Trustees of the Boulder Bridge Lane Trust v Barnsley Metropolitan Borough Council

For a compulsory purchase order made before 6 April 2012, a certificate of appropriate alternative development must be determined under the former form of section 17 of the Land Compensation Act 1961, by reference to the planning position at the relevant historical date. A certificate must specify conditions which would have attached to permission, but its valuation purpose does not justify conditions with no effect on land value.

Planning permission for commercial re-use of a redundant former railway building was likely despite Green Belt policy, where the realistic alternative was continued dereliction and the resulting environmental harm. Expenses reasonably incurred on a successful certificate application and appeal fall to be taken into account in compulsory-purchase compensation.

The Trustees appealed under section 18 of the Land Compensation Act 1961 against the Council’s negative certificate of appropriate alternative development for former railway land compulsorily acquired in 1985.

The Council accepted that it had incorrectly assessed the application by reference to planning policies current in 2015, rather than those applicable when the compulsory purchase order was published in December 1985. The parties subsequently agreed that fuel recovery, limited inert-waste infilling and restoration, and scrap-yard use of a defined area would have received permission.

The remaining dispute concerned whether an existing former railway building north of Shaw Lane could have been put to commercial use and the conditions which the certificate should contain.

1. Appeal allowed. The Tribunal cancelled the Council’s negative certificate and substituted the certificate in Appendix A.
2. The substituted version of section 17, introduced by section 232(3) of the Localism Act 2011, applied only to compulsory purchase orders made or confirmed after 6 April 2012. This 1985 order was therefore governed by the original section 17. The Council’s original assessment by reference to current policy was mistaken.
3. At least one former railway office building existed on the land in December 1985. Although the precise Green Belt boundary was uncertain and commercial use would have been a non-Green-Belt use, permission would probably have been granted for its commercial re-use. The alternative was its continued dereliction in an environmental-improvement area. That was a sufficiently special circumstance, and there was no identified Green Belt purpose for which the building could otherwise be used.
4. The permitted re-use was not confined to offices. Given the building’s location adjoining scrap yards, permission would have been granted for Classes II to IV under the Town and Country Planning (Use Classes) Order 1972, with operating-hour restrictions only for Class IV use.
5. Under the original section 17(5), the certificate had to specify, rather than merely give a general indication of, conditions which would have attached to permission. Conditions were nevertheless justified only insofar as they assisted valuation. The Tribunal fixed conditions concerning, among other matters, a five-year restoration period, inert rather than “clean inert” waste, progressive restoration, final contours and dust and wheel-cleaning controls. It rejected an unsupported contingency condition requiring a revised restoration scheme.
6. By section 17(9A), the Trustees’ reasonable expenses of the section 17 application and successful section 18 appeal were to be taken into account in assessing compensation. The Tribunal directed that course rather than making a costs order.

• Upper Tribunal (Lands Chamber): Allowed the Trustees’ section 18 appeal, cancelled the negative certificate and substituted a positive certificate.
• Barnsley Metropolitan Borough Council: Issued a negative certificate of appropriate alternative development on 29 October 2015.