Trustees of the Boulder Bridge Lane Trust v Barnsley Metropolitan Borough Council

Introduction

1. This is an appeal under section 18 of the Land Compensation Act 1961 (“ the 1961 Act ”) by the Trustees of the Boulder Bridge Lane Trust (“the Trustees”) against a negative certificate of appropriate alternative development (“CAAD”) issued by Barnsley Metropolitan Borough Council (“the Council”) on 29 October 2015.

2. The background to the appeal is the Metropolitan Borough of Barnsley (Carlton) (Land Reclamation) Compulsory Purchase Order (“the CPO”) which was made by the Council on 9 December 1985 and confirmed by the Secretary of State for the Environment on 5 December 1986. The CPO gave the Council power to acquire 37 acres of vacant land at Boulder Bridge Lane, Carlton, which comprised former railway sidings, embankments and other disused land (“the appeal site”) for the purpose of carrying out improvements including grading, mounding, grassing, tree planting and ancillary works. The freehold interest in the appeal site was owned by the Trustees.

3. The appeal site is an elongated area of land formerly at the junction of two railway lines. The site is approximately in the shape of the letter Y, with the base of the Y pointing south and the western limb being shorter than the eastern limb. The western boundary of the site is formed by an operational railway, while on the eastern side there is open land, now used as a nature reserve. The eastern limb was formerly a railway line, but the tracks have been removed. The land between the two limbs of the appeal site (but not forming part of it) is used as scrap yards. The shorter, western limb of the site terminates at its northern end where it meets Shaw Lane, which runs from west to east across through the scrap yards and across the route of the former railway. Shaw Lane is raised on an embankment where it passes through the scrap yards and crossed the eastern limb of the appeal site over a bridge. To the north of Shaw Lane, adjoining the scrap yard, at least one operational railway building once stood on the appeal site but has subsequently been demolished.

4. The Council took possession of the appeal site by entry on 2 February 1990 which is agreed to be the valuation date for the purposes of assessing compensation under the 1961 Act .

5. Despite the lapse of more than 27 years no award of compensation has yet been made or agreed and freehold title to the land remains vested in the Trustees. The Council does not wish to rely on the expiry of the limitation period under section 9 of the Limitation Act 1980 and it referred the determination of compensation to the Tribunal on 15 a pril 2014.

6. On 15 September 2015 the Trustees made an application to the Council for a CAAD under section 17 of the 1961 Act . In their application the Trustees stated that had it not been required under the CPO the appeal site could appropriately have been used for (i) light and general industrial purposes; (ii) the extraction of fuel deposits; and (iii) landfill.

7. On 29 October 2015 the Council issued a negative certificate saying that in its opinion there was no development that “for the purposes of section 14 [of the 1961 Act ] is appropriate alternative development in relation to the acquisition.”

8. The Trustees appealed to the Tribunal against the Council’s CAAD on 9 November 2015. The basis of the appeal was that the Council had erred in law by failing to apply the law appropriate to a case where the CPO had been made before 6 April 2012, and by relying on current local and national planning policies rather than those which applied when the CPO was published on 10 December 1985.

9. The Council now accepts that it issued the negative certificate on a mistaken basis, in that it wrongly considered the application for the CAAD in the light of the planning policies and other circumstances current at the date of its decision rather than as they were in 1985 when the CPO was published.

10. The Council was right to make this concession. In its current form section 17 of the 1961 Act was substituted by section 232(3) of the Localism Act 2011 . The substituted section 17 applies only to compulsory purchase orders made or confirmed after 6 April 2012. As the CPO in this appeal was made before that date, section 17 applies to the Trustees’ CAAD application in its original form.

11. Mr Richard Langham of counsel appeared for the appellants and relied upon a witness statement from Mr Roy Thornton, a current trustee, and on expert evidence from Mr Paul Bedwell, MRTPI, a Director of Spawforths Planning Consultancy.

12. Mr Martin Carter of counsel appeared for the Council and relied upon a witness statement from Mr Cliff Gorman, a local resident and former employee of British Rail who had worked for a time at the appeal site, and on expert evidence from Ms Elaine Ward, BSc MRTPI Major Applications Team Group Leader at the Council.

