Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment (Newell v Secretary of State for the Environment)

For a certificate of appropriate alternative development under the Land Compensation Act 1961, the relevant date is the date on which the land becomes proposed to be acquired under section 22(2), not the later date of entry. In a section 22(2)(a) case, that is the date of publication of the compulsory purchase order notice. The statutory counterfactual treats the acquisition proposal as cancelled at that date. The authority otherwise considers the circumstances then existing. It need not reconstruct circumstances before the underlying scheme was conceived or eliminate every earlier fact or policy associated with it. The no-scheme valuation principle applied by the Lands Tribunal does not enlarge the counterfactual at the certification stage.

Two landowners applied for certificates of appropriate alternative development concerning land at Sundorne, Shrewsbury, required for the proposed A49 Shrewsbury by-pass. The local planning authority issued certificates contemplating residential and industrial development. On appeal under section 18 of the Land Compensation Act 1961, the Secretary of State substituted negative certificates.

The respondents challenged those decisions under section 21. Dyson J decided in their favour on the relevant date and on the scope of the statutory counterfactual. The Secretary of State appealed. The Court of Appeal had to determine whether the relevant date was the section 22(2)(a) notice date or the date of entry, and what circumstances had to be disregarded when assessing the hypothetical planning permission.

The appeals were allowed unanimously. The Secretary of State’s decisions were restored, with costs in the Court of Appeal. There was no order as to costs below, and leave to appeal to the House of Lords was granted.

1. Relevant date. The date for the section 17(4) inquiry is the date of the applicable proposal identified in section 22(2). For section 22(2)(a), it is the date of publication of the notice of the compulsory purchase order, not the date of entry. Jelson v MHLG [1970] 1 QB 243 concluded the issue as a matter of statutory construction and was followed. Its reasoning was not undermined by the later valuation decision in Birmingham Corporation v West Midland Baptist (Trust) Association [1970] AC 874. The contrary distinction in Robert Hitchins Builders Ltd v Secretary of State for the Environment (1978) 37 P&CR 140 was overruled.
2. Scope of the counterfactual. The words if it were not proposed to be acquired require the acquisition proposal, and the proposal underlying it as it stood at the relevant date, to be disregarded. The authority must otherwise assess the circumstances existing on that date. The provision does not require the inquiry to return to a time before the underlying scheme was conceived. The common phrase in section 22(2) has the same meaning across paragraphs (a), (b) and (c).
3. Cited authorities. Grampian Regional Council v Secretary of State for Scotland (1983) 67 P&CR 540 did not determine the present issue. It concerned a different argument and, insofar as relevant, supported disregarding the acquisition proposal and the planning policies underlying it at the relevant date. Margate Corporation v Devotwill [1970] 3 All ER 864 was confined to evidence concerning future access and did not govern policies affecting the land itself.
4. Pointe Gourde. The no-scheme principle applicable to the Lands Tribunal’s valuation did not require the Secretary of State to conduct the broader scheme analysis at the certification stage. Identification of the scheme for valuation is a question of fact for the Lands Tribunal, and a certificate based on a different assessment could not bind that tribunal under section 15(5).

• Court of Appeal: In [1998] EWCA Civ 976, the appeals were allowed. The Secretary of State’s decisions were restored, with costs in the Court of Appeal.
• High Court of Justice, Queen’s Bench Division: Dyson J heard applications under section 21 to quash the Secretary of State’s decisions. The judgment favoured the respondents on the relevant date and on the scope of the statutory counterfactual.