Quintain City Park Gate Birmingham Limited v The Secretary of State for Transport [2025] UKUT 312 (LC)

[2025] UKUT 312 (LC)Case No LC-2019-287
IN THE UPPER TRIBUNAL (LANDS CHAMBER)
IN THE MATTER OF A NOTICE OF REFERENCE
Venue Royal Courts of Justice, Strand,
Between
QUINTAIN CITY PARK GATE BIRMINGHAM LIMITEDAppellantTHE SECRETARY OF STATE FOR TRANSPORTRespondent
London WC2A 2LL
26 September 2025
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – PLANNING PERMISSION – Certificate of Appropriate Alternative Development – Tribunal’s function in CAAD appeals – relevance of CAADs and CAAD applications for neighbouring sites – Certificate granted in form proposed by respondent
Land at City Park Gate,BirminghamMartin Rodger KC, Deputy Chamber President andPeter D McCrea OBE FRICS FCIArb29, 30, 31 July and 1 August 2025David Elvin KC and Richard Moules KC, instructed by Bryan Cave Leighton Paisner LLP for appellantGuy Williams KC, Nina Pindham, Isabella Buono and Brendan Brett, instructed by DLA Piper UK LLP for respondent© CROWN COPYRIGHT 2025The following cases are referred to in this decision:East Quayside 12 LLP v Newcastle City Council[2023] EWCA Civ 359First Secretary of State v Sainsbury’s Supermarkets Ltd[2008] JPL 973Fletcher Estates (Harlescott) Ltd v Secretary of State for Environment[2000] 2 AC 307Mount Cook Land Ltd v Westminster City Council[2003] EWCA Civ 1346; [2004] JPL 470Nofax Station Road Ltd v Barnet LBC[2025] UKUT 241 (LC)Pearce v Secretary of State for Business Energy and Industrial Strategy[2021] EWHC 326 (Admin); [2022] Env L R 4Pro Investments v Hounslow LBC[2019] UKUT 319 (LC)R (Langley Park School for Girls) v Bromley LBC[2020] 1 P & CR 10R (Littlewood) v Bassetlaw District Council[2009] Env. L.R. 407R (Tesco Stores Ltd) v Stockport MBC[2025] EWCA Civ 610Secretary of State for Transport v Curzon Park Ltd & Ors[2023] UKSC 30, [2023] 1 WLR 2762; on appeal from [2021] EWCA Civ 651; on appeal from [2020] UKUT 37 (LC), [2020] RVR 154Secretary of State for Transport v Quintain City Park Gate Birmingham Ltd & Ors[2025] UKUT 7 (LC), [2025] RVR 102Tesco Stores Ltd v Dundee City Council[2012] UKSC 13, [2012] PTSR 983Trusthouse Forte Hotels Ltd v Secretary of State for Environment (1986) 53 P&CR 293

Introduction

[1]City Park Gate is one of four adjoining sites taken in 2018 by the Secretary of State for Transport for the construction of a new railway station at Curzon Street in the Eastside quarter of Birmingham. The new station will be the terminus of HS2, the high-speed rail link between London and the West Midlands. The owners of each of the four sites are entitled to compensation for the compulsory acquisition of their property and, in the absence of agreement, the amount of that compensation is to be determined by this Tribunal on a reference under the Land Compensation Act 1961 (“the LCA”). This decision is a further step towards that determination.[2]The decision is made on an appeal under section 18 of the LCA by Quintain City Park Gate Birmingham Ltd (which we will call “Quintain”) against the non-determination by the local planning authority, Birmingham City Council (“the Council”), of an application by Quintain for a certificate under section 17 of the LCA. The purpose of such a certificate is toidentify appropriate alternative development for the land taken to assist in determining its value. We will refer to it as a “CAAD”, or simply as a certificate.[3]At earlier stages of these proceedings, Quintain’s appeal has been considered together with similar appeals by the landowners of the three adjoining sites which were also taken for the new Curzon Street Station. Two important issues common to all four sites have already been determined. The first, an issue of law on which the Tribunal’s decision was the subject of appeals to the Court of Appeal and the Supreme Court, concerned the relevance of one CAAD application or decision to a decision concerning a neighbouring site. The second, an issue of fact reflecting the proximity of the four sites to the main campuses of both Aston University and Birmingham City University, concerned the level of planning need in Birmingham at the valuation date for purpose built student accommodation (“PBSA”).[4]We now focus on each of the sites individually, beginning with Quintain’s City Park Gate.[5]The key date for the purpose of this appeal is 17 July 2018, the date on which the Secretary of State took possession pursuant to a general vesting declaration executed on 3 April 2018. That is the valuation date for the determination of Quintain’s entitlement to compensation. At this stage it is also the date at which the availability of planning permission for appropriate alternative development is to be assessed.[6]In its broadest outline Quintain’s case is that a CAAD should be issued for a mixed use development of up to 99,490 sqm (GIA) including retail, office, residential, hotel and PBSA uses comprised in blocks ranging in height from 8 to 32 storeys; a key feature of Quintain’s proposal is that it would allow the landowner complete flexibility to determine the balance between residential and PBSA uses and to include up to 1,940 new student bed spaces.[7]The Secretary of State agrees that a CAAD should be issued for substantial mixed use development but takes issue with the scale of Quintain’s proposals on townscape, heritage and design grounds and separately challenges the principle that the certificate should leave the landowner free to choose how much PBSA should be developed, potentially to the exclusion of any general needs and affordable housing. The Secretary of State considers that at the valuation date appropriate alternative development comprised up to 75,017 sqm (GIA) in blocks of between 3 and 24 storeys, including retail, office, residential and PBSA uses, and proposes conditions which would prevent the development of more than 18,097 sqm of PBSA (sufficient for 554 student bed spaces) and which would require the provision of at least 27,154 sqm of general residential accommodation.[8]We are not required to choose between the parties’ proposals. Quintain accepts that the development identified by the Secretary of State is development for which planning permission could reasonably have been expected to have been granted on the valuation date. Quintain’s position is that the Secretary of State’s proposal is neither the maximum nor the optimum form of development for which planning permission could reasonably have been expected and that its own proposal should also be granted a certificate.[9]Although a CAAD might often include a condition requiring the provision of affordable housing as part of any residential development, the parties agreed to defer consideration of that issue until a further hearing to determine the amount of compensation payable.[10]We received expert evidence on the property market in Birmingham and the circumstances known to it and the wider market at the valuation date from Mr Michael Maguire MRICS and Mr Richard Owen FRICS. Evidence on urban design and architecture was given by Mr Stephen Townsend RIBA and Mr Robert King RIBA. Mr Richard Coleman RIBA and Mrs Amy Jones MCIfA gave evidence on the impact of the alternative schemes of development on two heritage assets, the Grade II listed Fox and Grapes public house, and the Grade II listed Moor Street railway station. Finally, evidence on planning issues was given by Mr Paul Rouse MRICS and Mr John Adams MRICS. Shortly after the hearing, we undertook a site inspection of the Appeal Site and surrounding developments following a walking route suggested by the parties.

