrial and commercial land availability at the relevant times, and the competing AGMA sites. With Snipe having obtained planning permission for retail, Kingswater Park being a site for high-quality high-tech uses, and therefore complementary to, rather than in competition with, AM, Denton Hall Farm being remote, difficult to develop and suffering from contamination, and Dewsnap being too small, he concluded that AM would have been the only available strategic site to the east of Manchester suitable for the type of development proposed.
Mr Blatchford placed reliance upon the fact that Tameside had granted a section 17 certificate on the reference land, and it was obvious, he said, from the correspondence passing between Mr Higginbotham’s firm and the council, that an employment development for a business park comprising B1, B2 and B8 uses was envisaged on a wider area of land, of which the reference land formed part. Thus, while the certificate granted notional permission only on the reference land, it was his view that the application for it had been considered in the wider context. Indeed, the council had confirmed that AM would have been a key employment site in the no-scheme world on two further occasions.
As to the planning history of AM, the supporting statement to the 1978 proposal for the development of Snipe, together with a part of AM totalling 42ha (103 acres), of which 25ha (62 acres) was on AM land north of the A635, rehearsed the advantages of a combined approach. This would have been the same in the no-scheme world, and would have accelerated the delivery of AM as a special employment site. However, that application was refused on the grounds that it was premature (the route for the motorway having not yet been finalised), and the proposals would conflict with policies 8.5 and 8.12 of the Greater Manchester structure plan, in that the type of development did not fall within one of the categories of development for which an exception to established green-belt policies might be permitted. It was also contrary to the provisions of the Ashton-under-Lyne town map. He said that it was obvious that the council’s position changed in the late 1980s, this being evidenced by its support for the 1990 application, the inclusion of the site as a strategic one in the Tameside UDP and the AGMA list, and their later decision on the section 17 certificate.
An appeal against the 1978 refusal was withdrawn because, Mr Blatchford said, of the continuing uncertainty of the motorway route. In his view, the reasons for refusal would have been overcome had the appeal proceeded, as they were in relation to the 1993 proposals. In respect of those applications, the very special circumstances were accepted as justifying the release of the site from the green belt, and planning permission was granted. Mr Blatchford said that the planning permission that was granted for retail development on Triangle Park (over which the claimant had a controlling interest) would, in his opinion, have been granted in the no-scheme world. The scheme had no bearing upon the uses to which that site was to be put.
The three 1990 applications for AM related to: (1) main development for industry and commerce, leisure facilities, agriculture and horticulture on 166ha (412 acres) each side of the motorway; (2) golf centre, driving range, horticultural and leisure uses on 23.6ha (58 acres) north west of Rayner Lane; and (3) the ANB. Tameside’s planning and development services committee considered these on 31 January 1991, and they were recommended for approval despite the fact that it was acknowledged that the majority of the land was within the green belt. Applications 2 and 3 were withdrawn, with an amended ANB application being submitted later. Application 1 was called in by the Secretary of State in May 1991, and a public local inquiry was held in February 1992.
The claimant amended the description of the development at that inquiry to:
The North Ashton Bypass, also called the Moss Link Road; a business park of about 1 million sq ft of primarily business floorspace; about 250,000 sq ft of warehouse/distribution floorspace; a 150 bedroom hotel with restaurant and conference facilities; a motorway style service station incorporating a fast food outlet; sports facilities and community woodland; a riding centre; relocation of allotments; a replacement cricket ground; the establishment of agricultural and horticultural activities or a 9 hole golf course and the relocation of the IBA aerials…
The Secretary of State’s decision letter granting permission for the development, together with the ANB (revised application 3), was dated 25 March 1993.
Mr Blatchford said that the absence of the scheme would not, in his view, have had a material consequential affect upon the key decision-making process, and that the Secretary of State would have still concluded that the very special circumstances existed to warrant the removal of the green-belt designation. He said that the inspector, in making her recommendations, had identified the green-belt policy as the key issue, and he drew attention to what she said in para 9.2 of her report:
The main factor in determining this application is whether any very special circumstances exist to justify setting aside the green belt policies which apply to the application site. The site is large and encompasses much of the open land that separates Droylsden from Ashton-under-Lyne. The proposed development on the northern part of the site is of the type acceptable in the green belt; it is therefore the commercial development proposed across the southern part of the site which is contentious.
The inspector had accepted the council’s evidence that there was a shortage of industrial land in Tameside capable of accommodating176 modern forms of industrial development, and also of attracting inward investment. Mr Blatchford said that would have been the same in the no-scheme world, as would her acceptance that “even if fewer than 20 [AGMA] sites are needed, a major site should be located on the eastern side of the conurbation”.
Mr Blatchford reproduced para 9.6 of the inspector’s report, saying that her conclusion demonstrated that despite there being some other potential sites to the east of Manchester, AM was the only real possibility. Without the scheme, he said, the need for a strategic site in this location would be undiminished. Para 9.6 read:
Other possible sites to serve the eastern side of Manchester are Eastlands’ Oldham Broadway and Kingswater Park, Tameside. Eastlands has poor access to the motorway and is the site for Manchester City Council’s Olympic bid. Its availability for industrial development is therefore in considerable doubt. Broadway, Oldham is an already successful site whose development is already well advanced and will not therefore be able to meet the development needs of the late 1990’s. Kingswater Park is not in the Green Belt but is seen by the Council as complementary to the application site as it is earmarked for prestigious parkland office development because of its very attractive environment. The planning application for Kingswater Park has been withdrawn and its development is now likely to be pursued after the UDP has been adopted, if the highway problems can be overcome. If a strategic site to the east of the conurbation is to materialise and bring its much needed associated benefits, then Ashton Moss appears to be the only possibility.
The need for regeneration, outlined by the inspector, would also not be predicated on the scheme, Mr Blatchford said. In terms of green-belt considerations, he said that the inspector had concluded that a “continuous finger of land would nevertheless remain to keep the two built up areas apart”, and had gone on at para 9.8 to say:
I agree with the applicants and the Council that a high quality, prestigious development of the type likely to be attracted to a site of regional significance would upgrade the image of this run down part of the conurbation.
With Mr Higginbotham having demonstrated that the development in the no-scheme world would have been comparable in terms of layout, siting, design and landscaping, Mr Blatchford said that there was no reason to think that a different conclusion would have been arrived at. Nor would the conclusion of the inspector that the UDP process was not prejudiced have been any different.
Mr Blatchford quoted two further extracts from the inspector’s report that, he said, provide further confirmation that the very special circumstances justifying the grant of planning permission related to the significant economic and regeneration effects that would be just the same in the no-scheme world. The inspector said at para 9.17:
Whilst the commercial development proposed is contrary to Green Belt policy, I consider that the importance of providing a strategic employment site in accordance with the advice of RPG 4, in this part of the conurbation and in association with the coming of the M66 motorway to be exceptional circumstances which justify setting aside the presumption against development in the green belt. The granting of planning permission for this development would not set a precedent for the release of other Green Belt land nearby or elsewhere in the region. These proposals are justified on their own merits and are identified in the draft UDP. An early and pre UDP decision is necessary because of the desirability of tying in roadworks with the motorway construction programme. Other applications for development in the Green Belt are unlikely to have the exceptional job creation and economic benefits of this application and have not been identified as a strategic site by AGMA or defined in the UDP.
Mr Blatchford also considered the green-belt policies and, while accepting that the industrial development element would have represented inappropriate development, he reiterated that very special circumstances existed that would have warranted the grant of planning permission. The proposed new boundary for the green belt formed by Rayner Lane and the new line of the LRTS would be clear and defensible.
The right conclusion, Mr Blatchford said, was that the very special circumstances referred to by the inspector in relation to the 1993 proposals would have been undiminished in the no-scheme world. There would be significant job creation, both directly and indirectly; inward investment, so badly needed in the area, would be promoted; the perception of east Manchester would be improved; an important link would be formed by phase 1 of the ANB; and the development proposals would have facilitated an important section of the LRTS from Manchester Piccadilly to Ashton-under-Lyne town centre.
In the light of the section 17 certificate, he was of the view that all the alternative development proposals in Mr Higginbotham’s schemes 2, 3 and 4 would have achieved planning permission in the no-scheme world. The development of the section 17 land in isolation was a viable proposition, and he agreed with Mr Higginbotham’s contention that the additional area allowing access from Katherine Street would have been included by the council in the section 17 area.
