Bridgend County Borough Council v Boland & Anor

The Respondents (“Mr & Mrs Boland”) owned 0.655 hectares of arable land adjacent to Pen-y-fai Church in Wales Primary School, Heol Eglwys, Pen-y-fai, Bridgend (“the Boland Land”), which the Appellant local authority (“the Council”) acquired under a compulsory purchase order and subsequent general vesting declaration. A new school has now been built on land including the Boland Land.

Mr & Mrs Boland were entitled to compensation, calculated in accordance with the provisions of the Land Compensation Act 1961. The Council calculated that compensation on the basis that, if the replacement school had not proceeded, the Boland Land would have had no more than agricultural value. However, Mr & Mrs Boland considered that, in those circumstances, the land would have had a higher value because they would have been granted planning permission for residential development; and they applied to the Council under section 17 of the 1961 Act for a certificate to that effect.

The Council refused to grant a certificate in those terms, giving only a negative certificate that planning permission would not have been granted for any development other than for educational facilities for which the land had been acquired.

However, Mr & Mrs Boland appealed to the Lands Chamber of the Upper Tribunal (“the Upper Tribunal”) where, on 7 July 2016, His Honour Judge Jarman QC and A J Trott FRICS allowed the appeal and varied the certificate to certify that, if the Council had not proposed to use its compulsory purchase powers to acquire the southernmost 0.46 hectares of the Boland Land (“the Reference Land”), planning permission would have been granted for the residential development of that land.

The Council, with the permission of the Upper Tribunal itself, now appeals against that decision.

Before us, Wayne Beglan and Tara O’Leary of Counsel appeared for the Council, and George Newsom of Counsel for Mr & Mrs Boland; and I thank them all for their assistance.

Statutory references in this judgment are to the 1961 Act, unless otherwise indicated.

The relevant provisions for determining the amount of compensation for the compulsory acquisition of interests in land are found in Part II of the 1961 Act, as amended. Section 5 sets out rules by which compensation is to be assessed, including, as section 5(2), the general rule that the interest is to be valued on an open market basis. That is, however, subject to various “disregards” of actual or prospective development (section 6 and Schedule 1). The assessment is based on various “planning assumptions” set out in sections 14-16, which recognise that a fair assessment of compensation should take into account, not only any planning permission already granted, but also grants in respect of the relevant land that might have been made but for the scheme proposed in the public interest. The relevant provisions have been substantially amended by section 232 of the Localism Act 2011, but this appeal concerns the assumptions as they stood before those amendments and this judgment is restricted to consideration of the provisions in that earlier form.

The assumptions set out in sections 14-16 have to be read together with section 17, which falls within Part III of the 1961 Act. It provides (so far as relevant to this appeal):

Section 17(7) is also worth noting. It provides:

A certificate under section 17(4) is referred to as a “certificate of appropriate alternative development” (“CAAD”). A certificate issued under section 17(4)(a) is known as a “positive certificate”; and one issued under section 17(4)(b) as a “negative certificate”. The effect of such certificates is dealt with in sections 14-16. When it comes to assessing compensation, a negative certificate does not require the assumption to be made that planning permission would necessarily be refused for any other development: it simply has to be taken into account (section 14(3)). However, where there is a positive certificate, section 15(5) provides for a mandatory assumption, in the following terms:

Two matters in relation to section 17(4) were common ground before us.

The relevant date for the determination of an application for CAAD is the date of the notice that the interest in land is proposed to be acquired by an authority possessing powers of compulsory acquisition as defined in section 22(2), i.e. in this case 30 September 2005, the date the notice of the relevant compulsory purchase order was published.

“Relevant land” for these purposes is the land for which compensation for compulsory acquisition is to be assessed (see, e.g., J S Bloor (Wilmslow) Limited v Homes and Communities Agency [2017] UKSC 12 at [17] per Lord Carnwath of Notting Hill JSC).

Section 17(4) was considered by the House of Lords in Fletcher Estates (Harlescott) Limited v Secretary of State for the Environment; Newell v Secretary of State for the Environment [2000] 2 AC 307 (“Fletcher Estates”), in which Lord Hope of Craighead gave the only substantive speech with which the rest of the House agreed. The appeal concerned a scheme for the improvement of the A49 trunk road east of Shrewsbury. The appellant developers owned land on the proposed route which, from the adoption of the Shrewsbury Urban Area Local Plan in June 1985, was protected and thus shown as unavailable for any other development. The notice of the proposed compulsory purchase order was published on 30 January 1986.