Relevant legislation

[11]The LCA makes provision for the assessment of compensation for land which has been compulsorily acquired. Section 14 identifies certain assumptions which may be made regarding planning permission when the value of the land taken is determined under rule (2) in section 5. The LCA was amended with effect from 30 January 2025, but we are required to apply it in the form in force at the valuation date and the references which follow are to that form.[12]Section 14(2) provided that account may be taken(a) of any planning permission in force on the valuation date for development on the reference land or other land, and(b) of the prospect of planning permission being granted on or after that date for development “whether on the relevant land or other land”. Section 14(3) provided that it may also be assumed that planning permission was in force on the valuation date for any development that was “appropriate alternative development”. Section 14(4) then explained:
“(4) For the purposes of this section, development is “appropriate alternative development” if — (a) it is development, on the relevant land alone or on the relevant land together with other land, other than development for which planning permission is in force at the relevant valuation date, and (b) on the assumptions set out in subsection (5) but otherwise in the circumstances known to the market at the relevant valuation date, planning permission for the development could at that date reasonably have been expected to be granted on an application decided — (i) on that date, or (ii) at a time after that date.” (a) it is development, on the relevant land alone or on the relevant land together with other land, other than development for which planning permission is in force at the relevant valuation date, and (i) on that date, or (ii) at a time after that date.”
[13]The assumptions referred to in section 14(4)(b) and which are set out in section 14(5) were: that the scheme underlying the acquisition had been cancelled on the launch date; that no action had been taken by the acquiring authority wholly or mainly for the purposes of the scheme; and that there was no prospect of the same scheme, or any other project to meet the same or substantially the same need, being carried out in the exercise of a statutory function, or by the exercise of compulsory purchase powers. These are referred to collectively as “the cancellation assumption”. It is agreed between the parties that the “launch date” for the purpose of the cancellation assumption is 25 November 2013, that being the date on which the Government deposited a hybrid bill (which ultimately became the High Speed Rail (London-West Midlands) Act 2017 (the 2017 Act)) with Parliament seeking powers for the construction and operation of Phase 1 of HS2.[14]Section 14(4)(b) therefore contemplates a planning permission which on the valuation date could reasonably have been expected to have been granted for development on the land, alone or together with other land, on the stated assumptions, “but otherwise in the circumstances known to the market”. No assumptions other than those specifically identified are required to be made and the circumstances must otherwise be taken to have been as they were in reality on the relevant date. Nor is it permissible to depart from the reality principle by speculating about what would have been likely to have happened between the cancellation date and the valuation date if the scheme had indeed been cancelled (Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 AC 307, at p. 324; Secretary of State for Transport v Curzon Park Ltd [2023] UKSC 30, at [62]-[64]).[15]Primary responsibility for determining and certifying what is appropriate alternative development lies with the local planning authority, with a right of appeal to this Tribunal. Section 17 (which has also been heavily amended since the valuation date) permits the acquiring authority or the landowner whose land has been taken to apply to the local planning authority for a CAAD. The CAAD was to identify every description of development which the planning authority considered was appropriate alternative development and provide a general indication of any conditions and obligations to which planning permission for that development could reasonably have been expected to be subject. If the local planning authority considered that there was no appropriate alternative development it was required to issue a certificate containing a statement to that effect (often referred to as a nil, or negative, certificate). Where an authority failed to issue a certificate within the time allowed by the statute, or any extension agreed with the parties, it was taken to have issued a nil certificate (section 18(3)).[16]Section 18(1) provides a right of appeal to the Tribunal against a local planning authority’s decision on an application under section 17. When determining such an appeal, the Tribunal must consider the matters to which the certificate relates as if the application under section 17 had been made to it in the first place (section 18(2)). Subject to the qualification in paragraph 18 below, the Tribunal stands in the shoes of the local planning authority, applying its own judgment to the issues which arise, as if it was determining an application for planning permission. In accordance with section 38(6) of the Planning and Compulsory Purchase Act 2004, the Tribunal will therefore determine the application in accordance with the statutory development plan unless material considerations indicate otherwise. While it may properly have regard to the views of the local planning authority, it will not adopt a view of the law, including an interpretation of planning policy, which it considers to be mistaken, nor will it adopt the authority’s view on matters of planning judgment if it forms a different view. None of this was contentious.[17]The same right of appeal under section 18 is available where the local planning authority has not issued a certificate within the time allowed and so is deemed to have issued a nil-certificate, as occurred in this appeal.