Evidence: acquiring authority
Planning
Mr Colin Steven Bell is a member of the Royal Town Planning Institute and has a BA (Hons) in town and country planning. He is a partner in GVA Grimley, international property advisers, with responsibility for the firm’s planning consultancy team, based in Birmingham. He has over 20 years’ experience in town planning, and for the past 10 years has specialised in compensation cases.
His evidence for the Highways Agency comprised a chronological review of the history, material planning considerations and relevant decisions relating to AM in the scheme world, and the part the coming of the M66 played in the process. He then considered how planning policy and development in the no-scheme world would have been different, concluding that the green-belt policy, in particular, would have resulted in the planning permissions, which the claimant contended would have been forthcoming, not being granted, on the grounds of inappropriateness. Mr Bell went on to consider Mr Higginbotham’s alternative schemes, and, in particular, the development of the section 17 land in isolation.
Mr Bell said that AM was, and currently remains, a unique area of open land within the east Manchester conurbation. An appreciation of the character of the land in the context of a wider area is, he said, necessary to understand the reasoning for its treatment in terms of planning policy. In the Ashton-under-Lyne town map of 1967, the majority of AM was identified as “areas for open space not open to the public”, and was delineated as market gardens, playing fields and allotments. This town map was not formally superseded until the Tameside UDP was adopted in 1996, despite the approval of the first Greater Manchester structure plan in 1981. The Manchester Outer Ring Road (MORR) (Denton to Middleton Section) Public Consultation document was published in 1978, and within three weeks Cordingleys had submitted a major planning application, on behalf of the former owners of AM, for industrial development, land reclamation and regrading of part of AM.
The report of the officer to the planning committee on 5 December 1979 set out the development proposals, including how the removal of the peat and replacement with spoil from the colliery area would be dealt with. It confirmed that the whole of the northern area lay within the submitted green belt, and was nearly all occupied by horticulturists, some operating as garden centres. It said that the scheme depended upon the adopted route for the motorway, and reported that the applicant had estimated that 3,000 jobs would be created. Objections had been received from the Ministry of Agriculture and the NFU because of the effect on high-quality agricultural land. The officer’s report recommended, following consideration of the MORR, that the application should be refused on the grounds that until the route was fixed, it should be regarded as premature.
The Greater Manchester Council had also been consulted, and they had recommended refusal upon the basis that the northern part of the site was within the submitted green belt, and it also conflicted with the structure plan because it proposed industrial use and would involve the loss of Grade 2 agricultural land. Mr Bell said that the timing of Cordingleys’ planning application suggested that it was a proposed development designed to respond positively to the public consultation177 on the alternative motorway routes. It also did not appear to be a coincidence that the proposals took account of a possible alternative alignment for the motorway (the modified blue route), which was also TMBC’s preferred route.
Mr Bell referred to the Greater Manchester green-belt subject plan. The appropriateness of including AM within the green belt was endorsed by the inspector in his report of October 1992, following a public inquiry. The plan was adopted in 1984.
The draft proposals for the Ashton Moss/Littlemoss/Limehurst local plan, considered by TMBC’s planning committee in November 1983, were updated in October 1986, and included, among other things, reference to the “future development of AM as a horticultural area” and “the likely impact of the M66 (MORR) on land use and communication patterns in the area”. The plan identified the problems of the motorway crossing primarily open or disused land, and that those problems had to be compared with the enormous benefits the motorway would bring to that part of Tameside. It went on to deal with the issues to be resolved in respect of AM, and, Mr Bell said, concluded that, while there would undoubtedly be some pressure for more development, the proposals made clear that the land remained in the green belt. The preamble to the proposals stated:
The principal need, in this area, is to devise a proposal to safeguard the future of Ashton Moss as a crop growing area, whilst permitting the growers some freedom to develop their holdings in order to increase their viability.
Proposal 8 stated, in part:
Planning permission will not normally be granted for any new commercial development… unless it is directly connected with an agricultural holding on Ashton Moss. Existing non-agricultural users will be allowed to improve or relocate their facilities, subject to the usual development control criteria and the need to safeguard good agricultural land.
Thus, Mr Bell said, the local plan was being used, even in the knowledge of the motorway, as a development control tool to prevent anything other than limited development in connection with the agricultural and horticultural holdings.
Mr Bell said that the Greater Manchester structure plan, approved by the Secretary of State in January 1986, appeared to take the adopted green-belt and other open-land policies as read, in that Policy OL1 included AM in its description of an area of green belt on the western and northern side of Tameside. At the public inquiry into the motorway in April 1986, the senior planning officer representing the council said that the location of AM, sandwiched between urban areas, was regarded as vulnerable to development pressures, which would be greatly exacerbated by the coming of the motorway. It needed the protection of the green belt to preserve this very important open area.
Mr Bell said that Tameside Council produced The Next Ten Years — A Strategy for Investment and Employment Creation in Tameside in the belief that, with the coming of the motorway, good times were ahead. Recognising that the M66 would improve communications by making local markets and key services easily accessible, the report noted that the effect would be to make both client-led and speculative developments viable within the borough, and the shortage of high-quality sites elsewhere would focus attention upon Tameside. The problems that this would bring were noted, and, taking into account strategic communications corridors, key commercially marketable areas and the encouragement of new investment, the council identified five key strategic areas, of which AM was one. However, the report concluded that “three of the sites should be preferred for development and promoted vigorously”. The situation regarding the other two, of which AM was one, “would depend on the precise nature of development pressure and on the balance between the wider benefits of development and environmental considerations”.
Thus, Mr Bell said, while the coming of the motorway had fired the council’s imagination in terms of attracting development to the area, the fact that they appeared to be holding AM back seemed to demonstrate a lack of confidence that AM could deliver a development of the type subsequently permitted, even in the scheme world. He said that the trigger for the inclusion of AM as one of the preferred SESs was the publication by the Secretary of State of RPG 4 in December 1989. This said that revitalising the subregional economy in general, and promoting urban regeneration in particular, were to be the key objectives for Greater Manchester.
Mr Bell then considered the claimant’s outline planning application for the development of, he said, 163ha (403 acres) at AM, which subsequently achieved planning permission (on 25 March 1993) following the public inquiry. He said that the statement accompanying the application made clear the applicant’s view of the significance of the coming of the M66 in the context of the green-belt objection. Its significance as a facilitator of the development proposal was, he said, undeniable from the way it was expressed. In addition, the statement that the principal function of phase 1 of the ANB (the section across AM) was to enhance access to the M66 proved that it was demonstrably a creature of the scheme.
In quoting extensively from the inspector’s report to the Secretary of State following the public inquiry, Mr Bell summarised the references to the applicant’s case that identified the motorway as a key factor. He said that the inspector’s conclusions made clear that it was primarily the power of the oncoming motorway that persuaded the inspector herself in 1992, and the Secretary of State in 1993, to conclude that there were very special circumstances that overrode the presumption against development in the green belt. It was the motorway that enabled the AM development to meet the vitally important locational criteria of RPG 4 and AGMA, and, similarly, the crucially important commercial criteria for its effective treatment in a marketing sense, as an SES, if it were to be any more important than just a large local industrial estate.
As for the preparation for the Tameside UDP, which had been adopted in September 1996, Mr Bell said that, throughout the period, the M66 had been seen as a certainty, and there had been no doubt in any of the reports, policies or accompanying documents that the road would be built.
Mr Bell considered that, in the no-scheme world, the focus of attention would have shifted away from AM, as the local authority would have found it almost impossible to justify it as a key strategic area in the face of its green-belt designation. The other identified sites, for example Kingswater Park and parts of Denton Hall Farm, with their better motorway access, would have been preferred. The key point was that AM would not meet the most basic criterion of RPG 4 — close proximity to a motorway. As, in his view, the applicant would not be able to meet the very special circumstances test, particularly in respect of motorway access, the local authority or the Secretary of State would not have been willing to sanction the loss of green belt to a development that would have been unexceptional in its own right, and incapable of generating the benefits expected in a scheme world. There would also have been valid objections on the grounds of prematurity, and there would have been no grounds for promoting a development of this nature in advance of the UDP.
