The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an now appealed against the Court of Appeal’s overturning of the orer in its favour at first instance.
Held: (Majority: Lord Walker, Lady Hale, Lord Mance and Lord Collins; Minority: Lord Phillips, Lord Hope, Lord Brown) It was unlawful for the Council to allow the promise of funding by the third party for an unrelated project to affect its decision to take the company’s land: ‘First, the question of what is a material (or relevant) consideration is a question of law, but the weight to be given to it is a matter for the decision maker. Second, financial viability may be material if it relates to the development. Third, financial dependency of part of a composite development on another part may be a relevant consideration, in the sense that the fact that the proposed development will finance other relevant planning benefits may be material. Fourth, off-site benefits which are related to or are connected with the development will be material. They do not . . raise questions of fact and degree. There must be a real connection between the benefits and the development.’
Lord Walker said: ‘The fact that an exercise of powers of compulsory acquisition and a ‘back to back’ disposal to a developer are prearranged is unobjectionable . . But that does not mean that the proper consideration of the exercise of powers of compulsory acquisition under section 226 of the 1990 Act can be telescoped into the exercise of powers of disposal under section 233. ‘
Lord Philips (dissenting) said: ‘When considering the merits of an application for planning permission for a development it is material for the planning authority to consider the impact on the community and the environment of every aspect of the development and of any benefits that have some relevance to that impact that is not de minimis that the developer is prepared to provide. An offer of benefits that have no relation to or connection with the development is not material, for it is no more than an attempt to buy planning permission, which is objectionable in principle.’ and ‘The the real issue is which developer should be preferred by the Council . . The fact that the compulsory purchase of land owned by one or the other is involved is really peripheral. Each purchased its land in the hope of being able to use it for the purpose of the development. Each shares the intention that its land should be used for the development. In resisting the compulsory purchase of its land each is motivated by commercial rivalry, not by any objection to the land being used for the proposed development. It would be unfortunate if the rigid application by analogy or principles of planning law were to rob the local community of the additional benefit of the redevelopment of the RHS. I have not found it necessary to reach such a result.’
Judges:
Lord Phillips, President, Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Collins
Citations:
[2010] UKSC 20, [2010] RVR 237, [2010] 20 EG 144, [2010] PTSR 1103, [2010] 2 WLR 1173, [2011] 1 AC 437
Links:
SC, SC Summ, Bailii, Bailii Summary, WLRD, Times
Statutes:
Town and Country Planning Act 1990 226
Jurisdiction:
England and Wales
Citing:
Cited – Rugby Joint Water Board v Shaw-Fox HL 1973
The water board obtained a compulsory purchase order to buy agricultural land adjoining a reservoir. The land was subject to protected tenancies under the 1948 Act.
Held: (Majority) Because the land subject to notices to treat was required for . .
Appeal from – Sainsbury’s Supermarkets Ltd v Wolverhampton City Council CA 31-Jul-2009
The council wanted to exercise its powers of compulsory purchase so as to allow them to acquire the claimant’s land to go toward the completion of the development of a competitor’s proposed supermarket. The claimant sought judicial review, saying . .
Cited – Galloway v The Mayor, Aldermen And Commons Of The City Of London 26-Apr-1864
In 1863, an Act was passed authorizing the Corporation of London to make a new street and buy certain lands (including the land of the Plaintiff) and sell such parts of them as were not required to form part of the sreet. Shortly before the passing . .
Cited – Galloway v Mayor and Commonalty of London HL 1866
Lord Cranworth LC said: ‘The principle is this, that when persons embarking in great undertakings, for the accomplishment of which those engaged in them have received authority from the Legislature to take compulsorily the lands of others, making to . .
Cited – Simpsons Motor Sales (London) Ltd v Hendon Corporation (No 1) CA 1962
The use of land purchased under compulsory powers for a different purpose was ultra vires, but did not undermine the original notice to treat. There was no reason not to use a compendious description of the range of purposes for which land was to be . .
Cited – R and R Fazzolari Pty Limited v Parramatta City Council etc 2-Apr-2009
(High Court of Australia) French CJ said: ‘Private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of . .
Cited – Standard Commercial Property Securities Ltd and others v Glasgow City Council and others HL 16-Nov-2006
The claimant challenged a back to back agreement between the council and a developer where the council agreed to purchase compulsorily a plot of land against a developer’s undertaking to complete the development and indemnify the council against its . .
Cited – Regina v Westminster City Council, ex parte Monahan CA 1989
The Royal Opera House sought permission and listed building consents to carry out a re-development, extending and modernising the House raising it to international standards, and to develop the surrounding area consistently with that project. Parts . .
