Newell and Others v. Secretary of State for the Environment and Another; Fletcher Estates (Harlescott) Ltd. v. Secretary of State for the Environment and Another

The House of Lords held that, for the purpose of a certificate of appropriate alternative development under section 17(4) of the Land Compensation Act 1961, the local planning authority must assume that the land is not proposed to be acquired at the relevant date specified by section 22(2)(a) (the date of publication of the notice of the proposed compulsory purchase order). The statutory assumption is a present conditional: the planning authority must assess whether planning permission would have been granted in the circumstances existing at that relevant date, on the footing that the proposal and the notice were cancelled on that date.

The court rejected the landowners' submission that the authority must also disregard all historical effects of the proposal and reconstruct planning history as if the scheme had never been conceived. The court emphasised the practical and evidential difficulties of such retrospective reconstruction and held that wider historical consequences are not matters for the planning authority when determining the certificate; they may, if relevant, be raised before the Lands Tribunal when assessing compensation under the other provisions of the Act (for example section 9).

The decision applies sections 14–16 and Part III of the Land Compensation Act 1961, and follows the purposive construction of the certification procedure to secure fair compensation without conflating the assessment with speculative historical counterfactuals.

The appeals concerned two parcels of land east of Shrewsbury (the Longmore land and the Fletcher land) that were the subject of draft compulsory purchase orders for the construction of an A49 by-pass. Notices of the draft orders were published on 30 January 1986. The landowners applied under section 17(3) of the Land Compensation Act 1961 for certificates of appropriate alternative development; the local authority issued certificates which the Secretary of State successfully appealed against, obtaining negative certificates under section 17(4)(b).

The landowners sought judicial review in the High Court (Dyson J), which quashed the Secretary of State's decisions. The Court of Appeal set aside Dyson J's orders and restored the Secretary of State's decisions. The appeals to the House of Lords raised two issues, but the parties agreed that the relevant date for the certificate is the date of the section 22(2)(a) notice; the sole contested issue before the House was the scope of the statutory assumption in section 17(4): whether the local planning authority must assess what planning permission would have been granted on the basis that the proposal had been cancelled only at the relevant date, or whether it must also eliminate all prior effects of the proposal (i.e. treat the past as if the proposal had never existed).

The House of Lords, applying the ordinary meaning of the present conditional words "if it were not proposed to be acquired," held that the assumption relates to the circumstances as at the relevant date. The scheme and any planning documents reflecting it should be treated as cancelled on that date, but it is neither required nor practicable to reconstruct an alternative planning history free from all prior consequences of the proposal. The court discussed and distinguished Grampian Regional Council v Secretary of State for Scotland [1993] 1 WLR 1340 and relied on Jelson v Minister of Housing and Local Government [1970] 1 QB 243 for support. The Lords emphasised practical reasons (uncertainty and evidential difficulty) and the statutory scheme: wider consequences might be relevant to questions of compensation before the Lands Tribunal (for example under section 9) but not to the planning authority's determination of a certificate under section 17(4).

Relief sought: quashing of the Secretary of State's decisions replacing local authority positive certificates with negative certificates. Issues framed: (i) the relevant date for the certificate; (ii) the extent of the assumption to be made by the local planning authority under section 17(4). Court reasoning in brief: (i) the relevant date is the date of the section 22(2)(a) notice; (ii) the planning authority must assume the proposal and notices to have been cancelled as at that date and decide according to the circumstances then existing, not by reconstructing a past in which the proposal never existed. Appeal dismissed.

Appeals dismissed. The House of Lords held that under section 17(4) of the Land Compensation Act 1961 the local planning authority must assume the land was not proposed to be acquired at the relevant date (the date of the notice under section 22(2)(a)) and determine whether planning permission would have been granted on the facts existing at that date. The authority is not required to reconstruct a hypothetical planning history in which the acquisition scheme never existed; wider historical effects of the proposal are not for the planning authority when determining the certificate and, if relevant, may be addressed in compensation proceedings before the Lands Tribunal.

The landowners applied to the High Court under section 21 of the Land Compensation Act 1961; on 10 June 1997 Dyson J ordered that the applications be allowed and quashed the Secretary of State's decisions. On 11 June 1998 the Court of Appeal (Nourse, Peter Gibson and Buxton L.JJ.) set aside the orders of Dyson J and restored the Secretary of State's decisions (see Court of Appeal reporting at [1999] Q.B. 1144). The appeals to the House of Lords culminated in this judgment ([2000] UKHL 10).