As to the development of the section 17 certificate site in isolation for light industry (B1c), general industry (B2) and warehouse and distribution (B8), Mr Bell said that, in planning terms, this would have no commercial merit whatsoever, and it would not have been economically viable. The fact that, in Mr Higginbotham’s scheme 3, the bunds had been shown outside the boundary of the reference land was also critical. If they were built, as they would have to be, within the boundaries, the loss of development area would mean that the footprints of the buildings would need to be significantly reduced, and insufficient car parking could be provided. Smaller bunds than those proposed would mean the eaves heights of the buildings would need to be reduced. Also, the proposed access off Rayner Lane was unsatisfactory, as it was no more than an agricultural track, and the impact upon Richmond Street and Katherine Street would be of concern.
On Mr Higginbotham’s scheme 2, the development of the frontage land to Manchester Road, Mr Bell said it was important to note that the frontage land was, at all material times, in the green belt, and would therefore have been subject to the relevant policies. He did not accept Mr Higginbotham’s contention that the “rationalisation” of the frontage178 land to the north of Manchester Road would be undertaken in association with the land to the south in connection with the Snipe Colliery development. Some of the land was not within the claimant’s ownership, and it was not legitimate, therefore, for the area to be included. It was his view that Mr Higginbotham’s plans for the frontage land were “part of the bigger picture” in supporting the development of AM as a whole, but the suggestions threw up a whole new set of planning arguments, and, in any event, as with the rest of the land, any development would be inappropriate in the green belt. The very special circumstances needed to overturn the policy would not be met.
Mr Bell said that scenario 2 (assuming planning permission granted in 1996) would not have occurred for the same reasons as he had given for the earlier application, in that AM would have been protected by the green-belt and other policies.
In summary, Mr Bell said that, in the no-scheme world, planning permission would have been refused for any development of the scale proposed in the scheme world, upon the following grounds:
1. prematurity;
2. inappropriate development in the green belt;
3. loss of the best and most versatile agricultural land;
4. encroachment into the Ashton Moss Green Wedge, prejudicial to the maintenance of the open and separating character of the land;
5. loss of allotment gardens zoned as urban green space;
6. reduction in the width of a designated wildlife corridor;
7. access to the motorway only available over already heavily congested roads, and not sufficiently near to accord with the requirements of RPG 4;
8. greenfield, rather than brownfield, site.
If the motorway were to go, he said, so would AM as a strategic location by RPG 4 and AGMA standards and any sensible commercial criteria. No matter how large or attractive the site, if it had not been well connected to the motorway network, it would almost certainly have failed as a strategic development. Even if planning permission had been obtained, the lack of spoil that had, in the scheme world, been available from the motorway to replace the peat would have had grave implications for the economic viability and deliverability of the development.
Agriculture
Mr John Steele has degrees in agriculture and agricultural economics and is a senior associate to RPS Clouston, environmental consultants, of Steventon, Oxon, having 18 years’ experience with the company. He has specific responsibility for the project management of UK highway schemes, including the co-ordination and management of full environmental and agricultural impact analyses of new roads. His company was instructed to report upon the agricultural land classification of AM, and to comment upon the way in which the loss of this site would have been judged against the relevant national agricultural policy.
He said that, although the land at AM had originally been classified as Grade 2, under the revised ALC system, which introduced a more detailed set of guidelines for assessing land quality, the key influence upon the grading of the site was the assessment of the wetness class. It was Mr Steele’s view that the dipwells that MAFF had monitored on the site over a 32-week period proved conclusively that the majority of the land was Grade 3a under the new criteria, and thus, in accordance with PPG 7 (issued January 1992), “the best and most versatile”.
Mr Steele outlined the history of land use on AM. He said that during the last 25 years, by a process of rationalisation, farm businesses had been created that exploited the inherent qualities of the land. Those farming the land had shown a long-term commitment to continue farming on AM, and had invested considerable capital in their businesses.
As for MAFF’s involvement in the M66 planning process, Mr Steele said it recognised the overriding need to develop the motorway around this part of Manchester, and for that reason did not sustain objections to the loss of high-quality agricultural land to the road itself, although it had objected to some further alignments that would have intruded further into AM. As far as the proposed industrial development was concerned, Mr Steele said that MAFF had maintained its objections to it right up until just before the 1992 public inquiry. He said that it was only after the site had been defined as a strategic employment site, and the local authority no longer supported MAFF’s stance on the national agricultural policy, that it (MAFF) concluded it would be inappropriate to pursue its objections to the 1992 inquiry. It was not, as Mr Worthington had suggested, because it conceded that the land was Grade 3b. In the no-scheme world, Mr Steele said that MAFF would have maintained its objections upon the basis that the site should be safeguarded from development because it was a large area of the best and most versatile land, which could continue to be exploited for agricultural purposes. The claimant’s proposed schemes would result in the loss of very large areas of high-quality peat, and that loss would be irreversible.
Mr Steele addressed the question as to whether the land classification changed at 225 FCDs or lower, or 225 FCDs or higher, (the Blue Book being ambiguous on this point). Mr Steele said that, as had also been acknowledged by Mr Worthington, a difference of 2 to 3 FCDs could apparently move the land classification from Grade 5 to Grade 2. Both of these were accepted to be inappropriate, so he said the information from the Soil Survey LandIS database, identifying the FCDs at a number of points around the site, was helpful. This identified a number of points on the southern and eastern part of the site where the FCDs were actually 225. The FCDs appeared to increase towards the north and west. As there were a number of parts of the site where the FCD figure was 225, and it was accepted that the use of more than 225 resulted in an inappropriate (Grade 5) finding, then, he said, it would appear sensible to apply the 225 FCD criteria to produce an ALC grading (at wetness class WCII to IV) of Grade 3a or Grade 2.
Mr Worthington’s limited survey, undertaken in January 2000, was, Mr Steele said, wholly inappropriate for establishing the ALC in 1991, as the land had changed (with the infrastructure works and the construction of the motorway cutting) in terms of its water retention and drainage qualities.
In summary, Mr Steele said that his firm’s investigation of the climatic data results in a conclusion that the 3a grading of the site by MAFF in 1991 was logically and sensibly derived. The dipwell data that MAFF had taken in 1991 was used not to provide a definitive grading, but to confirm the grading that it had already applied.
Marketing
Mr Michael Andre Guest is a chartered surveyor with over 30 years’ experience of the commercial and industrial property market in the North West generally, and Greater Manchester in particular. He is a senior partner with the Manchester firm of Guest Garsden. He gave his expert opinion as to whether the subject property would have come forward for development between 1978 and 1996 in the no-scheme world in terms of its suitability or otherwise as a strategic employment site, its feasibility and market need.
He considered market conditions at 1978, 1986, 1991 and 1996, the nature and availability of land in Tameside in 1991, competing sites, and the suitability or otherwise of AM in terms of strategic site requirements. As far as the site itself was concerned, he said that the importance of immediate access to a motorway network to warrant such an extensive and complex development could not be overemphasised. This was not only for ease of access and egress for occupiers and their customers, but also in respect of the nature of user that would be attracted to the site. In economic terms, the market would be too restricted in the absence of a nearby motorway link to make the project viable. For instance, it was Mr Guest’s view that the market would be mainly restricted to local relocating or expanding users, and they were sufficiently catered for elsewhere within the borough, without opening up AM for development.
Major inward investors would not consider locating to the area if they did not have the all-important motorway network readily to hand, and while AM is satisfactorily located in some respects, including, in particular, access to Manchester city centre, this on its own would be an179 insufficient draw. Potential investors would not just consider location and access to major road networks, but also supply and demand in terms of rental value. Shortage of tenant demand would mean that the required rental levels would not be achieved, and, hence, there would be insufficient return to make the development economically worthwhile.
In 1978, when the claimant submitted its first major planning application, Mr Guest said, the market was in a depressed state and Ashton-under-Lyne was very much a secondary location for industrial development. There was little or no interest from industrial developers in Tameside, and it was inconceivable that there would have been sufficient demand for a site of about 400 acres at that time.
By 1986, there had been small signs of improvement in the market, but there was still some uncertainty as to whether the M66 extension would proceed, and developer interest was restricted to small sites. Interest, he said, in huge schemes like AM was non-existent. Although a property boom followed, and, in 1989, the market was very strong, by 1991 rental levels had stabilised and there was an oversupply of available industrial land. Mr Guest quoted from the Research and Information Paper 91/13 prepared for the AGMA, which said: “the signs of slowing in national industrial rental growth in 1989 continued throughout 1990”. The slowdown in rental growth was a sign of the worsening market, which, by late 1991, had totally collapsed. Institutions were withdrawing from the market “en masse” in 1990, and the possibility of financing a development of the size of AM was virtually nil, both in the scheme and in the no-scheme worlds.