The role of the Tribunal on an appeal under section 18

[18]In its form in force at the valuation date, the local planning authority was directed by section 17(5) to include in its certificate “every description of development (whether specified in the application or not)” which it considered would have obtained planning permission. On appeal, the Tribunal is directed by section 18(2)(a) to consider the matters to which the certificate relates as if the application under section 17 had been made to it in the first place. Where the Tribunal cancels a certificate, section 18(2)(b) provides that it must issue a different certificate in its place, “as the Upper Tribunal may consider appropriate”. We do not interpret these directions as imposing on the Tribunal the same duty as is imposed on the local planning authority to certify “every description” of development for which planning permission would be granted. Our task is necessarily a narrower one. Unlike the local planning authority, the Tribunal’s function is judicial; it is to resolve a dispute, the terms of which are set by the parties. Our task is to consider development which has been proposed by the parties. We must base our determination on evidence, so the extent to which we can modify the parties’ proposals is limited. Unlike a planning application, or even an application for a certificate under section 17, an appeal under section 18 is not an iterative process. If we conclude that the development proposed by an appellant is inconsistent with policy in some respect, we cannot invite the appellant to think again. Our ability to redesign the appellant’s scheme and to issue a different certificate describing a lesser form of development is constrained by the evidence we have received (see Pro Investments v Hounslow LBC [2019] UKUT 319 (LC), at [126], and Nofax Station Road Ltd v Barnet LBC [2025] UKUT 241 (LC), at [46] and [52]).

The Appeal Site and its locality

[19]The four neighbouring sites which will accommodate the new Curzon Street Station are located at the eastern edge of Birmingham city centre in the area known as the Eastside Quarter. Each is a substantial development site in its own right. At earlier stages of the proceedings the sites have been identified as sites 1, 2, 3 and 4, moving from west to east. We will retain that referencing for sites 2, 3 and 4 but in this decision we will refer to site 1, City Park Gate, as “the Appeal Site”.[20]The Appeal Site is the most westerly of the four sites, closest to the city centre and separated from it only by Moor Street Queensway, part of the city’s A47 inner ring road. It is a large site (although not the largest of the four) comprising 1.52 ha of previously developed land bounded by Moor Street Queensway to the west, Moor Street Station and the culverted Rugby railway line to the south, Park Street to the east and the Clayton Hotel fronted by a pedestrian boulevard to the north.[21]Until the mid-twentieth century the Appeal Site was an area of small factories and workshops, interspersed with modest terraced housing. It was laid out in a grid pattern with Freeman Street and Seymour Street running east-west through the site, connecting Moor Street Queensway to Park Street running north-south and flanking the site. The Appeal Site was thus divided into three blocks, with a larger rectangular block in the centre and smaller (approximately) triangular blocks at the northern and southern ends.[22]The post war decline of the area was accelerated by the completion in 1965 of the city’s “concrete collar”, the inner ring road which separated Eastside decisively from the city centre core and which included an elevated roundabout at Masshouse Circus, adjoining the northwest corner of the Appeal Site. Masshouse Circus was demolished in 2002 and by 2007 the Appeal Site had also been cleared in anticipation of development which would reconnect it to the core and expand the city centre eastwards.[23]The sole active use of the Appeal Site at the valuation date was to accommodate large surface level car parks with only a single building, the derelict and fire damaged Grade II listed Fox and Grapes, occupying the corner of Park Street and Freeman Street. This building was demolished in 2018 under powers conferred by the 2017 Act.[24]Until its interest was compulsorily acquired, Quintain owned a long lease of the Appeal Site, held from the Council as freeholder.[25]To the north of the Appeal Site is the Clayton Hotel. By the valuation date two high rise residential buildings had been constructed beyond the hotel, known as Masshouse and The Hive, each of 16 storeys. To the west of Masshouse, high rise and medium rise residential development of 27, 16 and 9 storeys was under construction at Exchange Square (within the city core area).[26]The core city centre retail area is within 50 metres of the Appeal Site to the west, on the opposite side of Moor Street Queensway, and the Bullring shopping centre is approximately 150 metres to the south, separated from the Appeal Site by the railway line, Moor Street Station, and Moor Street itself.[27]To the east of the Appeal Site, on the opposite side of Park Street, was Park Street Gardens, a former burial ground with mature landscaping, which is part of site 2. The Gardens adjoined Eastside City Park, a long, narrow urban park opened in 2012 which borders sites 2 and 3. By the valuation date sites 2, 3 and 4 had all been cleared, ready for development, with only two buildings remaining: the principal building of the original Curzon Street railway station, which is Grade I listed and dates from 1838, and the Grade II listed Woodman public house. The wider heritage landscape includes the Digbeth, Deritend and Bordesley and Warwick Bar conservation areas on the southern side of the railways.[28]Curzon Street itself, with the HS2 terminus being developed to the south, is bounded to the north by new development (some of it postdating the valuation date). University buildings abut the City Park, alongside other modern buildings contributing to the character of the area as one of the City’s education hubs. Millennium Point houses a science museum, an exhibition and conference centre and other cultural and educational institutions. Further east, at the far end of Curzon Street, Eastside Locks is a substantial mixed-use development including residential, office and education uses.

