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

When determining appropriate alternative development under section 17(4) of the Land Compensation Act 1961, the planning authority must assume that the compulsory acquisition scheme and its underlying proposal were cancelled on the relevant date. It must assess the planning position then existing by ordinary planning principles.

The authority must not reconstruct the area's earlier planning history as though the scheme had never existed. Earlier consequences of the scheme remain part of the circumstances at the relevant date. The question is whether planning permission could then have been refused for reasons independent of the acquisition scheme. Wider historic effects may be relevant to compensation under section 9, but they do not determine the contents of the certificate.

The landowners held parcels on the protected route of the proposed A49 Shrewsbury bypass. After compulsory purchase notices were published, the local planning authority granted positive certificates for residential or industrial development under section 17(4)(a) of the Land Compensation Act 1961. On appeal, the Secretary of State cancelled them and issued negative certificates.

Dyson J quashed the Secretary of State's decisions. The Court of Appeal, reported at [1999] Q.B. 1144, restored them. The Secretary of State abandoned cross-appeals about the relevant date, leaving it common ground that the date was publication of the compulsory purchase notices.

The central issue was whether section 17(4) required only the acquisition scheme and underlying proposal to be treated as cancelled on that date, or required the entire planning history to be reconstructed as though the bypass scheme had never existed.

1. The appeals were dismissed unanimously. Lord Hope of Craighead delivered the leading speech. Lord Browne-Wilkinson, Lord Clyde, Lord Hobhouse of Woodborough and Lord Millett agreed with his reasons.

2. Per Lord Hope, section 17(4) of the Land Compensation Act 1961 uses the present conditional expression “if it were not proposed to be acquired”. Read with section 22(2), it directs an assumption about the position on the relevant date. The acquisition scheme and its underlying planning proposal must then be treated as cancelled. The subsection requires no assumption about what might have happened earlier had the scheme never existed.

3. Per Lord Hope, the authority must apply ordinary planning principles to the circumstances existing on the relevant date. Retrospective reconstruction would require successive assumptions about population, housing need, alternative sites and other changing planning considerations. It would introduce uncertainty and require historical assessments outside the planning authority's ordinary expertise.

4. Per Lord Hope, the question is whether reasons independent of the acquisition scheme existed for refusing permission at the relevant date. Grampian Regional Council v Secretary of State for Scotland [1993] 1 W.L.R. 1340 established that the acquisition's underlying public requirement could not itself justify a negative certificate. It did not decide whether all earlier consequences of a long-standing scheme must also be disregarded.

5. Per Lord Hope, Jelson v Minister of Housing and Local Government [1970] 1 Q.B. 243 supported determination by reference to the circumstances existing when the statutory notice was given, rather than by looking back to a time before the proposal. Wider historic effects might be raised when the Lands Tribunal assessed compensation under section 9, but the House did not decide that issue.

1. House of Lords: The landowners' conjoined appeals were dismissed unanimously. The Court of Appeal's restoration of the Secretary of State's negative certificates was upheld. The Secretary of State did not pursue his cross-appeals concerning the relevant date.
2. Court of Appeal: Nourse, Peter Gibson and Buxton L.JJ. set aside Dyson J's orders and restored the Secretary of State's decisions: [1999] Q.B. 1144. It affirmed that the relevant date was the date of notice but held that section 17(4) did not require all historical effects of the scheme to be disregarded.
3. High Court: Dyson J allowed the landowners' applications under section 21 of the Land Compensation Act 1961 and quashed the Secretary of State's decisions.