Mr Guest referred to the inspector’s report and the Secretary of State’s decision on the Snipe Colliery retail development in 1989 and 1990. He said the conclusion had been reached that there was a sufficient supply of industrial land in Tameside for six years (even longer if Dewsnap Sidings were included), and there was “no convincing evidence of a shortage of land for industrial development in Greater Manchester as a whole”. The evidence of the market at the end of 1991 indicated a significant reduction in demand; the resultant reduction in rents and capital values, and the ongoing perception that AM was a secondary location, led Mr Guest to believe that it was most unlikely that AM would have been judged appropriate for development as a strategic site. Whether or not it had been identified as such, the crucial factor was demand and economic viability, neither of which existed.
In scenario 2, planning permission would have been granted in early 1995 and marketing would have begun in September 1996. At that time, Mr Guest said, developer interest was only just beginning to increase from the recession of the early 1990s, but most of the interest was from distribution companies, which needed direct access to the motorway network. There was still uncertainty about the future, and without the motorway no prudent developer would contemplate a site of the size of AM. Also, without the scheme, there would be no demand for the 70-bedroom hotel proposed by the claimant. There was certainly no persuasive evidence that there was significant demand for high-tech units from 1990 to 1996, with only ICL (Celestica) having entered the town in any sizeable way in the past 15 years. The relative inaccessibility of AM in the no-scheme world would have been a major deterrent to potential investors and occupiers.
The two sites that would have been considered as major competition to AM were Dewsnap Sidings and Kingswater Park. While Mr Guest accepted that the latter was identified for high-tech development in a parkland setting, he said that the proposed B1 element of the AM scheme would not be able to compete with that site in terms of attractiveness and accessibility, and there would be insufficient demand for the general industrial (B2) uses, and none at all for B8 distribution.
In summary, Mr Guest said that no amount of marketing could have addressed the fundamental locational weaknesses of AM without the motorway, and the scheme would not have produced high enough rentals or low enough yields to make it economically viable. The sheer scale of the claimant’s proposals bore no resemblance to the real demand or actual market conditions. He said that Mr Brooks’ marketing evidence had been largely hypothetical and he had relied to a great extent upon improved market conditions after the valuation date, which was unjustified in the context of this case.
As for the development of the section 17 land on its own, Mr Guest said it was an isolated lozenge remote from the built-up area. Even if planning permission were obtained for access via Rayner Lane (which was doubtful), the cost of making up, together with the peat extraction, infill and other infrastructure works (including soft landscaping to shield the “bad neighbour” uses from adjacent properties) would create a site that was not economically viable to develop.
Highways
Mr Paul Robin Corbett is a chartered engineer with nine years’ experience in transport planning and highway engineering. As a principal engineer with JMP Consultants, of Manchester, he specialises in urban development projects and assessments of transportation impacts. His reports and evidence considered the strategic and local road networks that were in place at the valuation date, the impact that the proposed development would have on those networks in the no-scheme world and the justification, if any, for the ANB. Supplementary reports dealt with the claimant’s proposals for development of the section 17 land in isolation, and the Snipe Colliery development in the no-scheme world.
In considering the main methods of access to AM, which was proposed to be developed with unrestrained parking provisions, Mr Corbett said that the private car would have been the principal mode of transport in both the scheme and no-scheme worlds. The ability of the roads in the vicinity to cope with projected increases in, and concentrations of, private traffic was an important planning consideration. The alternative methods (public transport, bicycle and access on foot), to which Mr Skellern attached significance, would not have been a major consideration in transport planning terms in 1990, although he accepted that such alternative modes sprang to prominence during the 1990s.
On the regional and Greater Manchester strategic highway networks, the nearest intersection to the south, at the Denton interchange, was 4km, and to the north, at the start of the A627 (M), 10km. In the next category, the local principal highway network, the north-south routes relevant to AM included the A627, giving access from Ashton-under-Lyne to Oldham, the A6010 to the west, forming part of the Manchester inner ring road, and the A6017, which provided the principal route to the M67 at junction 1. The main east-west routes through Tameside were the M67/A57 link and the A635.
As for the ANB, it was Mr Corbett’s view that its construction as a dual-carriageway was “a function of the development on Ashton Moss” in the scheme world, its major purpose being to release land adjacent to the new motorway for development. The original concept of the road had been to provide a link from the motorway to otherwise relatively inaccessible sections of North Ashton. Without the motorway, the justification for the link road, which, in traffic terms, was difficult to justify anyway, would be significantly reduced. If stage 1 of the ANB (the section through AM) were constructed, this would result in a large increase of traffic and congestion to Wellington Road. That would, however, be relieved by the construction of phase 2, into the town centre. It had been agreed with Mr Skellern that, without the motorway, it was unlikely that the ANB or any other road across AM would have formed part of the local highway authority’s highway improvement programme.
The first documentary evidence for the ANB proposals that Mr Corbett could find was in 1989. By the time of the 1992 inquiry, it was clear that TMBC anticipated that the developer would fund the ANB (stage 1), and it proposed to apply for the funding of sections 2 and 3 to the Department of Transport. As it transpired, he said, a bid was made for DTP funding for the eastern section of the ANB, stage 1, the developer funding the western section to the tune of about 50% of the overall cost. The ANB was, of course, a scheme-world proposal, and included north-facing slip-road connections to the motorway, with a further link provided to the east of the motorway linking the ANB with the A635. Mr Corbett said that TMBC had not been successful in180 obtaining TSG funding for the ANB, but had granted planning permission for the Triangle Park retail development, and it was anticipated that that would fund the eastern section of the ANB.
In the no-scheme world, much of the north-south traffic would be feeding into and out of Ashton on the existing A6017 Stockport Road and the A627 Oldham Road. A link to the north of Ashton, across AM, would be of no relevance to many drivers, who, with no motorway in place, would not consider using the ANB. On this basis, and considering the weak justification for the ANB in the scheme world, Mr Corbett said that it would be highly unlikely that a link to the north of Ashton would have formed part of the local highway improvement programme in the no-scheme world.
In respect of the proposed LRT link, Mr Corbett said that the routeing across AM was only considered in conjunction with the motorway, and in the no-scheme world he anticipated that on-road running along the A635 would have been likely to have been considered favourably, and a number of options were available, admittedly at higher cost than the route that was actually being taken in the scheme world. He thought that a route across AM in the no-scheme world would be most unlikely to have even been considered, let alone approved.
Mr Corbett commented on Mr Higginbotham’s proposals for the development of the section 17 land in isolation, with access from the north over Rayner Lane and from the south along Katherine Street. In 1990 Rayner Lane was designated a RUPP (road used as a public path) for use as a bridleway, and it had historically been used for access to the agricultural uses on AM. He thought that planning approval would be required if it were to be used as an access to industrial development. While, in general, there appeared to be sufficient width to accommodate the required 6.25m lane, there appeared to be a “pinch point” close to the cricket pitch, and, furthermore, additional land would be required to accommodate the suggested passing places.
Planning permission would also be required to extend access from Katherine Street. Katherine Street, as well as part of Richmond Street, was residential in nature, and traffic-calming measures had been incorporated. Turning for HGVs from Richmond Street into Katherine Street was difficult, and, in Mr Corbett’s view, the fact that there were some industrial users using those streets was not justification for further intensification of use. He said it is clear from the transport policies within the structure plan that the problems of HGV traffic on unsuitable routes was a key transportation consideration. Clearly, the most effective way to control HGV movements would be to provide HGV access over roads that were suitable, and, in his view, Manchester Road was.
The access from Manchester Road could have been incorporated within the proposed improvements to the A635 junction in conjunction with the Snipe development. It was Mr Corbett’s opinion that the alternative proposal put forward by Mr Higginbotham for an access off Groby Road, which was a private highway and had bridges over the railway and canal, was impractical, and would have been prohibitively expensive.