The planning history of the Appeal Site and neighbouring sites

[29]The Appeal Site was a small part of a much larger site earmarked by the Council for redevelopment following the demolition of Masshouse Circus and the elevated section of Moor Street Queensway in 2002. Outline planning permission for mixed use development was granted on a 2002 application by the Council for six plots in the area, two of which covered the Appeal Site. That permission contemplated more than 48,000 sqm of new development on the Appeal Site itself, in buildings of between three and eight storeys, including more than 300 housing units and significant office accommodation. It was not implemented in relation to the Appeal Site and had lapsed by the valuation date.[30]Planning permission was next granted in November 2007 for development of the Appeal Site together with other land to the north (now the site of the Clayton Hotel). That permission, granted in outline, was for a major mixed-use development of up to 93,700 sqm including the hotel, shops, financial and professional services, restaurants and cafes, hot food takeaways, a foodstore, offices, residential and associated car parking, landscaping, highways and infrastructure (“the 2007 Permission”). The decision notice provided that any application for approval of reserved matters should be made within ten years and development must be begun within a year of final approval of reserved matters.[31]The 2007 Permission was subsequently amended in April 2008 following a section 73 application to allow additional flexibility in the choice of uses, with no requirement for a minimum allocation to any particular use other than retail, but with a mix of uses secured by specifying a use or uses for particular buildings on a parameters plan.[32]An application for reserved matters approval was granted in October 2008 to permit the erection of 23,074 sqm of offices in two eight storey buildings at the southern end of the Appeal Site, overlooking Moor Street Station. These were never built, but it is agreed that the 2008 reserved matters approval was extant and capable of implementation at the valuation date. The remainder of the 2007 Permission had lapsed. The ability to erect two office buildings on the scale of the extant permission is agreed to be a material consideration when determining what development is likely to have been permitted at the Appeal Site at the valuation date.[33]A number of planning permissions for development on sites 2, 3 and 4 are also relevant.[34]An outline planning permission granted in January 2009 was extant for a development at New Canal Street (part of site 2). It envisaged a 55,000 sqm university campus including a concert hall and theatre, retail, parking, landscaping and associated works on land belonging to Birmingham City University. Reserved matters approval for the first phase of this development was obtained in March 2010 but did not progress. With the advent of the HS2 scheme the University found a site elsewhere in Eastside for its campus.[35]In June 2008 Curzon Park Limited had obtained outline planning permission for development on site 3 of up to 130,000 sqm comprising offices, residential, a hotel, retail, a medical centre and leisure uses. Certain uses were optional while others, specifically office and residential, were governed by minimum and maximum floor space conditions.[36]Together with adjoining land which was not acquired by the Secretary of State the Curzon Gateway site belonging to the Eastside Partnership (site 4) had the benefit of a full planning permission granted in February 2007 for a canal-side development of 260 dwellings and 748 student bed spaces with ancillary uses. By the valuation date construction of PBSA on the adjoining land was complete and operational.

The proceedings so far

[37]Quintain applied to the Council for a CAAD on 11 February 2019, seven months after the Secretary of State took possession of the Appeal Site. The development for which it sought a certificate was described as:
“Mixed use development of up to 108,000 sq.m GIA comprising retail, financial and professional, café and restaurant and hot food takeaway (use classes A1, A2, A3, A5) office (use class B1), residential (use class C3) student accommodation (sui generis) hotel (use class C1) including tall buildings up to 30 residential storeys high.”
At the request of the Council the proposed height of some of the buildings was reduced and, as a result, the gross internal area of the development shrank to 99,490 sq m. An indicative layout and other details were provided in a design and access statement.[38]The Council was unable to determine the application within the permitted two months and on 10 May 2019 Quintain filed a notice of reference with the Tribunal appealing the non-determination. The Council is not a party to the proceedings and on 29 May 2019, it completed its consideration of the application and issued a certificate describing development in the revised form requested by Quintain. The only limited differences between the proposals which Quintain now seeks and the Council’s certificate relate to affordable housing.[39]The status of a certificate issued after the time permitted by the LCA is ambiguous and the certificate issued by the Council has been referred to by the parties as a “purported CAAD”. Their agreed position is that the appeal is not against the purported CAAD but is against the nil-certificate which section 18(3) deemed to have been issued on the expiry of the time limit.[40]It is an important feature of the Curzon Street proceedings as a whole that none of the parties asked the Council to issue a single CAAD covering all four sites. Each of the dispossessed owners sought a certificate for their own site alone. The Secretary of State has not sought any certificate and in particular has never sought a comprehensive certificate specifying what would be appropriate alternative development for the whole of the land taken from all four owners. Section 14(4) defines “appropriate alternative development” as development “on the relevant land alone or on the relevant land together with other land” and there appears to be no reason why land in different ownerships could not be comprised in a single application. Such an application would have been a substantial undertaking, but it would have enabled the comprehensive appraisal which the Secretary of State has always sought.[41]The Tribunal first determined as a preliminary issue whether, and if so how, development proposed as appropriate alternative development in one CAAD application could be taken into account when determining a CAAD application for different land (Secretary of State for Transport v Curzon Park Ltd & Ors [2020] UKUT 37 (LC)). The answer was that in determining the development for which planning permission could reasonably have been expected to be granted, the decision maker was not required to assume that other CAAD applications or decisions had never been made but should treat such applications and decisions as what they were, and not as notional applications for, or grants of, planning permission. They were not material planning considerations. Subject to those boundaries, it was for the decision maker to give the applications and decisions such evidential weight as they thought appropriate.[42]The Tribunal’s decision was subsequently affirmed by the Supreme Court ([2023] UKSC 30, at [100] restoring the declaration the Tribunal had made, on appeal from the Court of Appeal, [2021] EWCA Civ 651).[43]The Tribunal has also ruled on the need for purpose built student accommodation at the valuation dates in Secretary of State for Transport v Quintain City Park Gate Birmingham Ltd [2025] UKUT 7 (LC). We concluded that a need had been demonstrated for accommodation for around 20,000 students in the city, including about 9,000 in the city centre.