The appeal focused on the requirement of section 17(4) that the planning authority must issue its opinion regarding planning permission in respect of the land in question as “if it were not proposed to be acquired by the authority possessing the compulsory purchase powers.” It was common ground between the developers and the Secretary of State that this required the authority to disregard the publication of the notice of the proposed compulsory purchase order. Lord Hope agreed (see page 319B-C). The issue for the House, he said, was “how much else must the local planning authority disregard when making its assumption?” (page 319C-D).

The Secretary of State accepted that, if the planning status of the land has to be considered on the basis of an assumption that there is no proposal to acquire the land compulsorily, the proposal underlying that acquisition must also be disregarded. The assumption must extend to the whole of the “underlying proposal” for these purposes, including in that case the local plan policy that protected the route of the road. That policy was essentially part of the same proposal as that which had led to the compulsory purchase order (see page 319D-F).

On the other hand, it was submitted on behalf of the developers that the assumption required the authority to disregard, not only the underlying proposal at the relevant date, but also all of the effects of that proposal which had arisen before that date; in other words, to consider what would have happened if the proposal had never been brought forward. That assumption applies in the assessment of compensation under Part II of the Act, where, as well as the statutory disregard of any decrease in value of the subject land due to the scheme underlying the acquisition, any increase also has to be disregarded (Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565 at page 572). In other words, for the purposes of that assessment of compensation, there should be an assumption that the underlying scheme had never been (“the no scheme assumption”).

It was contended by the developers that, in the circumstances of Fletcher Estates, had there been no scheme, other land in the immediate area of the developers’ land would have been released for housing prior to the relevant date; and the question of whether the developers’ land would have been granted planning permission for residential development at that date should be considered in the light of that assumption.

However, in the context of section 17(4), Lord Hope favoured the “cancellation assumption”, for which the Secretary of State contended, over the “no scheme assumption”. He said (at page 323C-D):

He considered that the flaw in the developers’ submission was that “to allow reliance on the underlying public requirement to determine the question would lead to the issue of a negative certificate in every case” (page 324H). This reflects section 17(7), which provides that a CAAD must not be refused on the ground that it would be contrary to the relevant development plan (see paragraph 10 above).

Lord Hope therefore considered (at page 324D-F) that:

The relevant facts are not in dispute.

Pen-y-fai Primary School lies on the western edge of the Pen-y-fai settlement. To the east, is residential development. To the west, is agricultural land, falling within the Court Coleman Landscape Conservation Area. The Boland Land immediately abuts the original school site to the west.

Until the adoption of the Bridgend Unitary Development Plan (“the Bridgend UDP”) on 12 May 2005, the development plan for the area was the Ogwr Borough Local Plan (“the Local Plan”), which showed the settlement boundary for Pen-y-fai as including the existing school site but excluding the Boland Land. Paragraph 8.5.2 of the Local Plan stated that, with immaterial exceptions, development would not be permitted in the countryside, i.e. outside the settlement boundary.

By 2001, the Council as local education authority wished to expand the school, extending the site onto the Boland Land. That year, the Council published the statutory deposit of the Bridgend UDP. Policy SC5 allocated land for educational facilities. The supporting text stated that the proposals map indicatively showed the general location of such facilities but that the exact land take and site boundaries had not been specified. Policy SC5(15) specifically allocated the Boland Land for the provision of improved educational facilities.

Policy EV12 generally proscribed development outside specified settlement areas. However, that had to be read with Policy EV1, which stated that development in the countryside would be strictly controlled; but “countryside” was defined as areas of land lying beyond designated settlement boundaries (as defined in, amongst other policies, Policy EV12) “and sites allocated for development in the UDP”. By Policy H4, “small scale sites” (defined as those accommodating less than ten dwellings) were permitted within the boundary of smaller settlements.

The proposals map showed the settlement boundary of Pen-y-fai, a specified settlement area, as re-drawn to include the Boland Land, as well as another field to the north of the proposed extended school site also then used for agriculture (“the North Field”). This land was not specifically allocated in the plan; but, given the size of the plot and the terms of Policy H4, it was highly likely that it would be developed with housing.

