By FGP on 8th November 2019
For an unwary infrastructure developer using powers of compulsory purchase, Certificates of Appropriate Alternative Development (CAAD) can lead to unexpected compensation sums to a landowner. Where land being acquired is undeveloped, but has a perceived development potential, the landowner can make an application for a CAAD which is handled similarly to a normal planning application; the planning authority has to consider the application as if the infrastructure scheme wasn’t happening. Relevant to cross country projects, the Class Q Permitted Development category allows the change of use of certain farm buildings from agriculture to residential, which might not be immediately obvious during preliminary route assessments and is one example where a CAAD might arise.
This process is perceived by many landowners as a procedure where the planning authority will almost inevitably refuse permission as the easy option, or that the balance is weighted that way; this not least because often the same local authority is the acquirer. Developers on the other hand inevitably have the opposite perception, so perhaps it is a balanced process after all. The right to apply for a CAAD is governed by the Land Compensation Act 1961 rather than the planning acts, but the process darts between the two.
A recent case, Lockwood and others amp; others v Highways England [2019] UKUT 104, examined the procedure onward to appeal and brought to light potential errors in the appeal process. The case related to the Lower Thames Crossing project. The applicant’s property was one of a series of properties similarly affected. The property in question was subject to statutory blight and a blight notice was accepted by Highways England. Thurrock Council accepted the CAAD but consented to a modified version. The Council actually approved an increase in the number of dwellings applied for, from nine to twelve, introducing conditions that would require a proportion of low cost houses and an education contribution. Under central government planning guidance, this type of conditioning was applied to, at the time, developments of over ten dwellings and the Conditions had the effect of reducing the value. The Council argued that the applicant had deliberately kept the housing numbers to nine to avoid the need for the planning conditions.
The claimants chose to appeal, which is where the process departs from a parallel with standard planning and as a result procedural points arose. An appeal on a CAAD is made to the Upper Tribunal (Lands Chamber) rather than the Planning Inspectorate. The Tribunal has to consider the CAAD afresh on planning merits and does not have to take into account the Council’s reasons for a decision. It does not have to re-assess the prospects for development or the likelihood of a permission being carried out.
In the Lockwood case, the claimants wrongly named Thurrock Council as the respondent to the appeal. Under the requirements of the Land Compensation Act, it should have been the acquiring authority, Highways England in this case.
Another point concerned the relevant valuation date. No entry onto the land had been taken and the Tribunal found that while they were not being asked to determine the compensation at the same time, then the CAAD would be decided at on the planning policies that applied at the date of determination.
In their decision the Tribunal found that planning policy had changed on 15th March 2019; the original blight notice had been accepted on 15th August 2017. This meant that the nine houses were now caught by the major development planning policy provisions requiring affordable housing and educational contribution! The Tribunal accordingly amended the CAAD permitting the nine houses but now subject to the Council’s conditions. They agreed with the Council that the claimant had set the notional development at nine dwellings to avoid the conditions.