Town and Country Planning (Scotland) Act 1954

PART V Compensation for Past Planning Decisions and Past Orders Revoking or Modifying Planning Permission

44 Scope of Part V

(1) The provisions of this Part of this Act shall have effect for enabling compensation to be claimed in respect of—

(a) planning decisions made before the commencement of this Act, whereby permission for the carrying out of new development of land to which this section applies was refused, or was granted subject to conditions;

(b) orders made before the commencement of this Act under section nineteen of the principal Act, whereby permission for the carrying out of new development of land to which this section applies was revoked or modified.

(2) This section applies to any land to which the planning decision or order related which satisfies the following conditions, that is to say—

(a) that at the time of the planning decision or order in question the land constituted the area, or part of the area, of a claim holding, and

(b) that the claim holding referred to in the preceding paragraph, or, where by virtue of any provision of this Act two or more separate claim holdings have been constituted thereout, one or more of those separate holdings whose area consisted of or included that land, was still subsisting at the commencement of this Act;

and in this Part of this Act, in relation to a claim for compensation in respect of any such claim holding so subsisting as aforesaid, any such land is referred to as " qualified land " and the claim holding is referred to as " the relevant holding ".

(3) Subsection (3) of section sixteen of this Act shall have effect for the purposes of this Part of this Act as it has effect for the purposes of Part II of this Act, with the substitution for the reference to a planning decision made after the commencement of this Act of a reference to a planning decision made before the commencement of this Act.

45 Right to compensation in respect of past planning decisions or past revocations and c. of planning permission

(1) Subject to the provisions of this Act, the holder of the relevant holding shall be entitled to compensation under this Pant of this Act in respect of such a planning decision or order as is mentioned in the last preceding section if—

(a) he is entitled to an interest in any qualified land, or

(b) having been entitled to an interest in any qualified land at the date of the decision or order, he sold that interest (otherwise than to a public authority possessing compulsory purchase powers) in pursuance of a contract made after that date and during the period beginning with the eighteenth day of November, nineteen hundred and fifty-two, and ending immediately before the commencement of this Act,

and the value of that interest or of another interest which has merged therein or, in the case of an interest extending to other land, the value of that or of that other interest in so far as it subsisted in that qualified land, was depreciated by the decision or order:

Provided that compensation shall not be payable under this Part of this Act in respect of an order under section nineteen of the principal Act so far as it relates to any particular land if—

(i) compensation in respect of that order is or was payable by the local planning authority under section twenty of that Act; and

(ii) by virtue of paragraph (b) of the proviso to subsection (1) of the said section twenty (which relates to development exempt from development charge by virtue of Part VII of that Act) the compensation includes or included compensation in respect of loss or damage consisting of the depreciation in value of an interest in that land.

(2) A person who has become entitled to the relevant holding by virtue of the exercise of any power conferred by an assignation in security shall be entitled to such compensation as aforesaid, notwithstanding that he does not satisfy the conditions set out in paragraphs (a) and (b) of the preceding subsection, if the assignor would have been entitled to such compensation if he had continued to be the holder of the relevant holding.

(3) For the purposes of this Part of this Act any question whether, or to what extent, the value of an interest in land, or of an interest in so far as it subsisted in qualified land, was depreciated by a planning decision shall be determined in accordance with the provisions of section twenty-six of this Act:

Provided that those provisions shall apply for the purposes of this Part of this Act—

(a) as if the reference in subsection (1) of the said section twenty-six to Part II of this Act were a reference to this Part of this Act; and

(b) as if Part VI of the principal Act had not been enacted ;

and in the application of subsection (2) of the said section twenty-six in a case to which paragraph (b) of subsection (1) of this section applies, no account shall be taken of any grant of, or undertaking to grant, planning permission made or given after the making of the contract of sale.

(4) For the purposes of the application of this Part of this Act with respect to such a planning decision as aforesaid, subsections (2), (3), (4) and (6) of section nineteen of this Act, subsections (1), (2), (6) and (7) of section twenty, and section twenty-one, of this Act, shall have effect as they have effect for the purposes of Part II of this Act:

Provided that, in a case to which paragraph (b) of subsection (1) of this section applies, for the reference in the said section twenty-one to the Secretary of State's giving notice of his determination in respect of the claim for compensation there shall be substituted a reference to the making of the contract of sale.