Pen-y-fai Woodland Trust objected to the North Field being included in the settlement boundary. A public inquiry was held in 2002, and the inspector’s report was published in May 2003. In respect of this objection, the inspector recommended no modification be made to the plan. The report said:

On 13 January 2004, the Council’s education authority applied for planning permission to build a new school on the existing site and the Boland Land, which was duly referred to the Council’s Planning and Development Committee (“the Planning Committee”). So far as the UDP was concerned, the Council had not yet responded to the inspector’s recommendations. The officer’s report to the Committee recommended the grant of planning permission. It concluded as follows:

In parallel with that application, developers applied for planning permission for the development of land owned by Mr & Mrs Boland, including the Boland Land field, in the form of a nursing home. That was refused by the Council on 20 January 2004, but the developers appealed to the National Assembly of Wales, which appointed an inspector to determine the appeal. The inspector published his decision on 18 May 2004. In refusing the appeal, he said:

The Council issued its statement on the inspector’s recommendation in respect of the Bridgend UDP in June 2004; and, after further modifications were published later in that year, the UDP was adopted on 12 May 2005. It included each of the policies referred to above. The supporting text in respect of Policy EV12 indicated that all settlement boundaries had been reviewed during the preparation of the UDP and had been independently scrutinised at the inquiry.

On 11 February 2015, Mr & Mrs Boland applied for a CAAD in respect of the Boland Land. In their application, they indicated that, absent the proposed school development, that land would have been ripe for residential development in accordance with Policy H4. At the relevant date, they said that a development of the Reference Land providing nine dwellings could have been contemplated; with a further small scale development of five dwellings on the northern residue 0.19 hectares (“the Northern Boland Land”) being contemplated after a further period of five years.

That application was assigned to Ms Nicola Gandy, a Principal Planning Officer with the Council, who considered it on a “no scheme assumption” (see paragraph 13 and following of her statement dated 16 October 2015). She considered that, in a “no scheme world”, the Boland Land would have remained outside the settlement boundary and thus in countryside (paragraph 14); and, as the boundary was only altered to accommodate the proposed school, on the “no scheme assumption”, the land would be situated outside the settlement boundary (paragraph 15). That is reflected in her report dated 26 May 2015 to the Committee, in which she said:

Mr & Mrs Boland appealed the certificate to the Upper Tribunal, under section 18 of the 1961 Act. The appeal came before a constitution of the tribunal comprising Judge Jarman and Mr Trott, who, in a decision dated 7 July 2016, allowed the appeal. They granted a positive certificate to the effect that planning permission would have been granted for development of the Reference Land in the form of nine houses, subject to various conditions.

It is that decision which the Council now challenges.

To clear the decks:

As a result of the order granting permission being sent to the wrong address, the appeal was made out of time. I would grant an appropriate extension of time.

There were two issues before the tribunal. One concerned highways. That is no longer is issue – the Council now accept the tribunal’s decision in relation to that ground – and I need say nothing further about it.

It is common ground before this court that, before the Upper Tribunal, to succeed, Mr & Mrs Boland had to establish – on the balance of probabilities, applying the principles set out in Fletcher Estates, and on the basis that the proposed new school was cancelled in respect of the Reference Land – that planning permission would have been granted for housing. That was the basis upon which the Upper Tribunal addressed the matter (see paragraph 24 of its decision).

Although approached in a number of ways, Mr Beglan essentially relies upon a single and narrow ground. He submitted that the cancellation assumption required the Council (and, in its turn, the Upper Tribunal) to disregard not only the compulsory purchase order and Policy SC5(15), but also the re-drawing of the Pen-y-fai settlement boundary insofar as that included the Reference Land within the settlement. Policy SC5(15) and the re-drawing of the settlement boundary to that extent are inextricably linked, the only reason for re-drawing that boundary being to facilitate Policy SC5(15) and the underlying policy purpose of building the new school. In support of that proposition, he relied upon the following (all emphasis in the quotations added):

The officer’s report to the Planning Committee on the application for planning permission for the new school, which said that “the site is allocated as land reserved for educational facilities in the deposit UDP with the settlement boundary and landscape area amended accordingly” (see paragraph 28 above).

The inspector’s decision on the application for planning permission for a nursing home, which said: “The reason for the proposed modification to the settlement boundary in the UDP is to permit the provision of improved educational facilities in accordance with Policy SC5(15) of the UDP” (see paragraph 29 above).

Ms Gandy’s report to the Planning Committee on the application by Mr & Mrs Boland for a CAAD, in which she said: “The settlement boundary was moved to include this area of land in the UDP for the purposes of the school only” (see paragraph 32 above).