Mr Corbett said that he thought Mr Skellern’s suggestions for significant improvements to the existing highway network were impractical and uneconomic. The improvements that had actually been undertaken (excluding those directly related to the motorway) were typical of what could be expected through the 1980s and 1990s. However, the idea of improving traffic safety and flows by improving service accesses to the rear of premises fronting these roads, blocking off minor side roads, providing guard railing to footpaths and extra “ghost” (turning) lanes at road junctions was not realistic in such heavily-developed areas. The cost of property acquisition and the disruption caused would be significant factors to weigh against such proposals.
Mr Corbett did not agree with Mr Skellern’s assertion that virtually all employees on the proposed AM development would live locally, and thus not create significant impact upon the routes further to the north, south, east and west. People living in Stockport, south Manchester, the west of the conurbation and Cheshire would all use the A6017 from the M67. In his view, a 20% increase in traffic flows on the A6017 north of the M67 would be a fair assessment. A developer of AM, in the no-scheme world, would have had to accord with a planning condition, or enter a section 106 agreement to effect improvements to the north-south routes. A similar agreement would have been required in respect of Wellington Road.
As to the Kingswater Park and/or Denton Hall developments in the no-scheme world, Mr Corbett said that the provision of the Denton interchange at the northern end of the M66 created an ideal opportunity to create good access to both of these sites. Denton Hall, he said, would complement Kingswater Park by providing land for B2 and B8 uses that would generate significant volumes of goods traffic.
Conclusions
Scheme 1
Policy context
Under the timetables put forward by the claimant, and from which the acquiring authority did not dissent, application for scheme 1 would have been made either in January 1990, with a public inquiry in the spring of 1991 and a decision by the Secretary of State in October 1991, or in April/May 1993, with a decision by the Secretary of State in January/February 1995, following call-in and a public inquiry. In the latter scenario, the public inquiry would have been concurrent with the inquiry into Tameside’s UDP. Both in October 1991 and in January/February 1995, the Secretary of State would have been required, under section 54A of the Town and Country Planning Act 1990 (which came into force on 25 September 1991), to determine the application in accordance with the development plan, unless material considerations indicated otherwise. It was not suggested that the policy and other considerations would have been materially different in the two scenarios, and we do not think that they would have been.
The Greater Manchester structure plan, approved in 1986, defined the extent of the Greater Manchester green belt and outlined the main purposes of green-belt designation (policy OL1). Policy OL2 contained a conventional provision against inappropriate development in the green belt. There were policies to protect agricultural land (OL6 and OL7), general policies for urban improvement and regeneration (G1) and for priority areas available for government aid (G2: the site was in such an area), and a series of economic policies (EC1 to EC10) providing, in particular, for meeting the needs of existing and incoming firms. Policy T2 provided for preference to be given to locations best suited to use and space capacity on the transportation network. The Greater Manchester green-belt local plan, adopted in 1984, had shown the site to be within the green belt.
Central government guidance was contained in planning policy guidance notes, notably PPG 2 Green Belt (January 1988, updated January 1995), PPG 4 Industrial and Commercial Development (January 1988, updated November 1992) and PPG 7 Rural Enterprise and Development (January 1988, updated January 1992); and in the regional planning guidance note RPG 4, which contained strategic guidance for Greater Manchester (December 1989).
We do not think that in the no-scheme world central government and statutory development plan policies would have been any different, except to the extent that they related to the motorway. In our judgment, the decisive issues in the notional no-scheme world application would have been whether the site fulfilled the qualifications for a strategic employment site under RPG 4, and, if so, whether the circumstances were such as to warrant its development in the face of its green-belt status. We consider this by reference to the green-belt status of the site, the approach that Tameside Metropolitan Borough Council would, in our view, have adopted, the implementation of the strategic guidance, and the approach of the Secretary of State. Agriculture and highways issues would also have fallen to be considered, and we go on to deal with these. We also refer to the evidence on marketing. Other issues were also raised, but we do not think that they would have had any practical significance for the decision that might have been taken in the no-scheme world.
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Green belt
The inclusion of Ashton Moss in the green belt, down to Manchester Road, in the draft proposal published in 1980, was generally accepted. There was objection at the local plan inquiry in April-June 1981 to the inclusion of part of the Manchester Road frontage within the defined area. This objection was rejected by the inspector, who said:
the site is an important part of the predominantly open wedge which performs a vital separating function between Droylsden/Audenshaw and Ashton-under-Lyne and I am in no doubt that it is a very necessary part of the green belt.
The inspector for the 1992 inquiry made a similar assessment:
The site is part of the adopted Manchester Green Belt. This finger of Green Belt performs a very important function of separating the sprawling urban areas in this part of the conurbation. It provides a lung of open space which is much appreciated by local residents for its visual and recreational qualities.
In the no-scheme world, therefore, the Secretary of State would have regarded the site not only as properly included in the green belt but also as one that performed a very important function.
Attitude of Tameside Metropolitan Borough Council
Until 1989, Tameside Metropolitan Borough Council had consistently adopted the approach that the Moss was green belt and high-quality agricultural land and should accordingly be protected from development. In December 1979 they refused permission for industrial development of land consisting of the Snipe colliery site and 62 acres north of Manchester Road. The reasons for refusal included the green-belt status of the 62 acres and the high quality of the agricultural land. In November 1983 the council approved a draft Ashton Moss/Littlemoss/Limehurst local plan. It was used for development control purposes and was updated in October 1986. It took account of the M66 proposal and the fact that much of the land in the plan area was green belt. It described Ashton Moss as “the most fertile agricultural land in the borough, classified as Grade II by the Ministry of Agriculture”, adding: “With better husbandry it could be improved to Grade I”. Under “Proposals” it said that the principal need was to devise a proposal to safeguard the future of Ashton Moss as a crop-growing area, while permitting the growers some freedom to develop their holdings in order to increase their viability. It set out a policy designed to do this and to rule out other commercial development. At the M66 inquiry in April 1986, the council made clear that they did not wish to see development on Ashton Moss, because it was part of the green belt and was also high-quality agricultural land.
Up to that point, there had been no suggestion on the council’s part that development of Ashton Moss might be acceptable other than for purposes connected with the horticultural use. In June 1989 they adopted a “strategy for investment and employment in Tameside” entitled “The Next Ten Years”, and Ashton Moss was identified as having potential for development (along with four other areas). They noted that the section to east of the M66 would be isolated, would be the subject of development pressure, and that the area had the potential for business uses, hotel, office development and distribution. Three of the four other areas, however, were preferred for development. They were at Audenshaw and Denton and Dewsnap Sidings. In due course, after the application for Ashton Moss in June 1990, the council came positively to favour development of Ashton Moss. In September 1990 they approved a topic paper on employment, which recognised the potential of Ashton Moss for development. They resolved in favour of the development proposal on 31 January 1991, having considered a full report from the planning officer, whose conclusions began:
The route of the M66 Motorway across Ashton Moss represents a unique opportunity for a major business park to be developed in high amenity surroundings which will be of considerable benefit to the local economy and the people of Tameside.
It is clear to us that Tameside’s decision to support an Ashton Moss development was the result of the M66 proposal, and we are in no doubt (taking account also of strategic policies, to which we shall turn shortly) that in the absence of the M66 proposal, the council would have maintained policies and exercised their development control powers upon the basis that Ashton Moss was green-belt and high-quality agricultural land and should be protected from development. In particular, they would have prepared a UDP upon this basis. We heard no evidence from any Tameside officer, and, although officers had expressed to Mr Higginbotham the view that the council would have identified Ashton Moss as a strategic employment site in the no-scheme world, we are satisfied, on the material before us, that this would not have happened.
Tameside would, in our view, have been conscious that there was no shortage of industrial land in their area. At the Snipe inquiry in October and November 1989, the proposal was to develop for retail purposes a site that the council said was needed as industrial land. The inspector concluded:
There is no convincing evidence of a shortage of land for industry in Greater Manchester as a whole. Substantial sites remain to be developed in the Boroughs of Oldham to the north of Tameside and Stockport to the south. In Tameside there may well be opportunities for development in areas such as Audenshaw Reservoirs and Denton Hall Farm which are mentioned in the Transport Policies and Programme submission for 1990/91. If as expected the completion of the M66 stimulates interest in Tameside, an improving industrial market could well result in further sites being brought forward for redevelopment… In my judgment there is no scarcity of land for industry at present, and not likely to be one for several years at least.