The Supreme Court’s decision

[44]In their joint judgment Lord Sales and Lord Hamblen, (with whom Lord Kitchin, Lord Leggatt and Lady Rose agreed)identified six principal issues at [55], the first of which was whether taking account of CAAD applications or decisions was precluded by the cancellation assumption. Quintain’s cancellation assumption case[45]Quintain’s case before the Supreme Court, recorded at [59], was that the cancellation assumption required the existence of CAADs or applications for CAADs to be entirely disregarded, because they were a direct consequence of the HS2 scheme so would not have existed if the scheme had been cancelled. The Court rejected that argument, for the reasons it gave at [60]-[65]:
“60. The question to be addressed under section 14(4) is whether at the valuation date planning permission could reasonably have been expected to be granted. That question is to be determined making the assumptions required in subsection (5) but otherwise “in the circumstances known to the market at the relevant valuation date”
. In answering that question no restriction is placed on the evidence which can or cannot be used other than that it must be circumstances known to the market. If it is, then any relevant real world evidence may be relied upon.[61]For example, in the real world a CAAD application or decision may have been made in relation to land other than the land in issue prior to the valuation date and this might be known to the market. If the making of that application was relevant to whether planning permission could reasonably have been expected to be granted in respect of the land in issue (which is a different question), then it could properly be taken into account. There is nothing in section 14 which precludes consideration of relevant, real world evidence which is known to the market as at the relevant valuation date for the land in issue.[62]The statutory question has to be answered on the assumptions set out in section 14(5) but no further assumptions, including consequential assumptions, are required to be made. As the Upper Tribunal stated at para 46:
“It is true that all four CAAD applications were a consequence of the scheme, and that, but for the scheme they would not have been made. But in the absence of a statutory direction that is not a good enough reason to assume them away or disregard them.”
[63]As Lord Hope of Craighead stated in Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 AC 307 (“Fletcher Estates”), at p 324, CAAD applications should be determined by “applying ordinary planning principles to the existing circumstances” at the relevant date. Provided they are known to the market, there is no reason to exclude from consideration any relevant existing circumstances.[64]This is consistent with the reality principle, a fundamental principle of valuation. As Lord Neuberger stated in Spirerose at para 50: “…if a statute directs that property is to be valued on an open market basis as at a certain date, one would not expect any counterfactual assumptions to be made other than those which are inherent in the valuation exercise (such as the assumption that the property has been on the market and is the subject of a sale agreement on the valuation date) or those which are directed by the statute”.[65]In addition, it would be odd to say that evidence which happens to exist in the real world which is capable of providing relevant assistance in answering the questions to be addressed in constructing the cancelled scheme world under the LCA regime should be ignored. It would require clear statutory language to produce such an effect, and there is none in the LCA. So if CAAD applications or decisions are capable of being a source of relevant evidence, the LCA does not preclude reference being made to them.” “…if a statute directs that property is to be valued on an open market basis as at a certain date, one would not expect any counterfactual assumptions to be made other than those which are inherent in the valuation exercise (such as the assumption that the property has been on the market and is the subject of a sale agreement on the valuation date) or those which are directed by the statute”.[46]At this stage of the Supreme Court’s analysis, it was concerned only with the admissibility of evidence, as is clear in particular from [60] and [65]. The answer to the admissibility question was that no restriction was placed by section 14(4)-(5) on the evidence which could be relied on in a CAAD application other than that it must be of circumstances known to the market at the relevant valuation date. The questions which followed were concerned with the use which could be made of evidence which shed light on circumstances known to the market about the Appeal Site or about the adjoining sites, where that evidence was of, or was contained in, an application for a CAAD or a granted certificate. CAADs as evidence or sources of evidence[47]The Supreme Court recorded, at [67], that there was substantial agreement between the parties regarding the ways in which, where an application is made for planning permission to develop land in a particular way, the possibility of development of other land, or the existence of applications for planning permission to develop other land, or the existence of planning permission already granted to develop other land, may be material considerations affecting whether planning permission should be granted for development of the land at issue. In particular:(1) The existence of alternative sites to satisfy a particular need in the public interest may be relevant to the question whether the grant of permission for the development of the land at issue is appropriate, if the need could be met at less cost to other aspects of the public interest by equivalent development on other sites which it is reasonable to expect may be developed or brought forward for development within a reasonable time (“the alternative sites point”);(2) Where a number of proposals are put forward for the development of different parcels of land, it may be relevant to take into account the cumulative effects of those proposals adverse to some aspect of the public interest when deciding whether to grant planning permission in relation to a particular site (“the cumulative impact point”); and(3) Sites may be designated in a development plan or permission may have been granted for types of development on particular land, say for industrial use, which would be incompatible with the grant of planning permission for other forms of development, say for residential use, on neighbouring land (“the incompatibility point”).[48]Having described how in principle the prospect of development on other land may be a material planning consideration in the real world, the Supreme Court went on to consider the circumstances in which CAAD applications and decisions relating to land other than the land in issue may be relevant and could be taken into account in a determination under section 17.[49]The Supreme Court restated an important principle at [74] to [76], where it confirmed that “no process of speculation about the notional period between the cancellation date and the valuation date is authorised” by section 14. Because such speculation was not authorised by the statute, it was precluded by the reality principle. It could not therefore be assumed that notional applications for planning permission had been made or granted or that other imaginary events had occurred during that period. That was consistent with Fletcher Estates and with Parliament’s intention with regard to the operation of the CAAD regime, as Lord Sales and Lord Hamblen explained at [76]:
“It is not plausible to infer that Parliament intended the section 14 regime to operate on the basis of such an uncertain and speculative methodology. On the contrary, section 14 is drafted so as to specify a reasonably certain process of assessment of the value of the land in issue, focusing on circumstances as they actually exist (subject to the cancellation assumption) at the valuation date and based on an objective set of circumstances as known to the market at that date. Parliament intended that there should be reasonable certainty in the approach to be adopted, having regard to the body which could be called on under section 17 to apply it (the local planning authority).”
[50]After noting, at [85], that there could be no objection to reliance on information submitted in support of a CAAD application for another plot of land if that information reveals something relevant about the circumstances known to the market at the valuation date for the land in issue, the Supreme Court focused on the issues of alternative sites and cumulative impacts. At [87] it identified two situations in which those issues might arise:
“In principle, the local planning authority may be required to assess whether “in the circumstances known to the market” at the valuation date it could reasonably have been expected that other sites would be brought forward for development in a manner which might engage the alternative sites, cumulative impacts and incompatibility points in the same way as they could be engaged in relation to an application for planning permission for the land in issue in the real world. Clearly, to the extent that planning permission already existed at that date for development of other land, those points would potentially arise with reference to such planning permission: see section 14(2)(a) and para 70 above. There is no reason in principle why the same should not be true in relation to other land where planning permission had not yet been granted but, in the circumstances known to the market at the valuation date, it was reasonable to expect that an application for such permission would be brought forward within a reasonable time such as potentially to engage those points.In any event section 14(2)(b) provides that account may be taken of the prospect as at the valuation date of planning permission being granted for development on other land. Section 17(5) supports the view that the local planning authority is required to perform what is essentially the same assessment exercise for the grant of planning permission in relation to the land in issue as would have been required in the real world, including by specifying relevant conditions, but painting with a broad brush on the basis of the general information known to the market at the valuation date.”
