A proposed ring road had been cancelled. The landowners applied for certificates of appropriate alternative development. The Minister confirmed the negative certificates which had been issued by the local planning authority. It was contended that the question whether planning permission might reasonably have been expected to be granted should be considered not as at the date of the section 22(2)(a) notice but as at a date before there had been any proposal for the strip of land to be used for a ring road.
Held: The owners’ appeals failed. The local planning authority must determine the question of planning permission as at the date of the notice, and in the circumstances then existing, and not by looking at events in the past. It was a question of construction after examining the meaning of the words used in section 17(4).
Lord Denning MR: ‘After the discussion we have had, I think the decision depends on this one short point under section 17 (4): what is the date at which it must be decided whether planning permission ‘might reasonably have been expected to be granted’? The Minister says it must be decided as at the date of the deemed notice to treat, that is, on September 19, 1965. At that date there was this long, narrow strip of land bordered by great housing estates on either side. At that date planning permission would not be granted for any beneficial purpose. So there should be a ‘nil certificate.’ But Wimpeys and Jelsons say that that is not that date at all. They say that the date should be some time in the distant past before there was any proposal for a ring road. At that time they might reasonably have expected planning permission to be granted, not only for the housing estates, but also for this long, narrow strip for residential development.
That issue was to be determined simply as a matter of statutory construction:
The crucial word . . . is the word ‘proposed,’ which is defined in section 22 (2): ‘For the purposes of sections 17 and 18 of this Act, an interest in land shall be taken to be an interest proposed to be acquired by an authority possessing compulsory purchase powers in the following (but no other) circumstances, that is to say-‘
(a) (put shortly) where there is an actual notice to treat; (b) (put shortly) where there is a deemed notice to treat; (c) (put shortly) where there is an offer to negotiate to purchase.
That definition shows that the word ‘proposed’ refers to the proposal contained in an actual or deemed notice to treat or in an offer to purchase. That gives a good clue to the date of the proposal. It is the date of the actual or deemed notice to treat or of the offer to purchase, as the case may be.
In the light of that definition, section 17 (4) means that the planning authority must form an opinion as to what planning permission might reasonably have been expected to be granted at the date of the actual notice to treat, or the deemed notice to treat, or the offer to purchase, as the case may be. In the present case, therefore, which is a case of a deemed notice to treat, subsection 17 (4) must be read:’…that might have been expected to be granted [at the date of the service of the deemed notice to treat] in respect of the land in question, if it were not proposed [at that date] to be acquired…’ The planning authority must form an opinion as to what planning permission might reasonably be expected at that date, namely, September 28, 1965. It must look at the position as at that date, and see, in the circumstances then existing, whether planning permission might reasonably be expected to be granted. ‘
Phillimore LJ: ‘An important factor is that, apart from the question of construction, once you start looking back, the whole exercise becomes hopelessly uncertain. Did it all result from the designation of this strip as required for the ring road? How far was the state of the land due to the appellants’ own action in building right up to the strip? Could they have avoided loss by serving notice to purchase in 1959 when the provisions of the Act of 1961 were first [enacted]? Have they really suffered any loss, or did they pay for the strip on the basis that it was blighted land? At any rate, when they acquired it they knew this to be the case. It seems to me that to look back beyond the date of the deemed notice to treat would open up a considerable filed of guesswork which would often make it impossible to give firm advice to any member of the public as to his rights. Accordingly, both as a matter of construction and on wider grounds, I would dismiss these appeals.’
Judges:
Lord Denning MR, Sachs LJ, Phillimore LJ
Citations:
[1970] 1 QB 243, [1969] 3 All ER 147
Jurisdiction:
England and Wales
Cited by:
Cited – Newell and others v Secretary of State for the Environment and Another; Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment and Another HL 17-Feb-2000
Where a certificate of appropriate development was issued for land to be acquired compulsorily, the land was to be valued at the date of the proposal to acquire it compulsorily allowing a discount for any damage to the value incurred by the long . .
Cited – Homes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .
Lists of cited by and citing cases may be incomplete.
Land, Planning
Updated: 18 July 2022; Ref: scu.235920