Cited – Simpsons Motor Sales (London) Ltd v Hendon Corporation HL 1964
The plaintiff complained of an attempt by the defendant local authority to enforce in October 1958 a CPO made several years earlier. He obtained at first instance an injunction to restrain the local authority from proceedings on the basis of an . .
Cited – Campbell v Municipal Council of Sydney PC 1925
The court looked at the council resolutions, which in turn referred to a minute of the Lord Mayor that indicated the general purpose of the council’s action.
Held: A court was able to look at surrounding papers to derive the reasons for the . .
Cited – Hanks and Others v Minister of Housing and Local Government 1963
A factor in a decision might be so insignificant that the failure to take it into account could not have materially affected the decision. There might be cases where the factor wrongly omitted was ‘insignificant’ and thus would not justify . .
Cited – Prest v Secretary of State for Wales CA 1982
Lord Denning MR said: ‘I regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressly authorised by Parliament and the public interest decisively so . .
Cited – Clunies-Ross v Commonwealth 25-Oct-1984
Austlii (High Court of Australia) Compulsory Acquisition – Land – Acquisition by Commonwealth – Power to acquire land for public purposes – Whether limited to acquisition of land needed or proposed to be used for . .
Cited – Regina v Secretary of State for Transport, ex parte de Rothschild CA 1988
The court considered the use of powers of compulsory purchase of land under the Acts.
Held: ‘In answer to counsel’s submissions as to ‘special rules’, I summarise my conclusions thus. First, I do not accept that any special rules beyond the . .
Cited – Pyx Granite Co Ltd v Minister of Housing and Local Government CA 1958
Pyx Granite had the right to quarry in two areas of the Malvern Hills. The company required permission to break fresh surface on one of the sites.
Held: Conditions attached to the planning permission relating to such matters as the times when . .
Cited – Standard Commercial Property Securities Limited for Judicial Review of A Decision Dated 26 August 1999 of Glasgow City Council OHCS 15-Aug-2000
. .
Cited – Tesco Stores Ltd v Secretary of State for the Environment and Others HL 11-May-1995
Three companies had applied for permission to build retail food superstores in Witney. The Inspector had recommended Tesco’s proposal, but the respondent rejected it. Tesco’s had offered to provide by way of a section 106 agreement full funding for . .
Cited – Newbury District Council v Secretary of State for the Environment HL 1981
The grant of a temporary planning permission did not operate to cancel an existing established use. A planning condition requiring removal of hangars was invalid because it did not fairly or reasonably relate to the permitted development. The grant . .
Cited – Regina v Plymouth City Council, ex parte Plymouth and South Devon Co-operative Society CA 1993
A supermarket operator was seeking to overturn planning consents granted to two rivals, and argued that the section 106 agreements were not material considerations unless they passed the necessity test.
Held: It was sufficient, on the basis of . .
Cited – Westminster Renslade Ltd v Secretary of State for the Environment 1983
It was not legitimate for an authority to refuse a planning application because it did not contain provisions for the increase of the proportion of car-parking space subject to public control: the absence of a benefit was not a reason for refusing . .
Cited – Regina v Westminster City Council, ex parte Monahan CA 1989
The Royal Opera House sought permission and listed building consents to carry out a re-development, extending and modernising the House raising it to international standards, and to develop the surrounding area consistently with that project. Parts . .
Cited – Bradford City Metropolitan Council v Secretary of State for the Environment CA 1986
Lloyd LJ said that it has usually been regarded as axiomatic that planning consent cannot be bought or sold. Conditions requiring off-site roadway benefits were unreasonable and it was suggested that it would make no difference if they were included . .
Cited – Sovmots Investments Ltd v Secretary of State for the Environment 1977
. .
Cited – Brighton Borough Council v Secretary of State for Environment 1978
. .
Cited – Sosmo Trust Ltd v Secretary of State for the Environment 1983
Woolf J accepted that the consequences of the financial viability or lack of financial viability of a development were a potentially relevant factor in a planning assessment: the true question was not whether a development would be viable but what . .
Cited – Sovmots Investments Ltd v Secretary of State for the Environment HL 28-Apr-1977
The section in the 1881 Act does not apply to a quasi-easement because ‘When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. . .
Cited by:
Cited – Wright, Regina (on The Application of Wright) v Resilient Energy Severndale Ltd and Another SC 20-Nov-2019
W challenged the grant of planning permission for the change of use of agricultural land to allow erection of a wind turbine, saying that the authority had taken into account a promise by the land owner to run the scheme as a community development . .
Lists of cited by and citing cases may be incomplete.
Planning
Updated: 09 May 2022; Ref: scu.414897