[51]The Supreme Court therefore considered that both existing planning permissions, and applications which had not yet been made but which, in the circumstances known to the market at the valuation date, it was “reasonable to expect […] would be brought forward within a reasonable time”, could trigger consideration of alternative sites and cumulative impacts. That was both a consequence of taking account of matters known to the market on the valuation date, and separately (“in any event”) a consequence of section 14(2)(b) which expressly permits taking account of “the prospect of planning permission being granted on or after that date for development, whether on the relevant land or other land”.[52]Quintain had submitted to the Supreme Court that it would not be right to assume that any application for planning permission would be made by the owner of other land in the vicinity of the Appeal Site; nor would it be right to assess the notional application for planning permission in respect of the Appeal Site in the light of notional applications for planning permission which might be made in respect of other sites, by reference to the alternative sites, cumulative impacts or incompatible development points. But the Supreme Court rejected that submission, for reasons explained at [89]-[94]. Those points would be relevant “where on a reasonable assessment it can be seen that they would have had a significant part to play in a real world planning assessment” (at [89]). The Court described what it had in mind, at [91], as follows:
“In order to know whether the alternative sites, cumulative effects or incompatibility points could reasonably have been expected to affect the planning permission to be granted for the development of the land in issue it may be necessary for the local planning authority to make an assessment of what applications for development of other land in the vicinity would reasonably have been expected as at the valuation date to be made and granted (such an assessment is not required insofar as planning permission has already been granted in relation to the other land, since the precise nature of that permission is already known: section 14(2)(a) and para 70 above). The local planning authority has to make that assessment as best it can on the same broad brush basis as it has to apply under section 14(4)(b) in relation to other aspects of the facts in light of the circumstances known to the market.”
[53]That assessment is to be conducted purely by reference to objective circumstances known to the market, which will have the effect of excluding consideration of private motives. Those objective circumstances will include “an appreciation that a landowner holding land for development may be expected to seek to maximise the value of its investment by bringing that land forward for development”, especially where the land has been cleared for development and has no productive use unless it is developed ([90]). Other relevant objective circumstances may be gleaned from CAAD applications, as the Court explained at [92]:
“92. The question arises whether the fact that a CAAD application has been made in respect of such other land can potentially be taken into account as suggesting that, in the cancelled scheme world, it could reasonably be expected that the owner of that other land would have made a planning application for the same development as specified in the CAAD application or any other development. We consider that CAAD applications in respect of other land, along with the material submitted in support of them, may have some relevance in showing how the market would expect landowners holding land ripe for development to seek to develop their land. Such landowners would be expected to act to maximise their returns by focusing development proposals for their land on the most profitable forms of development likely to be appropriate for the area in question. Similarly, landowners who make CAAD applications are likely for ordinary reasons of self-interest to press for a CAAD for patterns of development which would reflect the highest contribution to the value of their land. Accordingly, if the CAAD applications in relation to plots of land in the same general area revealed a pattern in terms of the development sought to be reflected in the CAADs, that could provide some evidence to show how market actors would have been likely to respond to known market circumstances at the valuation date for the land in issue in the cancelled scheme world. It might furnish a practical illustration of the way in which the market would expect owners of land suitable for development to be likely to have sought maximum profit from their land and hence provide some evidence bearing on the question of what planning applications could reasonably have been expected to be made, assessed at the valuation date, by owners of development land other than the land in issue. Such evidence might supplement general expert economic evidence directed to the same point. It might also supplement information about such matters derived from general experience of the pattern of planning applications in the past in the real world in respect of the area.”
[54]The relevance of CAAD applications is therefore twofold: they may provide evidence about known market circumstances at the valuation date; and they may “furnish a practical illustration”, or provide “analogies”, ([93]), of the way the market, possessed of that knowledge, would have expected sites to be developed. But the relevance and utility of those illustrations and analogies is a matter of assessment:
“[93] … The extent to which information in a CAAD application or information from planning applications in the real world provide material capable of providing analogies relevant to an assessment of such matters for the purposes of the construction of the counterfactual world in section 14(4)(b) will depend on how closely the circumstances in each case are comparable. This would be a matter for the assessment of the local planning authority (or the Upper Tribunal, as the case may be), subject to the usual constraints imposed by general public law.”
[55]A number of points emerge clearly from these passages about the exercise required by section 14(4) of determining, on the basis of the cancellation assumption but otherwise in the circumstances known to the market, what planning permission could reasonably have been expected to have been granted at or after the valuation date for development on the Appeal Site. First, there is no room for speculation about events which might have occurred in the notional period between the cancellation date and the valuation date. Secondly, it is permissible to take into account applications for planning permission which it was reasonable to expect at the valuation date would be brought forward within a reasonable time. Thirdly, any such expectation that applications for planning permission may come forward must be based solely on circumstances known to the market. Fourthly, CAAD applications may provide analogies or illustrations ofhow the market would have been likely to respond to known circumstances at the valuation date. And finally, having constructed the circumstances in which the assessment falls to be made, the assessment itself is to be made applying ordinary planning principles. Cumulative effects[56]Before us the main issue of principle between the parties concerned the correct approach to the assessment of cumulative impacts in light of the Supreme Court’s decision. The issue arose in the context of agreed facts concerning the planning history and status of sites 2, 3 and 4 and a broad consensus between the experts on market circumstances at the valuation date. As the rival approaches permeated the evidence on matters of planning judgment it is convenient to consider them at this stage, before looking in detail at those matters.[57]We were referred to additional authorities, and although, as Mr Williams KC pointed out, none of them was concerned with a CAAD application, it was not disputed that they established relevant principles.[58]In R (Littlewood) v Bassetlaw District Council [2009] Env. L.R. 407 a planning permission granted for phase 1 of what was hoped would be a wider regeneration project was challenged on the grounds that there had been no consideration of the cumulative effect of phase 1 together with the future proposals for the wider area. That challenge was rejected, and it was found that the planning authority had been entitled to treat the application as a stand-alone development because there was no way of knowing what development was proposed or was reasonably foreseeable on the rest of the site, and no adequate information on which a cumulative assessment could be based.[59]Littlewood was distinguished in Pearce v Secretary of State for Business Energy and Industrial Strategy [2021] EWHC 326 (Admin) where a failure to assess the cumulative effects of two adjacent offshore windfarms which were closely related and would share on shore infrastructure was quashed. Unlike Littlewood, where the wider development was “inchoate” and no proposals had yet been formulated, in Pearce the proposals for the second project were known and the promoter of the first project had put forward information on the second to enable cumulative impacts to be evaluated.[60]Although Littlewood and Pearce both concerned the need for environmental impact assessments, which are the subject of specific statutory provisions requiring consideration of the cumulative effects of existing or approved projects, it was not suggested that the approach they illustrated was of limited application. It was common ground that the cumulative effects of development on the Appeal Site and adjoining sites were material considerations, at least because of the existence of a number of real-world planning permissions at the valuation date.[61]Mr Williams KC submitted that what was proposed on sites 2, 3 and 4, and the cumulative effects of the development proposals across all four sites, were material planning considerations for the purpose of determining Quintain’s application in respect of the Appeal Site. As a minimum, the development plan (to which we will come later) was said to require a coordinated approach to the development of sites and the delivery of its objectives for Eastside which made it necessary to have regard to development which would be expected to come forward on adjacent sites. More controversially, Mr Williams KC submitted that the decision of the Supreme Court supported reliance on the CAAD applications on sites 2, 3 and 4 as an indication of the development proposals which could reasonably have been expected to come forward and which a reasonable planning authority would have taken into account when determining an application for development on the Appeal Site.[62]On behalf of Quintain, Mr Elvin KC disputed these propositions. He maintained that the only planning permissions or applications which could properly be taken into account were those which existed or had been made and were known to the market at the valuation date. CAAD applications were not applications for planning permission and certificates were not permissions and neither were relevant planning considerations. In any event, the CAAD application for all four sites had been made after the valuation date and could not have been known to the market at the relevant time.