After 1989, as the evidence shows, there was a decline in demand for industrial sites as the result of a fall in economic activity that did not bottom out until 1993. We do not think that, at any time with which we are concerned, Tameside would have taken the view that there was such a general shortage of industrial land in the area that Ashton Moss should be taken out of the green belt to satisfy demand. Nor, in the absence of the motorway, would it have been thought to possess the attributes of a site that would be attractive to high-technology industry.
Strategic guidance
In December 1989 RPG 4 “Strategic Guidance for Greater Manchester” was issued. It required councils to identify a comprehensive range of development sites for manufacturing and service industries, and went on:
In particular they are invited jointly to identify opportunities in strategic locations for the provision, or creation, of major high amenity sites for high technology industry — preferably in existing urban areas, and with good access to motorways and public transport. Such provision should seek to exploit the presence within the conurbation of major higher educational institutions.
The Association of Greater Manchester Authorities began work in 1989 to identify strategic sites pursuant to RPG 4. Reports of a subgroup, identifying and evaluating particular sites, were produced in January 1990, April 1990 and January 1991. In May 1991 the planning officers’ group produced their report. AGMA’s consultation report was published in December 1991, and its final report was produced in August 1992. Ashton Moss was not identified as a potential site in either of the 1990 reports. This is no doubt explained by the fact that, at that stage, Tameside had not come actively to favour its development. By January 1991 they had resolved to do so, and, as we have concluded already, that support derived from the “unique opportunity” that was seen to be created by the coming of the motorway. In the no-scheme world, Tameside would not, in our view, have advanced Ashton Moss as a potential strategic site, and it would not have featured on AGMA’s list.
AGMA’s final report was published in August 1992. It noted, as the basis for its work, the request in RPG 4 para 5 that councils should identify opportunities in strategic locations for high-amenity sites for high-technology industry. It said:
Strategic Guidance does not define “High Technology Industry” nor does this report attempt any definition. Instead, the local authorities have identified what they consider to be medium-to-large sites with good accessibility to motorways and public transport and with high existing or potential environmental quality.182 It is expected that such sites will meet the needs of high technology industry but clearly the sites would also meet the needs of other indigenous and inward-investing industries and businesses which seek large sites with good access and a good environment.
The report recorded that the two phases in which the project had been carried out — first concentrating upon sites over 20ha, and then considering sites between 8 and 20ha. It noted that concern had been expressed about proposals that included land currently in the green belt. It went on:
In the event only 3 of the sites are in existing green belt. Since the exercise began, however, the government’s increased commitment to the non-release of green belt has been ever more apparent and the DOE in examining draft UDPs has expressed a number of concerns. The question as to whether these sites can remain in the portfolio is now down to the statutory planning system as the merits of the various proposals will be tested at planning appeal or UDP inquiries.
Without its immediate access to the motorway, Ashton Moss would not, in our view, have been considered as having potential as a site that would attract high-technology industry, and its green-belt status would have prevented its allocation to meet the more general demands of industries and businesses looking for large sites. On the east side of Manchester, the report identified sites at Kingswater Park and Dewsnap Sidings within Tameside, and Oldham Broadway in Oldham. The object of the exercise was to identify a “portfolio” of sites, to give a choice of sites, particularly for “footloose” inward investment. Sites were not identified for the purpose of meeting some quantified need, and, beyond a general desire to ensure that there was a reasonable geographical spread of sites, there was no requirement about the number of sites identified in any sector or borough. We do not think that, if the only sites identified in Tameside had been Kingswater Park and Dewsnap Sidings, Tameside or the east side of Manchester would have been perceived as deficient in its provision. In our view, Kingswater Park would have been seen as an excellent site for B1c as well as B1a businesses, and we are satisfied that satisfactory access from the motorway junction would have been achieved.
Secretary of State
The scenarios assume that the ultimate decision in the no-scheme world on whether to grant planning permission would have rested with the Secretary of State, either before or as part of an inquiry into the UDP. He would have been considering the application, in our view, in circumstances where the site was in the green belt in the statutory plan, it had not been identified by AGMA as a strategic site and its release was opposed by Tameside. The site would have lacked the essential characteristic of a high-technology site, in terms of good motorway access, and no case could have been made out on the need to release a large amount of land in Tameside for industrial or distribution development.
We are in no doubt that it was only because of the motorway that, in 1993, both the inspector, in her report, and the Secretary of State, in his decision, concluded that the site’s suitability as a strategic employment site amounted to very special circumstances justifying development in the green belt. This is clear, in our view, from the following passages of the inspector’s report:
The coming of the final section of the M66 Motorway makes this hitherto poorly accessed part of East Manchester a candidate for one of the strategic, high amenity employment sites for high technology industry which the Secretary of State, in RPG 4, indicates that he wishes to be developed in order to regenerate the economy of the region and to encourage inward investment.
The character of this site and the surrounding area will change with the coming of the motorway. The motorway could merely bypass the eastern side of Manchester and facilitate the outward movement of its population and industries to other parts of the country. On the other hand the motorway could be used, as is envisaged in RPG 4, to revitalise the local economy and encourage the inward movement of people and investment, to the benefit of the surrounding area.
In the Secretary of State’s decision letter, this was said:
He agrees that the considerations set out by the Inspector in her conclusions, including the importance of providing a strategic employment site, in accordance with the advice in RPG4, Strategic Guidance for Greater Manchester, in this part of the conurbation in association with the construction of the M66 Motorway, amount to very special circumstances that justify allowing development for purposes not normally appropriate in the green belt.
It is undoubtedly the case that the site was seen as having advantages in addition to its location on the motorway. It was on the east side of Manchester, where regeneration was needed; it had a large potential workforce within a five-mile radius; and it would produce the Moss Link Road, which would improve traffic conditions and facilitate the development of smaller sites in Ashton-under-Lyne. But it is, in our view, quite clear that in the absence of the motorway these advantages would not have been sufficient to achieve the acceptance of the site as a strategic employment site. It would have been in a “poorly accessed part of East Manchester” (to use the inspector’s words) and would thus have lacked the essential quality of good accessibility.
These considerations would alone have been sufficient, in our view, to rule out the grant of planning permission. In addition, however, we believe that the Secretary of State would have been concerned about the viability of the development, located as it was at some distance from the motorway. We prefer the evidence of Mr Guest on the nature and degree of demand that there would have been for the site in the no-scheme world. The need to deal with the overlying peat would have been seen as imposing costs on the development that were potentially critical in view of this weak demand. The possibility of development of this very large site being started and not completed would have been real, and the environmental consequences of this would have been regarded as very undesirable. Moreover, the Moss Link Road might not have been completed.
Agriculture
The acquiring authority said that, in the no-scheme world, permission would have been refused on agricultural grounds. The policy, under Circular 16/87 and, from 1992, PPG 7, was that the best and most versatile land should generally be protected. The “best and most versatile” was defined in Circular 16/87 as Grades 1, 2, and 3a “in parts of the country where there is no Grade 1 or Grade 2 land”, and in PPG 7 as including all Grade 1, 2 and 3a land. Development of land of lower grades than these would not normally be opposed on agricultural grounds.
We are in doubt that, in the no-scheme world, MAFF would have opposed the development of Ashton Moss on agricultural grounds, and that this would have been one of Tameside’s reasons for refusing permission. Until the preparation for the 1992 inquiry, it appears that MAFF’s assessment of the land as Grade 2 was generally accepted. What happened in the scheme world was that MAFF, having been consulted on the 1991 application, objected and then carried out a survey that led it to the view that the land was Grade 3a. We do not think that things would have been different in the no-scheme world.
In the event, MAFF did not pursue its objection to the 1991 proposals. This, however, was against the background of the motorway proposal, which, through taking a substantial area from the middle of the Moss, deprived a number of tenants of land and severed holdings. In the absence of these damaging effects, MAFF would, we think, have been more concerned to protect the Moss from development. It would thus have resulted in a contest at the inquiry that would have taken place in the no-scheme world, with Tameside and MAFF opposing the development on agricultural grounds and MAFF adducing evidence that the land was Grade 3a. The evidence on both sides at that inquiry would have been similar to the evidence before us, and the arguments would effectively have been the same.
The difficulty in assessing the agricultural quality of Ashton Moss is that it was in character extremely unusual, possibly unique. The peaty soil had the potential for high yields of good crops, but the relatively high rainfall in this location just west of the Pennines significantly restricted the use of heavy machinery, even when drainage ditches were well maintained. The land was capable of producing, and did produce,183 good yields of market garden crops, but the scope for other types of cultivation was limited.
