Bridgend County Borough Council v Boland & Anor

For a certificate of appropriate alternative development under section 17 of the Land Compensation Act 1961, the decision-maker applies the cancellation assumption. The public-interest scheme is treated as cancelled at the relevant date for the land being assessed. The wider no-scheme assumption belongs to compensation assessment under Part II and must not be imported into the section 17 inquiry.

Whether a planning policy forms part of the underlying scheme is a question of fact and planning judgment, although policy construction is a question of law. A settlement-boundary change is not necessarily part of the scheme merely because the scheme prompted it. Its broader policy significance and interaction with the development plan are material.

The Council compulsorily acquired agricultural land owned by Mr and Mrs Boland for a new school. The Council issued a negative certificate of appropriate alternative development, refusing to certify that residential planning permission would have been granted.

The Upper Tribunal (Lands Chamber), in [2016] UKUT 174 (LC), allowed the Bolands’ appeal and issued a positive certificate for residential development of the relevant land. The Council appealed, arguing that the cancellation assumption required the settlement-boundary amendment to be disregarded because it had been made to facilitate the school scheme. The central issue was whether that boundary amendment formed part of the underlying proposal.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Hickinbottom delivered the judgment, with Lord Justice Hamblen and Lord Justice Lloyd Jones agreeing.

1. Correct statutory assumption. For an application under section 17(4) of the Land Compensation Act 1961, the decision-maker must apply the cancellation assumption. The relevant public-interest scheme is treated as cancelled, so far as the land subject to the compensation assessment is concerned, at the date of the notice of proposed compulsory acquisition. The broader no-scheme assumption applies to compensation assessment under Part II, not to the section 17 inquiry in Part III. This approach was established in Fletcher Estates (Harlescott) Limited v Secretary of State for the Environment; Newell v Secretary of State for the Environment [2000] 2 AC 307 and confirmed in J S Bloor (Wilmslow) Limited v Homes and Communities Agency [2017] UKSC 12.
2. Underlying proposal. The fact of acquisition and Policy SC5(15), which allocated the land for educational use and had no function beyond the school scheme, had to be disregarded. Whether the settlement-boundary policy also formed part of the underlying proposal was essentially a question of fact and planning judgment for the Upper Tribunal. The observations in Waters v Welsh Development Authority [2004] UKHL 19 were applicable. Construction of the development plan remained a question of law.
3. Application to the boundary. The settlement boundary had broad policy significance. Different policies applied inside and outside it, and its adoption followed the statutory development-plan process. The plan contained no special restrictions on the land once included within the boundary, and the adjoining North Field could have been developed for housing under Policy H4 even without the school scheme. The fact that the boundary change was prompted by the school proposal, and was not legally necessary to enable the school, was material but not determinative. It would have been artificial and legalistic to disregard only the part of the boundary surrounding the Reference Land.
4. Section 17(7) reinforced the conclusion that a certificate could not be refused solely because the hypothetical development conflicted with the development plan. The Upper Tribunal was entitled to conclude that the boundary amendment was not part of the underlying scheme and had not erred in law.

• Court of Appeal (Civil Division) The Council’s appeal was dismissed.
• Upper Tribunal (Lands Chamber) In [2016] UKUT 174 (LC), the Tribunal allowed the Bolands’ appeal and varied the certificate to certify that residential planning permission would have been granted for the Reference Land.