[63]The Supreme Court has indicated how the cumulative effects of the schemes of development on sites 2, 3 and 4 described in CAAD applications for those sites may be legally relevant to the determination of Quintain’s CAAD application for the Appeal Site. There is no question of taking into account the fact that the applications themselves were made; they had not been made at the valuation date and even if they had, they would not have been material planning considerations. But that does not mean the schemes of development described in the CAAD applications must be ignored. They have been prepared by large professional teams with all the expertise which the owners of large development sites would be expected to assemble and with the same motivation to maximise the value of the sites as would have motivated the site owners in the assumed cancellation world at the valuation date. They can therefore be taken to reflect the sort of schemes which the market at the valuation date would have expected to be brought forward by their experienced owners, and which the Council, as planning authority, would reasonably have expected would soon be the subject of applications for planning permission. They each propose substantial mixed-use developments including tall buildings and a significant provision of PBSA. Had an objective observer in the market been asked to describe the sort of development they expected to emerge, they would have been likely to describe, in general terms, development on a similar scale and for similar uses to those described in the CAAD applications. Had they been asked at the valuation date when they expected it to emerge, they would have been likely to have said that it was imminent. No applications for planning permission for the other sites had yet been made but to any objective observer the four sites would have appeared equally ready to be developed with substantial proposals long overdue. Making the cancellation assumption, there was no known obstacle to early development in a market which, as the experts agreed, was in very good health and featured significant demand for residential, office, retail and PBSA uses.[64]Both parties appear to us to have adopted extreme positions on the use which can be made of the CAAD applications. We accept the proposition advanced on behalf of the Secretary of State that in July 2018 the decision maker determining an application for development on the Appeal Site would have anticipated that each of sites 2, 3 and 4 would be the subject of large-scale, mixed-use development applications in the near future. But we do not accept that the planning authority, or the market, would have had knowledge of, or could have anticipated, the specific form of development which would be proposed. The exercise undertaken by Mr King, the Secretary of State’s expert in urban design, of reviewing the development proposals in all four CAAD applications as if they had been comprised in a single application (and performing the same exercise for all of the Secretary of State’s alternative proposals) assumed knowledge of the size, location and function of every building proposed on each site. That information would not have been known to the market and could not have been anticipated by the market, or by the planning authority. It goes far beyond the general expectation of large-scale development which would have been anticipated, and which can therefore legitimately be assumed as part of the objective context in which an application for planning permission for the Appeal Site would be determined. It follows that a detailed cumulative assessment of the impact of all four schemes on townscape, the skyline, or views from key locations, as undertaken by Mr King, is not a relevant exercise. Any such assessment (which we agree is important) should have regard to the schemes for which consent already existed at the valuation date.[65]We therefore accept Quintain’s criticism of the level of detail on which parts of the Secretary of State’s case depends, which would not have been known to, or anticipated by, the market at the valuation date. But we reject Quintain’s submission that, when the Supreme Court described the role of CAAD applications as indicators or illustrations of how the market would expect adjoining sites to be developed, it had in mind only CAAD applications made before the valuation date. That submission is not reflected in the Supreme Court’s judgment which did not impose a blanket exclusion of applications made after the valuation date (as each of the applications before it had been). Instead, the Supreme Court left it to the decision maker to consider “how closely the circumstances in each case are comparable” when determining how useful a CAAD application may be in providing an analogy or illustration of how the market might have been expected to respond in the circumstances existing at the valuation date. The whole of the Court’s discussion of the use which can be made of CAAD applications would have been redundant and the declaration it made would surely have been different if it considered that none of the applications which were the subject of the appeal were capable of being of any relevance in the determination of the others.[66]It is not suggested by the Secretary of State that the fact that applications were made is relevant in itself, nor does she rely on information contained in the applications about matters which occurred after the valuation date (if they contain any). She legitimately relies on the applications as providing evidence, admittedly compiled some months after the valuation date, of what sort of development the market, and the planning authority, would have anticipated being brought forward on the adjoining sites to supplement or replace historically consented schemes which had not progressed. There is no reason in principle why relevant inferences cannot be drawn from post-valuation date applications about the expectations of the market at the valuation date concerning what permissions for development were likely to be sought in future, and nothing in the Supreme Court’s decision precludes such inferences.[67]When considering “how closely the circumstances in each case are comparable” (see [54] above) one relevant consideration is obviously that the CAAD applications were made some time after the valuation date for the Appeal Site. That makes it necessary to scrutinise the applications to exclude from consideration any information which they may contain about events which occurred after the valuation date, and to be on guard against the possibility that the proposals and judgments they contain may have been influenced by such events. Importantly, of course, the proposals described in the CAAD applications were consciously designed to take account only of circumstances known to the market at the valuation date. Nor is the relevant lapse of time so great, as the CAAD applications for the adjoining sites were all made within six to ten months after the valuation date. Quintain has not suggested there is anything specific in the applications for the other sites which should be excluded; its case has been simply that the applications are inadmissible or irrelevant because they were made after the valuation date. We reject that case, and we will assume when making our determination that, in the cancellation world, the market would have expected each of the sites to be the subject of applications for development on the scale and for the sort of uses illustrated by the respective CAAD applications. The decision maker would have anticipated a strong prospect that whatever development was consented on the Appeal Site would be followed by broadly comparable development on sites 2, 3 and 4. But the market would not have known or anticipated the detailed design and form of the development proposed in the applications, and the decision maker would not have had material sufficient to enable any assessment of the cumulative effects of the anticipated schemes in terms of height, massing, scale or connectivity. Alternative sites[68]There was much less dispute about the materiality of alternative sites which could meet the same need as the development proposed for the Appeal Site. The issue arose only because it was an important part of the Secretary of State’s case that harm which it is suggested would be caused to heritage assets by Quintain’s proposal could be avoided by implementing the Secretary of State’s proposal, which is said to secure the same benefits.[69]The Supreme Court referred in its decision to London Historic Parks and Gardens Trust v Minister of State for Housing [2022] EWHC 829 (Admin), at [130], in which Thornton J described as “well established” the following principle:
“Where there are clear planning objections to development then it may well be relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. This is particularly so when the development is bound to have significant adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it […].”
[70]We were also referred to Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1986) 53 P&CR 293, at 299-300, and to Mount Cook Land Ltd v Westminster City Council [2003] EWCA Civ 1346; [2004] JPL 470, at [30]. The relevant legal principles were not contentious. In the absence of a conflict with planning policy or other planning harm, the relative advantages of alternative uses on the application site or of the same use on alternative sites are normally irrelevant. Even in exceptional circumstances where alternative proposals might be relevant, inchoate or vague schemes or those that are unlikely or have no real possibility of coming about would not be relevant or should be given little or no weight.[71]Mr Elvin KC placed reliance on the general principle that alternative sites or alternative forms of development are normally irrelevant. Mr Williams KC focussed on the exception that alternative uses of the application site may be material where a proposed development conflicts with planning policy or gives rise to planning harm. But it is clear from R (Langley Park School for Girls) v Bromley LBC [2020] 1 P&CR 10, at [52], that whether, in an exceptional case, there is any need to consider avoiding or reducing harm by adopting an alternative scheme, depends on the extent of the harm that would be caused by the application. There is no legal principle that permission must be refused if a different scheme could achieve similar benefits while causing fewer harmful effects (First Secretary of State v Sainsbury’s Supermarkets Ltd [2008] JPL 973, at [38]). But the existence of an alternative can be relevant in the balance finally struck between harm and benefit (East Quayside 12 LLP v Newcastle City Council [2023] EWCA Civ 359, at [39]).