Ms Gandy’s evidence before the Upper Tribunal, and notably the following:

Paragraph 36 of the Upper Tribunal’s own decision:

Ably as that submission was made, I am unpersuaded by it, for the following reasons.

As I have described, in reporting to the Planning Committee on the application here, Ms Gandy adopted the “no scheme assumption”, as opposed to the “cancellation assumption”. She concluded that, if the scheme for the new school had never been proposed, then the settlement boundary would never have been re-drawn to incorporate the Boland Land. She therefore proceeded to disregard the drawing of the boundary in the UDP. I accept that the approach taken by Ms Gandy yielded – or could yield – the result to which she came.

However, as Fletcher Estates made clear (and as recently confirmed in Bloor at [17]), that approach was wrong. In considering a section 17 application, a decision-maker must proceed on the basis that the relevant scheme for development in the public interest is cancelled, so far as the land that is the subject of the proposed compensation assessment is concerned, at the date of the notice that it is proposed to acquire the land compulsorily. The “no scheme world” is confined to the assessment of compensation under Part II of the 1961 Act, which involves the consideration of broader factors than does section 17 in Part III (see paragraph 16 above).

In this case, had the proposed scheme for the new, extended school been cancelled, an application under section 17 in respect of the Boland Land or the Reference Land alone would have had to disregard both the fact of acquisition and Policy SC5(15) which specifically allocated the land for use as an educational facility, and which had no function beyond the acquisition scheme. That seems to me to be axiomatic. I was unimpressed by Mr Beglan’s (very much) back-up submission that, if the re-drawing of the settlement boundary did not properly fall within the scope of the “underlying proposal”, then neither did Policy SC5(15). The real issue is whether the Upper Tribunal erred in concluding that the re-drawing of the boundary did fall within the scope of the “underlying proposal”.

For the reasons I have given, Ms Gandy’s analysis that it did is based upon a false premise, namely the “no scheme assumption”. The Upper Tribunal clearly approached the matter on the correct “cancellation assumption” (see paragraph 40 of its decision). However, Mr Beglan submitted that the tribunal erred in focusing upon whether the settlement boundary change was, from a planning point of view, necessary for the purposes of the proposed new school scheme. It was not necessary. By virtue of Policy EV1, Policy SC5(15) alone was sufficient to ensure that, from a policy point of view, the Boland Land was excluded from the “countryside”, and thus from the restrictive policies that apply to countryside (see paragraph 25 above); and would, in any event, obtain planning permission for education facility use. But, Mr Beglan submitted, the focus ought to have been on, not what was legally necessary, but what in fact caused the settlement boundary change.

However:

Whether a policy falls within the “underlying proposal” of a scheme is essentially a question of fact for the relevant decision-maker (in this case, the Upper Tribunal) to determine. It is a question of fact and planning judgment. The observations of Lord Nicholls of Birkenhead in Waters v Welsh Development Authority [2004] UKHL 19; [2004] 1 WLR 1304 at [55] and following (especially at [61]), on how the underlying scheme should be identified for the purposes of the assessment of compensation under Part II, with which the rest of the House agreed, are equally apposite here. In respect of matters involving planning judgment, the Lands Chamber of the Upper Tribunal has particular expertise and experience.

However, the construction of the policy itself is, of course, a matter of law. That applies to a development plan, as much as to national policy.

In the Bridgend UDP, the settlement boundary has broad policy significance, in the sense that different policies apply to land inside that boundary from the policies that apply to land outside. Generally (and subject to the Policy EV1 caveat in respect of land outside the settlement boundary allocated to a particular use by other specific policies), Policy EV12 proscribes development outside settlement boundaries. Inside the boundary, development is acceptable in principle, the circumstances in which development will be allowed being assessed by reference to criteria-based policies, including Policy H4.

The settlement boundary is tested through the rigorous statutory process that development plans involve, which includes consultation and independent examination. The incorporation of settlement boundaries into the development plan has substantial significance, given that applications for planning permission or for the renewal of planning permission are to be determined in accordance with the approved or adopted development plan for the area, unless material considerations indicate otherwise (see Section 54A of the Town and Country Planning Act 1990 and Section 38(6) of the Planning and Compulsory Purchase Act 2004, and paragraph 3.1.3 of Planning Policy Wales).