13. It was agreed between the parties before the hearing that neither party would cross-examine the witnesses of fact or the expert planning witnesses, whose evidence was taken as read. The parties’ respective positions on the appeal

14. The Council reconsidered the Trustees’ CAAD application at a meeting of the Planning Regulatory Board on 23 February 2016 at which it accepted that it ought to have granted a certificate for recovery of fuel. It now accepts that, having regard to planning policies at the relevant date, it ought to have issued a certificate stating that the following three forms of development would have been granted planning permission on 10 December 1985: (i) The recovery of fuel on that part of the appeal site south of Shaw Lane to the extent that it removed contaminants, subject to 10 conditions set out in the report of the Council’s Head of Planning and Building Control. (ii) The deposit of inert waste following the recovery of fuel followed by restoration to an appropriate Green Belt use on those parts of the appeal site not proposed to be allocated in the 1983 draft of the Barnsley Urban Area Plan (“the 1983 draft plan”) for use as scrap yards. Such permission would have related only to the filling of voids created by fuel recovery and would not have permitted any raised land levels. The permission would have been subject to conditions designed to protect the amenity of local residents and the adjoining local nature reserve to the east known as Carlton Marsh. (iii) The use of the western part of the appeal site for scrap yard use in accordance with the proposed allocation under policy I7 of the 1983 draft plan (“the I7 area”).

15. The Trustees contend that planning permission would also have been granted on 10 December 1985 for the commercial use of existing buildings located on the appeal site to the north of Shaw Lane. The Council denies that such permission would have been granted. It says that the number and condition of the buildings on the land in 1985 is unclear; it accepts that there was at least one building, but not that it was fit for re-use. Any buildings would have been ancillary to the then railway undertaker’s operational use and could not have been put to commercial use without planning permission. Such planning permission would have been refused given the location of the building(s) in the Green Belt and the planning policies which therefore applied.

16. By the date of the hearing there was a substantial measure of agreement between the parties on all issues apart from the possible commercial re-use of the former railway undertaker’s building(s) north of Shaw Lane. In respect of the other classes of development which, either immediately or at a future time, would have been appropriate for the appeal site had it not been compulsorily acquired by the Council the parties agreed the following: (i) Light or general industrial uses were not appropriate alternative uses. (ii) The recovery of fuel (being coke and low-quality coal which had been imported onto the appeal site and used as ballast for the operational railway and sidings), and the subsequent progressive restoration of the land and its after use for informal recreation were appropriate alternative uses. (iii) The I7 area could appropriately be used as a scrap yard.

17. The parties agree that any planning permission for the agreed uses would have been granted subject to conditions. A significant number of these conditions were agreed after the hearing, including all the conditions relating to the I7 area, but several remain outstanding and require determination by the Tribunal.

18. The remaining issues are: (i) whether the building(s) to the north of Shaw Lane could have been appropriately used for commercial purposes and, if so, subject to what conditions; and (ii) any additional conditions subject to which the agreed alternative uses would have been permitted. Issue (i): the re-use of former statutory (railway) undertaker’s building(s)

19. From the evidence of Mr Gorman and Mr Thornton, including photographic evidence, we are satisfied that there was at least one single-storey building located on the appeal site on 10 December 1985. Pedestrian access could be obtained by steps leading down from the north side of Shaw Lane and vehicular access from a road which ran along the line of the disused railway line under Shaw Lane bridge. Mr Gorman said that this building was approximately 12-15m x 3m. Our own measurements from the 1:2,500 scale CPO reference plan suggests a slightly smaller size of 11m x 3m. A second, smaller, building is shown on that plan to the north of the main building but there are no corroborative photographs or witness testimony concerning it and we are not satisfied that it remained standing in December 1985 and therefore disregard it.

20. The building was apparently used as offices and associated ancillary uses such as a canteen, changing and toilet facilities. Mr Gorman had visited the building to collect his wages until the early 1980s and described the use as a “motive power depot offices”. The condition of the building in December 1985 is not known but there is some evidence that it was empty (it was described as “abandoned” on the back of a contemporary photograph) and had been, and continued to be, vandalised. It is agreed that the building had been demolished by the valuation date (2 February 1990).

