Compensation Q & A DCP Section 6.2

Apart from an award of costs subsequent to an appeal or court case, there are several other circumstances in which the operation of the development control process can lead local authorities, or in some cases the SoS to compensate others.

Q & A    6.2/10

A ground of appeal currently before The Planning Inspectorate relating to a Discontinuance Notice by my authority is that the whole process of such action is incompatible with the requirement of Article 1 of Protocol 1 of the European Convention on Human Rights. Are you aware of any precedent?

Use of this power found at section 102 of the Town and Country Planning Act 1990 is very rare due to the compensation implications. I am not aware of any human rights challenge, but perhaps a reader could provide an insight?

A friend has had his application refused for permission to build on an unused gap site on the main road of a small village. An appeal has also been dismissed. He now wishes to serve a purchase notice on the LPA under section 137 of the Town and Country Planning Act 1990 but finds that the legislation is hard to understand. Advice is scarce, conflicting and too expensive for him. Is there a proscribed method of proceeding?

A purchase notice may be served on a local planning authority when land has been rendered "incapable of reasonably beneficial use" by reason of planning restrictions. Advice is given in Circular 13/83, but in practice it has been extremely difficult to show that the planning system has deprived a landowner of any use at all. In the case of small pieces of open ground it has often been found that an agricultural use, say for grazing, would be a beneficial use of that land. Commentary and summaries of a number of court and appeal cases is to be found in Development Control Practice (6.24) and reference may also be made to Planning 18 August 2000 p.19.

A windfarm has been developed opposite my property where approved diagrams, photomontages and written predictions have not been adhered to. Turbines which I was persuaded would not be seen or heard are now apparent. The developers have agreed to compensate us but have asked us to come up with an amount. I need to have some idea from previous cases giving some idea of the sum of money that I should suggest to them.

I assume that there is nothing your local planning authority can do to remedy what appears to be a substantial departure from approved plans. I am aware of a previous Ombudsman case concerning a complaint concerning a wind farm in Cornwall but in this case no maladministration was found and therefore there was no discussion of compensation. However, the general approach of the Ombudsman to establishing compensation where property value has been affected may be of interest as in the Blyth Valley case reported above* relating to a telecommunications mast. Here it was recommended that the basis of compensation should be the independently assessed difference in property value between a) the mast sited where it should have been and b) the mast sited where it had been erected.

A planning condition relating to a new dwelling required a visibility splay over my client’s land, outside the application site, but was not worded in the Grampian style. Because of this, the absence of any related legal agreement and the need for my client’s wall to be lowered, the splay was not provided. My client thinks that his compensation rights for the affected land have been denied. He has served a purchase notice on the authority but this has been rejected as invalid, because it relates to land beyond the application site. Is this right and what recourse is open to my client?

The purchase notice system provides a remedy for owners of land left without any reasonably beneficial use following a planning decision, including a grant of permission subject to conditions. Sec.137 of the 1990 Act details the circumstances in which a notice may be served requiring a local authority to purchase the land, and policy advice is given in Circular 13/83. The latter explains that the notice must relate to the same area of land as that subject of the planning decision. It therefore follows that your client’s notice was invalid. Where an authority refuses to accept a notice, it must be referred to the SOS for consideration although this procedure may only apply to valid notices.

However, I fail to understand why your client believes that the land in question has been deprived of any reasonably beneficial use, especially as the condition appears to be ultra vires and incapable of enforcement, as it relates to land outside the application site and beyond the applicant’s control. Had it been a Grampian condition, then clearly the applicant could have been enforced against, in which case the value of your client’s land would have increased. Reference should also be made to paragraphs 37 – 39 of Circular 11/95 on the reasonableness of such conditions.

Response

In reply to the query concerning the failure of a local authority to impose a Grampian condition requiring the provision of a visibility splay before occupation of a proposed house, apart from being sheer incompetence, this is arguably maladministration, and a complaint should be made to the Local Government Ombudsman.

The so-called Grampian-type condition requiring the provision of a visibility splay on land outside the applicant's control before occupation of the proposed house would not have helped much and arguably might have created a worse tangle than the one that exists. A true Grampian-style condition would, of course, prevent a start on development until the splay has been provided. In this case, the condition would have allowed the house to be built but would not have secured provision of the splay, leaving vacant property served by an unsafe access.


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