Where land is compulsorily acquired the owner can apply under section 17 of the Land Compensation Act 1961 (“the 1961 Act”) for a certificate of appropriate alternative development (“CAAD”).
In the Upper Tribunal (Lands Chamber) case of Mintblue Properties Ltd, Re: Car Park of former E-Mag Factory  the Welsh Government had made a compulsory purchase order against the Car Park of the former E-Mag Factory Brynmawr, Blaenau Gwent (“the appeal site”). The appellant, Mintblue Properties Ltd, made a section 17 application to Brecon Beacons National Park Authority (“BBNPA”) as the local planning authority. The application specified that in the appellant’s opinion residential development would be appropriate alternative development in relation to the appeal site for the purposes of section 14 of the 1961 Act.
BBNPA issued a CAAD certifying that various classes of development would have been granted planning permission if the acquiring authority had not proposed to compulsorily acquire the appeal site.
The appellant appealed to the Tribunal against the CAAD. The only dispute was about the limitation which BBNPA had imposed on the C3 residential use. The appellant said there was no justification for limiting that use to 100% affordable housing which would have massively depreciated the compulsory purchase valuation of the land.
So the Tribunal was required to determine whether, on the balance of probabilities, planning permission for the residential development of the appeal site, with no requirement for any affordable housing, could reasonably have been expected to be granted on the relevant date in the circumstances known to the market on that date and on an application decided on that date or at a time after that date (section 14(4) of the 1961 Act). That issue had to be determined in accordance with the development plan unless material considerations indicated otherwise.
The Tribunal said at the relevant date:
(i) The development plan was the Brecon Beacons National Park Local Development Plan (“the LDP”);
(ii) The appeal site was shown as countryside in the LDP but adjoined a site identified as a residential commitment (the former E-Mag factory site); and,
(iii) The former E-Mag factory site had planning permission for residential development subject to an affordable housing element of 20%.
The Tribunal said the existence of an extant residential planning permission on the adjoining E-Mag factory site was a material consideration to which significant weight should be given.
BBNPA had seemingly failed to accord any weight to this planning permission, relying instead upon an interpretation of Policy 29 of the LDP: “Affordable Housing Exceptions”.
BBNPA’s reliance upon this policy was misdirected for a number of reasons:
(i) The appeal site adjoined and formed a logical extension to the settlement of Brynmawr which was not in the Brecon Beacons National Park but in the neighbouring authority of Blaenau Gwent County Borough Council;
(ii) There was no proven need for affordable housing that could not be met in any other way;
(iii) There was no housing needs survey; and,
(iv) Policy 28 of the LDP said that no affordable housing contributions were required in the Heads of the Valleys and Rural South Submarket in which the appeal site was located.
The appeal site was in a sustainable location and, the Tribunal was satisfied on the balance of probabilities that if the road scheme was cancelled, the appeal site could reasonably have been expected to be granted planning permission for residential development without dependence upon Policy 29, which the Tribunal did not consider to be applicable.
The 20% affordable housing policy that was in force when planning permission was granted for the former E-Mag factory site in 2012, no longer applied at the relevant date. Instead Policy 28 had been introduced and it expressly required no affordable housing for developments, such as could have been expected at the appeal site.
The Tribunal varied the CAAD issued by BBPNA so as to delete the parenthesis “(as a 100% affordable housing development on an exception site in the countryside)” as it applied to C3 -residential use.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.