21. The dispute between the parties is over whether the building was in the Green Belt in December 1985. The Trustees say that it was not in the Green Belt because the South Yorkshire Structure Plan adopted in 1981 did not define the inner limits of the Green Belt but only its general outer limits. The adopted local plan at that time was the West Riding Council Development Plan Town Map for Cudworth & Grimethorpe, 1972 which excluded this part of the appeal site from the Green Belt.

22. The Council says that the 1981 Structure Plan determined the general extent of the Green Belt and that the Key Diagram showed that the appeal site came within it (Policy V15). The inner boundary of the Green Belt was defined in local plans and the 1983 draft plan (which was the most recent draft available in December 1985) showed the appeal site (excluding that part of it designated as site I7) as being within the Green Belt (proposals Map 2 and Policy E2).

23. The boundary of the Green Belt shown in the 1983 draft plan as it affected the building cannot be determined precisely. The building is not shown beneath the stippling used to designate the Green Belt and the large scale of the plan prevents sufficiently accurate measurements being taken.

24. There is no dispute that putting the building to a commercial use would require planning permission and that this would be regarded as a non-Green Belt use. The Council say that permission would not have been granted since it would have contravened Green Belt Policy E3 of the 1983 draft plan and Policy V18 of the Structure Plan. The Trustees argue that the alternative to the grant of planning permission for a commercial use would have been the continuing dereliction of the building in an area designated in the 1983 draft plan as an environmental improvement area. Mr Langham accepted that putting such a building to a non-Green Belt use would usually be regarded as inappropriate development. But he submitted that the circumstances of this case were sufficiently special to justify the grant of planning permission for the change of use of the building. For that reason planning permission would have been likely to be granted whether or not the building was in the Green Belt.

25. Mr Carter submitted that such an argument could be used by any owner of a redundant building in the Green Belt. But he accepted, in answer to questions from the Tribunal, that the Council would have found it very difficult to resist Mr Langham’s proposition that very special circumstances existed where the alternative to a change of use of the existing building to a commercial use was that it would have remained derelict and unused.

26. Mr Carter’s concession on this point was, in our view, correctly made. Although it is not possible to determine with certainty the precise boundaries of the Green Belt in this location it seems probable that they were intended to follow the boundaries of the statutory undertaker’s former freehold ownership which included the existing building. But there would be no benefit to either the Green Belt designation or to the proposals for environmental improvement to allow the building to fall into dereliction because it could not be used for any commercial purpose unconnected with the statutory undertaker’s (railway) use. It was not suggested that the building could be used for one of the Green Belt purposes listed in the Structure Plan (V18) and 1983 draft plan (E3) policies. In our judgment planning permission would have been granted in December 1985 for the material change of use of the former statutory undertaker’s building to offices and other uses (see paragraphs 48 to 52 below). Issue (ii): conditions

27. The classes of development agreed to be appropriate for the appeal site as at 10 December 1985 (see paragraph 14 above) and the commercial use of the existing building would have been granted planning permission subject to conditions. Many of those conditions have been agreed and are reproduced in the attached CAAD, but several remain disputed and these are considered below. Fuel recovery and deposit of waste (a) Restoration period

28. The Trustees submitted that the condition for restoration of the site following fuel recovery would have required completion within five years of the grant of planning permission since it would take three years to recover the fuel and landfill could not be completed immediately thereafter. There was nothing objectionable about a five year period and the Council’s landfill operations at nearby Cudworth North continued for many years (said by Ms Ward to be between 1979 and 1993).

29. The Council submitted that restoration would have been required within three years. This was the period specified in condition 3 of a planning permission (B/86/0334/BA) granted by the Council on 13 November 1986 for the proposed reclamation of fuel by surface working and subsequent restoration of the appeal site. The Council said that fuel recovery and landfill processes could take place simultaneously rather than sequentially as suggested by the Trustees.

30. In considering the conditions that would have been imposed upon a planning permission for fuel recovery and the subsequent deposit of waste the parties have generally adopted the conditions that were contained in planning permission B/86/0334/BA. But that development, as Ms Ward points out in her report, did not require landfill as a method of restoration. Ms Ward states that: “The restoration of the site following extraction of fuel deposits under B/86/0334/BA was not to restore the land to its original appearance, but to restore it to a recreational use with additional excavation to create [a] lake.”