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Developer fails in claim that 135-home residential scheme was appropriate alternative development for compulsorily purchased site

A judge has rejected a developer's claim that 135 homes would have been appropriate alternative development for a site compulsorily purchased for a bypass.

In Leech Homes Ltd Northumberland County Council (COMPENSATION - PLANNING PERMISSION - certificate of appropriate alternative development) [2020] UKUT 150 (LC) the Upper Tribunal (Lands Chamber) ruled against Leech Homes in its dispute with Northumberland County Council.

Leech had appealed under s.18 of the Land Compensation Act 1961 after Northumberland acquired its land for construction of the Morpeth northern bypass. 

It sought a certificate of appropriate alternative development under s.17 of the same Act and argued that without the bypass scheme it would have built 135 homes.

Martin Rodger QC, Deputy Chamber President, explained: “The significance of development being identified as appropriate alternative development is that, when compensation comes to be assessed, it must be assumed that planning permission for that development either was in force at the valuation date, or would with certainty be in force at some future date identified in the certificate.”   

Northumberland said there was no development that would constitute ‘appropriate alternative development’ because the land was within the general extent of the Green Belt and plans proposed an extension to this around Morpeth. 

The exact boundaries had not been defined by the valuation date of 16 March 2015, and Leech said the suggestion that Green Belt policies applied was contrary to advice given to the secretary of state before confirmation of the necessary development consent order.

Judge Rodger rejected Leech’s submission that the applicability of Green Belt policy was simply a matter of planning judgment as “s.38(6) of the 2004 Act requires it to be assumed that Green Belt policies apply unless and until precise boundaries are defined through the local plan process”.

He said the site in question “clearly contributes to Green Belt purposes…assuming only a medium contribution to the achievement of Green Belt purposes, we can nevertheless see no reason not to apply Green Belt policies to the appellant’s land”.

The tribunal said a reasonable decision maker “would have found no special circumstances sufficient to justify granting consent” and that at the valuation date “it could not reasonably have been expected that planning permission would be granted for the proposal at, or by, any given future date”.

There was also no evidence that an application for any use appropriate to Green Belt - such as agriculture or forestry - would have succeeded.

Mark Smulian