Compulsory Purchase and Certificates of Appropriate Alternative Development

The Upper Tribunal (Lands Chamber) has recently heard an appeal against a certificate of appropriate alternative development issued by a planning authority. Brendon Lee reports on the ruling.

You will likely be familiar with the appeal process to the Planning Inspectorate when an applicant wishes to challenge a planning decision of the local planning authority. However, for planning issues on compulsory purchase matters, the appeal of a local planning authority’s decision on a certificate of appropriate alternative development (CAAD) which will be material to the property value is actually to the Upper Tribunal (Lands Chamber).

Interestingly, the Tribunal has recently had a rare opportunity to hear such a planning appeal in Lockwood & Ors v Highways England Company Ltd [2019] UKUT 104 (LC). It provides helpful guidance on the role of the Tribunal as a decision maker in planning law within the context of compulsory purchase. 

Background

The claimants’ property was shown on the indicative route of Highways England’s Lower Thames Crossing Project. This meant the property was subject to statutory blight and therefore they served a blight notice on 19th July 2017 which was then accepted by Highways England on 15th August 2017.

The acceptance by Highways England results in a notice to treat being deemed served on the claimants. It also means that the claimants can then apply to the local planning authority for a CAAD as part of the negotiations and discussions on compensation (in accordance with an application under section 17 of the Land Compensation Act 1961 (“the 1961 Act”).

In this case, the CAAD application on appeal was made to Thurrock Council as local planning authority, together with other related CAAD applications on the claimants’ property and neighbouring property, in March 2018. It sought development for nine residential houses, comprising seven detached and a pair of semi-detached houses. With the other related CAAD applications it would have meant a combined development for 12 residential houses.

The Council determined that, instead of nine residential houses, the appropriate alternative development for the property was rather one of not fewer than 11 and not more than 12 residential houses. They imposed affordable housing provisions and an education contribution on such development and issued the CAAD on this basis.

The Government’s Planning Practice Guidance (PPG) at the time of the decision provided non-statutory advice to planning authorities that affordable housing provisions (and other financial contributions) should not be required on developments of ten residential houses or less (with a combined gross floor space below 1,000 sqm). The Council reasoned in their decision that the claimants had attempted to avoid such provisions within the local policies of their development plan (which pre-dated the PPG) by submitting a development below ten residential houses by way of piecemeal development.

The claimants appealed the Council’s decision to the Tribunal in accordance with section 18 of 1961 Act.          

The Powers of the Upper Tribunal (Lands Chamber)

Section 18 of the 1961 Act provides the Tribunal’s powers on an appeal of a CAAD as follows:

“(2) On any appeal under this section against a certificate, the Upper Tribunal— (a) must consider the matters to which the certificate relates as if the application for a certificate under section 17 had been made to the Upper Tribunal in the first place, and (b) must— (i) confirm the certificate, or (ii) vary it, or (iii) cancel it and issue a different certificate in its place, as the Upper Tribunal may consider appropriate.”

Importantly, the Tribunal is required to consider the CAAD application afresh and on its planning merits (akin to that of the powers of the Planning Inspectorate). It is not constrained by the schedule of reasons given by the Council in its decision on the CAAD application.

In determining the appeal, the Tribunal must apply the ordinary planning principles as set out in section 70 of the Town and County Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004. This means the Tribunal must consider whether the proposed development was in accordance with the development plan and, if not, whether material considerations justified departing from that plan. 

It is important to note that the Tribunal does not have to assess more precisely the prospects of the development happening, or of the permission being implemented. 

Preliminary Issues: Who is the respondent & what is the date against which a CAAD must be assessed?

The first preliminary issue that arose in the Lockwood case is to establish the relevant respondent on an appeal to the Tribunal under section 18 of the 1961. The claimant in this case had named the Council as the respondent. The Tribunal clarified that it was the acquiring authority that should be the relevant respondent in such appeals. In this case, Highways England.

It is noted that Highways England decided to not participate in the appeal (and the Council did not participate as an interested party). 

The second preliminary issue was to identify the “relevant valuation date” against which the Tribunal is required to consider whether development is appropriate alternative development. Such date being the date for which compensation is determined and is defined in section 5A(3) of the 1961 Act:

“If the land is the subject of a notice to treat, the relevant valuation date is the earlier of –  (a) the date when the acquiring authority enters on and takes possession of the land;  (b) the date when the assessment [of the valuation of land in accordance with section 5, rule (2)] is made.”

However, this appeal concerned a blight notice accepted by the acquiring authority and for which a deemed notice to treat is served. No entry onto the land has been taken with the relevant valuation date still in the future.

The Tribunal found that, in circumstances such as these where a section 18 appeal has been made before entry has been taken and where the Tribunal is not being invited to determine the compensation payable at the same time, the terms of the CAAD must be determined on the basis of planning policy and law at the date of their determination.

Decision

In finding that residential development was appropriate alternative development for the property, the Tribunal considered the Council’s relevant local policies in its development plan, the current version of the National Planning Policy Framework (NPPF), the PPG, the Brownfield Land Register, and the Council’s housing land supply.

The key issue was the number of residential houses for such alternative development. Specifically, whether only nine houses were appropriate in planning terms. On this issue, the Tribunal concluded that there was no doubt the claimants had reduced the size of the development to avoid the affordable housing provisions and an education contribution.

However, the PPG was updated on 15th March 2019 and introduced the new threshold of 0.5 hectares or more, replacing the previous threshold of combined floor space of 1,000 sqm. The property was approximately 0.6 hectares, and thus over the threshold.  Accordingly, the Tribunal determined that development of only nine residential houses was caught by the PPG (and associated pre-dated policy in the development plan) in that the alternative development was a major development. Therefore, the affordable housing provisions and the education contribution applied. There was no planning reason, in their determination, to impose a condition requiring 11-12 houses in the CAAD.

The Tribunal therefore amended the CAAD to permit nine residential houses, subject to affordable housing provisions and an education contribution in accordance with the Council’s policy in their development plan. 

Lesson

The relevant body to appeal a council’s decision on a certificate of appropriate alternative development is the Upper Tribunal (Lands Chamber). They have the authority to review the merits of the application and amend the CAAD issued by the council. The respondent should be the acquiring authority and not the local planning authority for such appeal. Key consideration should be given to the relevant date for which the planning policies and law should be adjudged (especially in this ever-changing planning landscape).

Brendon Lee is a senior solicitor at Buckles Law. He can be contacted on 01733 888920 or This email address is being protected from spambots. You need JavaScript enabled to view it..