MAFF’s Blue Book (published in 1988) sets out the basis for the objective grading of land and it contains a procedure for assessing grades by reference to soil wetness. In the case of Ashton Moss, it is soil wetness that constituted the principal limiting factor for cultivation. The data, which we accept would have been applied for this purpose, shows a small area of the land to have 225 field capacity days, and the rest of the land to have between 226 and 228 FCDs. Using these FCDs, the Blue Book would show either the whole of the site to be Grade 5 or (if the cut-off point were between 225 and 226, rather than between 224 and 225) the whole of the site, with the exception of the small 225 FCD area, to be Grade 5. It was, however, common ground between the parties that Grade 5 was inappropriate: the claimant said that the land was Grade 3b, and the acquiring authority Grade 3a. In view of this, we do not think that any weight would have been attached to the Blue Book classification by reference to soil wetness. Instead, a subjective or interpretative method would have been used, taking account of the descriptions of the different grades.
Neither the description of subgrade 3a nor that of subgrade 3b fit Ashton Moss, because each of them requires the land to be capable of producing moderate yields of cereals. The evidence shows that the soil was too wet to bear the machinery conventionally used in the production of cereal crops. It was suggested by Mr Steele that pumped drainage could be used to lower the level of the water table and thus enable cereal crops to be grown. However, he was unable to say what reduction in the water table was required or what such a scheme would involve. The fact is that the wetness and load-bearing capacity of the land were substantial limitations. It could grow market garden crops well, but, beyond this, its capabilities were limited. Grade 2 land is land “with minor limitations”. Grade 3 land is land “with moderate limitations”. Grade 4 land is land “with severe limitations”. Upon the evidence, the limitations of this land were such, in our view, that it was properly to be regarded as nearer to Grade 4 than to Grade 2 in terms of these generalised descriptions. That being so, we think that it would not have been held to be among “the best and most versatile land” (Grade 1, 2 and 3a) within the terms of the policy in Circular 16/87 and PPG 7. That was the conclusion of the inspector, accepted by the Secretary of State, at the 1992 inquiry. In the no-scheme world, we conclude, the objection on agricultural policy grounds to its development that MAFF and Tameside would have advanced would not have been sustained.
Having said that, however, we would add that the ability of the land to produce market garden crops, and the fact that Ashton Moss sustained a number of market garden businesses, would have been seen as a material consideration that was in alignment with the green-belt policy objective of keeping the land open. The draft local plan, updated in 1986, contained proposals to safeguard the Moss as a crop-growing area. This objective would not, we think, have been a decisive consideration. The decisive matter was green-belt policy. But it would, in our view, have formed part of the reasoning in this way against development in the no-scheme world.
Highways
The acquiring authority suggested that in the no-scheme world permission would have been refused on highway grounds. Mr Corbett identified two respects in which, in his view, the traffic impacts of the development would have been regarded as unacceptable. The first was on the principal routes to the north and south, the A627 and the A6017. The second was on Wellington Road/Penny Meadow as the result of the partial completion of the Ashton Northern bypass.
The M66 Denton to Middleton section was promoted by the Department of Transport on the basis that it would, overall, provide environmental gain; that many of the existing roads, with a large number of accesses, junctions and frontage houses, were unsuitable for existing and forecast traffic flows, even if, theoretically, there was sufficient capacity to meet demand, and that the road network was inadequate as a system of through traffic. The inspector at the 1986-87 inquiry broadly accepted these justifications, and he accepted the evidence of Oldham and Tameside Metropolitan Borough Councils that improvement of the existing road system would be impossible without the widespread destruction of property.
The parties are agreed that in the no-scheme world the road network would have remained the same as it was before construction of the motorway. Mr Skellern suggested, however, that localised improvements would have been carried out. It appears to us that there could be difficulties in implementing the sort of improvements that he referred to, but, in the absence of detailed evidence, particularly in relation to junctions, we are unable to come to any concluded view. We are not satisfied, however, that they would offer the prospect of any significant amelioration of the unsatisfactory conditions on any of the routes. The inadequacies of the existing network were clear to us. It consists of old urban roads, substantially built up along the frontages, with frequent and inadequate junctions, concentrations of pedestrians at a number of points, and parked vehicles. For the most part, traffic is not free-flowing.
We are not satisfied, on the evidence, that a refusal on the grounds of impact on the A627 and A6017 would have been sustained. The evidence is that the links on each of these roads would have a design capacity of between 2,200 and 2,500 vehicles per hour. In the evening, peak traffic counts show a flow of 2,400 on the A6017, and Mr Corbett’s assessment (which Mr Skellern accepts) is that 20% of the 1,000 vehicle movements generated by the development would be on this road for part of its length. These extra 200 vehicles would increase the flow to 2,600, but this would be within the practical capacity of the links (2,640 to 3,000 per hour). The evidence shows that on the A627 the two-way traffic flow in the evening peak hour is about 1,400 vehicles, and Mr Corbett estimated that 200 vehicles from the development would use this road. This increase would clearly be well within the capacity of the links.
That there is congestion on these routes appears to us to be clear, and by inference this is because of inadequate junction capacity. We have no evidence, however, upon which to judge the capacity of particular junctions on these routes, or what might have been done to improve them. As a consequence, we are unable to conclude that in the no-scheme world a refusal on the ground of traffic impact on these routes would have been sustained. It might have been, but we cannot say that it would.
The experts disagreed on the journey time from Ashton Moss to the nearest point on the motorway system at the M67 junction at Denton. Mr Corbett said the typical journey time for the 4.5km was 15 to 20 minutes off-peak and 30 minutes at peak periods. Mr Skellern put the figures at 10 to 15 minutes and 20 minutes respectively. These figures, in our view, are likely to encompass the range of normal journey times. To the north, the motorway would in the no-scheme world have been 11km away. The evidence suggests that delays experienced in peak hours would progressively extend to off-peak hours also. Bearing in mind the appearance and nature of the roads as well as these journey times, we are in no doubt that the perception of Ashton Moss would have been as a site having poor accessibility to the motorway network.
In the no-scheme world, the primary function of the Ashton Northern bypass would have been to provide access to the development. At such time as it was completed up to Wellington Road, it would have increased traffic substantially on Wellington Road and Penny Meadow. Mr Corbett said that this would have justified refusing permission. We are not satisfied that this is so. The increases would have been less than in the scheme world, and although we think it likely that in the no-scheme world, the completion of the ANB eastwards to the A670 would have seemed a somewhat remoter prospect than in the scheme world, we are not satisfied that the consequences of the delay in its completion would have been regarded as unacceptable.
Scheme 2
Scheme 2, comprising the redevelopment of the frontage land along Manchester Road, was put forward by the claimant as a form of development that would have resulted, in the no-scheme world, in the absence of a wider development of Ashton Moss, from the184 redevelopment of the Snipe Colliery site. The redevelopment of Snipe Colliery that would have been permitted, it says, would have been retail, and this would have required new junction arrangements on Manchester Road, with land being taken from the northern side. The opportunity would have been taken to rationalise the uses on the north side of the road, with Grasmere Lodge nursing home being replaced by a hotel, and two garden centres replacing the existing Oldfield’s and Gent’s buildings.
Section 17 certificates were granted for Snipe Colliery for A1 retail use, leisure, car showrooms, and an extension to the Celestica factory. Those certificates do not require it to be assumed, for the purposes of the present reference, that planning permission would have been granted for such development in the no-scheme world, but we think it highly probable that it would have been. We accept also that junction improvements on Manchester Road would have been required, and while we think that these could physically have been accommodated on the Snipe Colliery site, this would have required the demolition of buildings, and there would have been a good argument for Manchester Road to be widened on the north side with a rationalisation of the frontage uses. We think it likely, as a consequence, that the uses encompassed in scheme 2 would have been permitted. We think, however, that the council would have insisted upon a layout that effectively shut off from development the area of Ashton Moss to the north (with the exception of the section 17 land, which we consider below). The redevelopment of the Manchester Road frontage, lying as it did in the green belt, would only have been considered acceptable if it improved the appearance of the frontage and protected the open land behind from future encroachment.
Scheme 3
Scheme 3 is the redevelopment of the section 17 land. Three alternative developments are put forward: B2 use accessed from Rayner Lane and Katherine Street; B1 and B8 uses accessed from Manchester Road opposite Birch Street; and B1 and B8 uses accessed from Manchester Road via the Scheme 2 access road, with a golf course and driving range to the north.
