[2025] UKUT 00007 (LC)

The legal framework for the preliminary issue is provided by sections 14, 17 and 18 of the Land Compensation Act 1961. In assessing the value of land for the purpose of determining the amount of compensation payable for its compulsory acquisition, section 14(3) provides that it may be assumed that planning permission was in force on the valuation date for any development that is appropriate alternative development, as defined in section 14(4). That is, 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 they are relevant to these appeals, the assumptions required to be made by section 14(5) are that the scheme underlying the acquisition had been cancelled on the launch date (which in these cases is agreed to have been 25 November 2013), 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 enables the acquiring authority or the landowner to apply to the local planning authority for a CAAD stating that there is, or is not, development that is appropriate alternative development in relation to the land acquired and describing it. Section 18(1) provides a right of appeal to the Tribunal.

On any appeal under section 18, the Tribunal must consider the matters to which the certificate relates as if the application had been made to it in the first place, and must confirm, vary, or cancel the certificate and issue a different certificate in its place as it considers appropriate (section 18(2)).

As Lewison LJ explained in Leech Homes Ltd v Northumberland County Council [2021] EWCA Civ 198, at [21], the direction to proceed as though the application for a certificate had been made to the Tribunal in the first place means that we are “exercising an original jurisdiction rather than a review jurisdiction”. In the same paragraph the learned Lord Justice approved what we had previously said about the Tribunal’s role in the same case at first instance ([2020] UKUT 150 (LC)):

We must determine the preliminary issue applying ordinary planning principles. These require that we have regard to the development plan, so far as material, and make our determination in accordance with the plan unless material considerations indicate otherwise (section 38(6), Planning and Compulsory Purchase Act 2004). As the Tribunal (George Bartlett QC, President) suggested in Urban Edge Group Ltd v London Underground Ltd [2009] UKUT 103 (LC), at [50], in making our determination “evidence of actual decisions made by the planning authority will be relevant and no doubt persuasive”. The Supreme Court has made clear at an earlier stage in these proceedings that if we consider that the City Council’s own decisions on any of the CAAD applications are of assistance on the question of whether planning permission could reasonably have been expected to be granted, we are not prevented by the assumptions required by section 14(5) from taking those decisions into account (Secretary of State for Transport v Curzon Park Ltd & Ors [2023] UKSC 30, at [60]-[61]).