[2024] UKUT 00146 (LC)

In assessing the amount of compensation payable in accordance with rule 2 of section 5 of the 1961 Act, section 14(2)(a) provides that account may be taken of any planning permission in force on the valuation date for development on the reference land or other land. Section 14(3) provides that it may also be assumed that planning permission was in force on the valuation date for ‘appropriate alternative development’, as defined in section 14(4) which can constitute development on the relevant land alone, or with other land. This means development for which, on the assumptions in section 14(5) but otherwise in the circumstances known to the market on the valuation date, planning permission could reasonably have been expected to be granted on an application determined on or after the valuation date.

As far as relevant to this appeal, the assumptions required to be made by section 14(5) are that the scheme underlying the acquisition had been cancelled on the launch date, that no action has been taken by the acquiring authority wholly or mainly for the purposes of the scheme, and that there is no prospect of the same scheme, or any other project to meet the same or substantially the same need, being carried out in the exercise of a statutory function, or by the exercise of compulsory purchase powers.

Section 17 of the 1961 Act enables the acquiring authority or the landowner to apply to the local planning authority (or, in this case, the body with power to issue the certificate) for a CAAD stating that there is, or is not, development that is appropriate alternative development in relation to the land acquired, and describing such development, if any.

Section 18(1) provides the appellant with a right of appeal to the Tribunal. In such an appeal, section 18(2) provides that we must consider the matters to which the certificate relates as if the application under s.17 had been made to the Tribunal in the first place, and secondly, we must confirm the certificate, or vary it, or cancel it and issue a different certificate in its place as we consider appropriate.

The Tribunal, in Secretary of State for Transport v Bleep UK PLC [2022] UKUT 331 (LC), held that it was required “to consider the matter afresh, rather than reviewing [the local planning authority’s] certificate” and that the appeal must be decided “in accordance with ordinary planning principles” (paragraphs 14 to 15).

When dealing with an application for planning permission, the authority shall have regard to the development plan, so far as material, and local finance considerations, so far as material, and any other material considerations, (section 70(2) Town and Country Planning Act 1990 as amended). By virtue of section 38(6) of the Planning and Compulsory Purchase Act 2004, if regard is to be had to the development plan for this purpose, the determination must be made in accordance with the plan unless material considerations indicate otherwise. Further, when considering any application for planning permission for development in a conservation area, the authority shall pay special attention to the desirability of preserving or enhancing the character or appearance of the conservation area.

Policies in the development plan should be interpreted objectively in accordance with the language used, read in their proper context; they are not analogous in nature or purpose to statute or contract. Many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of planning judgment for the authority: Tesco Stores Ltd v Dundee City Council [2012] PTSR 983 at [18] and [19]. Even though the interpretation of planning policy is a matter of law, planning policies do not normally require intricate discussion of their meaning, and there is an expectation that the interpretation will be straightforward, without the need for undue or elaborate exposition: R (Mansell) v Tonbridge and Malling BC [2019] PTSR 1452 at [41].

It is not unusual for development plan policies to pull in different directions; in such cases the planning authority must make a judgement bearing in mind such factors as the importance of the policies which are complied with or infringed and the extent of the compliance or breach, and reach a judgment on whether the proposal accords with the development plan as a whole: R Rochdale MBC ex p Milne (no 2) [2001] Env LR 22 at [48]-[49].

In determining a section 18 appeal, “the proper approach” for the Tribunal is “to determine what a reasonable planning authority, correctly addressing both law and policy, could have been expected to decide at the valuation date”. This is taken to be a notional reasonable planning authority rather than any particular planning authority; and “evidence of actual decisions made by the planning authority will be relevant and no doubt persuasive” (paragraphs 49 to 50 of Urban Edge Group Ltd v London Underground Ltd [2009] UKUT 103 LC).

By virtue of section 17(5)(b), when granting a certificate, the Tribunal must give a general indication of any conditions to which any planning permission could reasonably have been expected to be subject and of any pre-condition, such as a planning obligation, that could reasonably have been expected to be met.