All these alternatives would require the grant of planning permission going beyond that to be assumed by virtue of the section 17 certificate, although it is a matter of dispute between the parties whether the use of Rayner Lane and its improvement to a standard suitable for access to a B2 development would require planning permission. The claimant argues that the planning permission to be assumed by reason of the section 17 certificate implies the acceptability of at least one means of access. The acquiring authority contend that, in the assumed no-scheme world, with planning permission granted for the strip of motorway land, the planning authority would refuse permission for any of the accesses in order to prevent the implementation of a permission that it would perceive to have been a mistake.
It follows from our conclusion on scheme 1 that we do not consider that planning permission would have been granted for the development specified in the section 17 certificate. The certificate is the result, in our view, of a wholly inadequate consideration by Tameside of the factors that would have applied in the no-scheme world. Moreover, the concept of development of the section 17 certificate land alone — on the strip of land reserved for the motorway across the middle of the Moss — is plainly nonsensical. Had the acquiring authority appealed to the Secretary of State under section 18, we have little doubt that the appeal would have been successful. No explanation was offered as to why they had not appealed.
Nevertheless, for the purpose of these proceedings, we are required to assume that planning permission would have been granted for the development specified in the certificate. We have rejected the argument, however, that because of the certificate we ought to conclude that planning permission would be granted on adjoining parts of the Moss. Equally, we think it would be wrong to envisage the local planning authority seeking to prevent the implementation of the permission to be assumed under the section 17 certificate. The proper assumption, in our judgment, is that the authority would determine any application for access purely upon its own merits and without regard to what might be seen as the desirability either of facilitating or of frustrating the development to be assumed under the section 17 certificate.
In order to serve a B2 development on the section 17 land, Rayner Lane would have needed upgrading by the provision of proper foundations and surfacing over a length of about 500m. Its status was as a road used as a public path. It was an unsurfaced track that provided private access to the horticultural uses on the Moss, an access to Moss Side Farm and also to the BBC and IBA aerial sites. Much of the Moss could, however, be more readily accessed from Moss Lane, which ran northwards from Manchester Road. Our impression is that, with the exception of a short length at the Richmond Street end, this part of Rayner Lane had little vehicular use. In addition, it provided a footpath from east to west across the Moss.
The claimant contends that the upgrading of Rayner Lane would have been permitted development, under Part 9 of Schedule 2 to the General Permitted Development Order 1995, as the improvement of a private way. Approval to the means of access would have been required under the permission assumed by reason of the section 17 certificate, but, since this was the only means of access available, approval to the use of Rayner Lane could not have been refused. Reference was made to Medina Borough Council v Proberun (1991) 61 P&CR 77.
What may constitute an improvement of a private way, for the purposes of Part 9 of Schedule 2 to the GPDO, was considered by the Court of Appeal in Cowen v Secretary of State for the Environment, Transport and the Regions [2000] JPL 171. The court held that works that altered the character of the way would not constitute an improvement, and that whether they would so alter it was a question of fact and degree. While Evans LJ at p179 apparently considered the test to be whether the works would alter the status of the lane as a vehicular way, Mummery and Sedley LJJ at p177 did not suggest that the concept of the change in the character of the way was so narrowly confined. Sedley LJ said that the decision maker:
will not be constrained by any presumptive description of the character of the way: this too will be for him to gauge as a planning expert concerned both with use and environmental amenity.
The foundation and surfacing works that were required were needed to make Rayner Lane fit to perform a new function: that of providing access to serve a heavy industrial use. Mr Higginbotham envisaged a 60,000 sq ft industrial building, with 30 car-park spaces, being accessed along the lane. In our view, the works required and the change in function that they would bring about would undoubtedly alter the character of the lane, and they would therefore not amount to improvements.
Planning permission for such access would therefore have been required. The existing width of the carriageway (down to 4.6m at one point) would have been inadequate. Widening would have been required, but because of the limitations on the fence-to-fence width (down to 5.9m at one point) provision would have to have been made for passing places. We do not think that this access would have been regarded as acceptable in highway terms and we think that the planning authority would have considered the effect on the character of the lane such as to warrant refusal of permission.
Mr Higginbotham envisaged a second access to the development by means of an extension of Katherine Street across the railway. This would have required planning permission. There would, we think, have been objection to this on highway grounds because of the tight corner radii at the junction of Richmond Street and Katherine Street, and also for environmental reasons, notwithstanding that it was already providing access to industrial premises. While it might have achieved permission as a subsidiary access (as Mr Higginbotham envisaged), we do not consider that planning permission for it would have been granted if no primary access were available.
The acquiring authority questioned the viability of a B2 development on the section 17 land in view of the depth of peat that would require removal, the need for piling and the landscaping and185 noise-protection measures that would be required to comply with the conditions in the assumed planning permission. There are quite evidently considerable problems in developing this narrow strip of land, but the evidence is insufficient for us to conclude that it would not be viable.
The other versions of Scheme 3 — with B1c and B8 development accessed from Manchester Road — were advanced as forms of development that the planning authority would have regarded as preferable to a B2 development. Planning permission for the access required for them would have been granted, it is said, because the fallback development was worse. In view of our conclusion that the B2 development could not have been carried out, we can see no reason for thinking that accesses to a B1c and B8 development, which would have constituted inappropriate development in the green belt, would have been permitted. We accept, however, that if an access across the Oakdale School land were acceptable, the education authority would have been interested in relocating the school.
Scheme 4
Scheme 4 was advanced as the logical consequence of schemes 2 and 3, in view of the impact that scheme 3 would have on the green belt, the isolation of the land to the east, and the access provided from scheme 2. Since we have concluded that scheme 3 would not have been permitted in a way that would open up access to the east, and that access would be denied to scheme 3, it follows that we do not consider that scheme 4 would have been permitted.
Chances
As we have said above, we were asked by Mr Holgate to express conclusions on the chances, in the no-scheme world, of planning permission being granted. We take the view, as we have said, that it is not material to our decision to determine the degree of probability of planning permission having been granted at the valuation date. It is sufficient that we have concluded that planning permission would not have been granted for scheme 1, or for any of the accesses for scheme 3, or for scheme 4. We think that planning permission would have been granted for the uses in scheme 2, but not for the layout shown on Mr Higginbotham’s plan. Despite the view we take on the relevance of the question, so that the point can be pursued further if necessary at the substantive hearing, we will say what our conclusions are on the chances.
Our assessment is not dependent upon which of the two planning scenarios is assumed. We think, in either case, that the green-belt argument would have been so strong, and the strategic employment site argument so weak, that there would have been no realistic prospect of planning permission being granted for scheme 1 — a chance, expressed in percentage terms, of no more than 10%. We think that there was a probability of planning permission for the uses (but not the layout) of scheme 2, although the chances were less than good, perhaps 65%. In the unreal world of scheme 3, there would, in our view, have been about a 25% chance of permission for any of the accesses. Scheme 4, dependent as it would be upon scheme 3, would have only slightly less promising prospects, perhaps 20%, but there would have been no realistic prospect of any development being permitted north of Rayner Lane.
The second question is what was the probability, viewed at the valuation date, of planning permission being granted in the future. Each of the scenarios assumes that there would have been a decision by the Secretary of State. Since, for all schemes except scheme 2, this would, as we have found, have been a refusal, it would necessarily have conditioned the prospects of planning permission being granted in the future. For scheme 1, we think that the prospects would inevitably have been reduced for the near term and would not have been improved for the longer term. For scheme 3, we think that the prospects would have been reduced for both the short and the long term, and the same would go for scheme 4. If, contrary to our conclusion, the uses in scheme 2 had been held to be unacceptable, this necessarily would have diminished the near-term but not, we think, the longer-term prospects.
Decision
We determine that:
1. the only development that, in the no-scheme world, would have been the subject of planning permission granted for the reference land or other neighbouring land would have been a frontage development on Manchester Road, rationalising the two garden centres and replacing Grasmere Lodge with a hotel;
2. no development could reasonably have been expected to be the subject of planning permission granted for such land after the valuation date.
The parties are invited to make submissions on the costs of this preliminary hearing. A letter setting out the procedure accompanies this decision, which will take effect when the issue of costs has been disposed of.
Costs were subsequently agreed.