(5) In determining for the purposes of a claim for compensation under this Part of this Act whether, or to what extent, the value of an interest in land was depreciated by such an order as aforesaid—

(a) regard shall be had to any compensation which has become payable to the person entitled to that interest in respect of that order under section twenty of the principal Act otherwise than by virtue of the proviso to subsection (1) of that section ;

(b) any grant of, or undertaking to grant, planning permission made or given during the period between the making of the order and the time when the Secretary of State gives notice of his determination in respect of that claim, being a grant or undertaking which is in force at the end of that period, shall be taken into account as if it had been in force at the beginning of that period;

(c) Part VI of the principal Act shall be deemed not to have applied after the date when the order was made:

Provided that, in a case to which paragraph (b) of subsection (1) of this section applies, no account shall be taken of any grant or undertaking made or given after the making of the contract of sale.

(6) Where the interest to which the holder of the relevant holding is entitled or, as the case may be, which he sold, is or was subject to a lease granted after the planning decision or order and on or after the eighteenth day of November, nineteen hundred and fifty-two, the preceding provisions of this section shall have effect as if that lease had not been granted.

46 General provisions as to amount of compensation for past planning decisions, revocations and c

(1) Subject to the next following subsection, where a person is entitled to compensation under this Part of this Act in respect of the depreciation of the value of an interest in qualified land by a planning decision or order, the principal amount of the compensation shall be whichever is the less of the following amounts, that is to say—

(a) the amount by which the value of the interest, or, in the case of an interest extending to other land, the amount by which the value /of the interest in so far as it subsisted in the qualified land, was depreciated by the decision or order ; or

(b) the value of the relevant holding at the commencement of this Act or, if the qualified land in which the interest subsisted constituted part only of the area of the relevant holding, the fraction of the said value which attached to that qualified land:

Provided that where the same person" is entitled to such compensation as aforesaid in respect of more than one relevant holding, or in respect of more than one interest, or in respect both of more than one relevant holding and of more than one interest, the aggregate principal amount payable to that person by way of such compensation in respect of all interests in respect of which he is so entitled in so far as they subsisted in the same land shall not exceed whichever is the less of the following amounts, that is to say—

(i) the aggregate of the amounts by which the value of each respectively of those interests in so far as it subsisted in that land was depreciated by the decision or order; or

(ii) the aggregate of the fractions of the respective values of all relevant holdings of which that person is the holder which attached to that land.

(2) If the whole of the land to which the planning decision or order related and in which the interest subsisted is not qualified land, then, for the purposes of paragraph (a) of the preceding subsection, the depreciation of the value of the interest by reason of the decision or order shall first be ascertained with reference to the whole of the land aforesaid and shall then be apportioned between the parts of that land which respectively are and are not qualified land according to the nature of those parts and the effect of the planning decision or order in relation thereto.

47 Claims for compensation under Part V, and review of past decisions and orders

(1) The provisions of sections twenty-two and twenty-seven of this Act shall, with the necessary modifications, apply for the purposes of this Part of this Act:

Provided that subsection (2) of the said section twenty-two shall so apply with the substitution, for the reference to the date of the planning decision, of a reference to the commencement of this Act.

(2) The following provisions of this section shall have effect where one or more claims for compensation under this Part of this Act have been received by the Secretary of State and the claim, or (if there is more than one) one or more of the claims, has not been withdrawn.

(3) If the claim is in respect of a refusal of permission or of a grant of permission subject to conditions, and it appears to the Secretary of State that, if an application for the like planning permission were made, and were referred to him for determination, he would make a decision more favourable to the applicant, the Secretary of State may give a direction substituting that decision for the planning decision to which the claim relates.