In this case, as Ms Gandy accepted in evidence before the Upper Tribunal (see paragraph 37 of the tribunal’s decision), there was nothing in the development plan to suggest that the significance of the settlement boundary to the west of Pen-y-fai, once re-drawn, was any different from the broad policy significance to which I have referred. As Mr Beglan frankly accepted, other than Policy SC5(15), there are no specific policies in the plan that restrict the use of the Boland Land and the North Field, now enclosed by the boundary.

It is noteworthy that, when objection was taken to the re-drawing of the boundary to include the North Field, the broad issue of whether changes to the boundary should simply facilitate future school expansion was raised, and the inspector recommended that no modification to the plan be made (see paragraph 26 above). On that basis, Mr Beglan did not suggest that the re-drawing of the boundary as a result of the cancellation of the new school scheme would be to exclude the North Field. He accepted – as I think he was bound to do – that, if, even prior to the new school scheme being permitted and implemented, planning permission had been sought for small scale residential development of the North Field, given Policy H4 and the absence of any policies that contraindicate residential development on that site, planning permission would have been granted.

Although there was no evidence before either the Upper Tribunal or this court in support of the proposition, for (and only for) the purposes of this appeal, I am prepared to accept Mr Beglan’s submission that it is common practice for a settlement boundary in a development plan to be drawn or re-drawn to include land that is the subject of specific allocation, that would or might be otherwise be outside the settlement. I also accept, for the same limited purposes, that, when land is given a particular planning allocation as part of a development scheme then, if that scheme is cancelled, there might be a compelling argument that, in any application for a CAAD, not only the fact of acquisition and policy allocating the site, but the policy by which the settlement boundary is fixed might be properly disregarded – because it might properly be said that that policy, so far as the inclusion of the allocated land within the settlement is concerned, has no function beyond the scheme.

However, in this case, the re-drawing of the settlement boundary to the west of Pen-y-fai was such as to include the North Field within the settlement, which re-drawing, as Mr Beglan accepts, was not part of the underlying scheme, in the sense that the North Field could have been developed with (e.g.) housing under the within-settlement Policy H4 even if the new school scheme did not go ahead.

Mr Beglan thus submitted – indeed, I think, driven to submit – that the only part of the policy that re-drew the settlement boundary that must be disregarded is that which applied, literally, around the Reference Land; but, in my view, that is a legalistic and uncompelling point. I appreciate that we are here concerned with a hypothetical and artificial world; but, if the school scheme had been cancelled, it would have been a curious result if the rounding-off North Field could have been developed with housing (and the Northern Boland Land developed with at least educational facilities), but permission for residential development of the Reference Land denied by virtue of the settlement boundary being re-drawn to exclude it and only it.

In my view, there is nothing in the development plan which compels such a conclusion as a matter of law. As I have described, it is uncontroversial that the plan fixes the boundary to include the Reference Land within the settlement and without applying any special development criteria to it over and above the Policy SC5(15) allocation. Whether the boundary drawn around the Reference Land was such as to comprise part of the underlying scheme was a matter of fact for the Upper Tribunal, using their planning judgment, as I have described.

I do not consider that the tribunal erred in law in their approach to that issue. In paragraph 36 of their decision, they properly acknowledged that the redrawing of the settlement boundary to include the Boland Land and the North Field was prompted by the proposal for a new school. That that re-draw was not necessary for the proposal to comply with the policies of the (then emerging) UDP was also, in my view, a material consideration. There is nothing in the decision to suggest that the tribunal considered that that was, in itself, determinative – otherwise the decision would no doubt have been somewhat shorter – and I reject the contention, insofar as it was made, that the weight the tribunal gave to that matter was excessive as a matter of law.

Importantly, in my view, the tribunal focused upon the development plan itself; and noted that it did not contain any policies that restricted development in any part of the land “taken into” the settlement (i.e. the Reference land, the Northern Boland Land and the North Field). If the development plan had intended the restriction for which it now contends, it could easily have made clear provision for it. In the event, it made no provision. In the circumstances, the Upper Tribunal was entitled to conclude that, as a matter of fact, the policy that re-drew the settlement boundary was not a part of the underlying scheme, as Mr Beglan contends.

For those reasons, which are essentially the same as those of the tribunal below, in my judgment, the Upper Tribunal did not err in the approach that it took, or the conclusion it reached. I would dismiss this appeal.

I agree.

I also agree.