Edwards v Rhondda Cynon Taff County Borough Council

Factual and Procedural Background

The Appellant is the widow of the former owner of two small parcels of agricultural land compulsorily acquired by the Respondent Authority in 2007 for the construction of a highway scheme known as the Church Village Bypass. The land included two parcels and a disused railway cutting, the latter owned by the council since 1995 but farmed by the Appellant and her late husband under an agreement. The Appellant applied for a Certificate of Appropriate Alternative Development (CAAD) under section 17 of the Land Compensation Act 1961 for tipping/land reclamation of approximately 3 acres, incorporating the parcels and cutting. The council issued a negative certificate in April 2013, refusing planning permission for development other than that proposed by the acquiring authority, citing policies that the proposed landfill would be unjustified countryside development detrimental to the area's character and appearance. The Appellant appealed this decision under section 18 of the 1961 Act.

Legal Issues Presented

1. Whether a Certificate of Appropriate Alternative Development for tipping/land reclamation should be granted under section 17 of the Land Compensation Act 1961.
2. The relevance and weight of National Planning Policy Guidance relative to Local Plan and Replacement Structure Plan policies in determining the appeal.
3. Whether the land qualifies as "previously developed land" under planning policy definitions.
4. The significance of the planning permission granted for the highway scheme in assessing the proposed alternative development.
5. Whether the proposed development would constitute justified development in the countryside with regard to visual and landscape impact.

Arguments of the Parties

Appellant's Arguments

• The proposed tipping to fill the disused railway cutting and restore the landform would be acceptable under relevant development plan policies, improving agricultural use.
• The council erred by assuming retention of the railway cutting and scrub was preferable to reclamation, ignoring the assumption that planning permission would be granted for the highway scheme.
• The proposal aligns with Local Plan policies permitting development in the countryside in the interests of agriculture or waste management schemes.
• The visual impact would be minimal or positive, with photomontages showing no adverse effect on landscape character or amenity.
• The council's refusal was based on manufactured reasons, ignoring expert advice and local support.
• The proposal should be considered on its merits, not as a means to reduce compensation payable for compulsory acquisition.
• National Planning Policy Wales (PPW) and TAN21 are material considerations but do not override the Local Plan; the proposal is consistent with these policies.
• The development is a reclamation scheme, not new development, aimed at reinstating agricultural use.

Respondent's Arguments

• The appeal must be considered afresh by the Upper Tribunal as if the application were made to it initially.
• The planning permission for the highway scheme must be assumed cancelled at the relevant date; no assumption should be made that it existed or that permission for alternative development would be granted on that basis.
• The proposed development was not contemplated by the development plan and must be assessed by general policies and material considerations including national policy.
• National Planning Policy is a material consideration but cannot override the statutory development plan.
• The land does not qualify as previously developed land because it has blended into the natural landscape and is used for agricultural or amenity purposes.
• The land is neither derelict nor contaminated and does not require reclamation under relevant policies.
• The proposal would be unjustified countryside development, contrary to local and national policies, primarily motivated by economic gain from tipping inert waste.
• The visual and landscape impact would be adverse, with the tipping operations altering character and appearance detrimentally.
• No agricultural justification or overriding need exists for the proposal, given the size and viability of the agricultural unit.

Table of Precedents Cited

Court's Reasoning and Analysis

The tribunal approached the appeal afresh, as mandated by section 18(2) of the Land Compensation Act 1961, considering the application as if made directly to it. The relevant date for planning policy assessment was agreed as 15 December 2005, the date of the CPO publication.

Regarding the planning permission for the highway scheme, the tribunal agreed with the Respondent that the scheme must be assumed cancelled at the relevant date, and no assumption should be made that it existed or that its permissions influence the alternative development. The tribunal rejected the Appellant's argument that a lesser impact proposal should be accepted because the highway scheme was acceptable.

The tribunal confirmed that planning decisions must be made in accordance with the development plan unless material considerations indicate otherwise, per section 38(6) of the Planning and Compulsory Purchase Act 2004. National Planning Policy Wales (PPW) and TAN21 were accepted as material considerations but do not override the statutory development plans.

Examining the Local Plan and Replacement Structure Plan policies, the tribunal found that the proposed tipping and reclamation could be considered development in the interests of agriculture and waste management schemes, and that the proposal would not unacceptably adversely affect character, visual amenity, or nature conservation value. The council's concerns about visual impact and character were not supported by evidence, and the proposed regrading would not produce an unnatural or bland appearance.

The tribunal found the land arguably fell within the definition of previously developed land, as the former railway cutting was still a significant feature, despite blending into the landscape. The national guidance on waste management, aimed primarily at larger recycling facilities, was less relevant given the short-term nature of the proposed tipping operations and the ultimate agricultural benefit.

The tribunal concluded the proposal would result in a more beneficial agricultural use of the land and was consistent with relevant policies. The conditions proposed by the council were appropriate to mitigate potential impacts. The tribunal rejected the council's negative certificate and issued a positive certificate.

Holding and Implications

The tribunal ALLOWED the appeal, cancelled the negative certificate issued by the local planning authority under section 17(4)(b) of the Land Compensation Act 1961, and issued a positive certificate confirming that planning permission would have been granted for the tipping/land reclamation scheme and for any development for which the land is to be acquired, but not for any other development.

The decision enables a proper valuation of compensation for the compulsory acquisition of the land, informed by the certificate of appropriate alternative development. No new precedent was established; the ruling applies the existing legal framework and planning policies to the facts of this case. The certificate does not constitute detailed planning permission but provides a broad context for compensation assessment.