In this subsection, the reference to a decision more favourable to the applicant shall be construed—

(a) in relation to a refusal of permission, as a reference to a decision granting the permission, either unconditionally or subject to conditions, and either as respects the whole or as respects part of the land to which the application for permission related ; and

(b) in relation to a grant of permission subject to conditions, as a reference to a decision granting the permission applied for unconditionally or subject to less stringent conditions.

(4) If the claim is in respect of a refusal of planning permission, or an order revoking planning permission, and it appears to the Secretary of State that permission could properly be granted for some development of the land in question, other than the development to which the application for permission related, the Secretary of State may give a direction that the provisions of the principal Act, and of this Act, shall have effect in relation to that application, and to the planning decision or order to which the claim relates, as if that decision or order had been a decision of the Secretary of State which included an undertaking to grant planning permission for that development.

(5) The provisions of section twenty-four of this Act shall, with the necessary modifications, apply for the purposes of this section.

48 Payment of compensation under Part V, and supplementary provisions relating thereto

(1) Where compensation is payable in accordance with the preceding provisions of this Part of this Act, the Secretary of State shall pay to the person entitled thereto the principal amount of the compensation payable, together with interest thereon at the rate of three and one-half per cent. per annum from the first day of July, nineteen hundred and forty-eight, to the date of payment:

Provided that if the payment is made after the thirtieth day of June, nineteen hundred and fifty-five, the interest shall be calculated to that day instead of the date of payment.

(2) Where compensation under this Part of this Act is payable in respect of a planning decision or order by reference to a claim holding, then, for the purposes of the application of this Part of this Act to any subsequent planning decision or order, and for the purposes of Parts II and III of this Act—

(a) if the principal amount of the compensation is equal to the value of the claim holding at the commencement of this Act (ascertained apart from this section), the holding shall be deemed to have been extinguished immediately before the commencement of this Act;

(b) if the principal amount of the compensation is less than the value of the claim holding at the commencement of this Act (ascertained apart from this section), the value of the holding shall be deemed to have been reduced, immediately before the commencement of this Act, by the principal amount of the compensation:

Provided that if at any time an amount becomes recoverable under section thirty of this Act, as applied by the subsequent provisions of this section, in respect of that compensation, then, for the purposes of Parts II and III of this Act, paragraphs (a) and (b) of this subsection shall have effect as from that time as if the principal amount of that compensation had been reduced by a sum equal to seven-eighths of the amount which has so become recoverable.

(3) Where, in the case of any claim holding (in this subsection referred to as " the parent holding "), compensation under this Part of this Act is payable in respect of the depreciation of an interest in land by one or more planning decisions or orders, and any such decision or order did not extend to the whole of the area of the parent holding, then, both for the purposes of the last preceding subsection and for the purposes of Parts II and III of this Act—

(a) the parent holding shall be treated as having been divided immediately before the commencement of this Act into as many separate claim holdings, with such areas, as may be necessary to ensure that in the case of each holding either any such decision or order extending to the area of that holding extended to the whole thereof or that no such decision or order extended to the area of that holding ;

(b) the value of each of the separate holdings respectively shall be taken to be that fraction of the value of the parent holding which then attached to the part of the area of the parent holding constituting the area of the separate holding;

(c) the authority determining the amount of any such compensation shall apportion that amount between the areas of the separate claim holdings to which the decision or order in question extended in such manner as appears to that authority proper, and the portion of that amount apportioned to the area of any separate claim holding shall be taken to be compensation payable under this Part of this Act in respect of that claim holding.

(4) The provisions of sections twenty-eight, twenty-nine and thirty of this Act, except subsection (10) of the said section thirty, shall have effect with the necessary modifications in relation to compensation under this Part of this Act (whether by way of principal or by way of interest), and to development of land to which such compensation relates, as they have effect in relation to compensation under Part II of this Act and to development of land to which that compensation relates, and shall so apply as if references in the said section twenty-eight and twenty-nine to a planning decision included references to an order under section nineteen of the principal Act:

Provided that, in a case where the compensation under this Part of this Act specified in a notice recorded under the said section twenty-nine as applied by this subsection became payable in respect of an order modifying planning permission, the said section thirty shall not apply to development in accordance with that permission as modified by the order.