Planning policy

[72]There was disagreement between the parties about the meaning of a number of policies in the development plan, but the proper approach to the interpretation of planning policy was not in dispute. We were referred to Tesco Stores Ltd v Dundee [2012] UKSC 13, at [18]-[19], for the proposition that planning policies should be interpreted objectively, in accordance with the language used, read in its proper context. They should not be interpreted with the precision appropriate to statutes or contracts, because they are full of broad statements of policy, many of which may be mutually irreconcilable. In such cases planning judgment is required to determine which should give way to the other.[73]We were also referred to R (Tesco Stores Ltd) v Stockport MBC [2025] EWCA Civ 610, at [35]-[37], where Sir Keith Lindblom SPT warned against taking too sophisticated an approach: “36. Interpreting a planning policy ought not to be a difficult task, but straightforward […]. It should not generally involve the kind of linguistic precision the court would bring to the interpretation of a statute or contract. Construing the language in the policy should not require it to be dismantled and reconstructed, or a gloss imposed upon it, or resort to paraphrase. One can expect the purpose of the policy to be clear from its own provisions, given their ordinary meaning and read in their context. Policies should be stated in plain terms, easy to understand for those affected by decisions made in accordance with them, and capable of being applied with realism and common sense. Mostly they are.[37]The court should respect the policy-maker's choice of words in formulating the policy as it stands. As a general rule, the temptation to infer terms the policy-maker has not actually used should be resisted.The court will sometimes be able to conclude that the words of the policy mean exactly what they say, nothing more and nothing less. It should not hesitate to do this if it can.” The Birmingham Development Plan[74]Because Quintain’s CAAD application is, in effect, to be determined as if it were an application for planning permission we are required to have regard to the provisions of the statutory development plan, so far as they are material to the application, and to determine the application in accordance with the plan unless material considerations indicate otherwise.[75]The relevant national policy on design and land use principles supplied by the National Planning Policy Framework is not in dispute. At City level, the relevant plan comprises the Birmingham Development Plan 2017 (“the BDP” or simply “the Plan”), adopted eighteen months before the valuation date in January 2017, and certain saved policies in the 2005 Birmingham Unitary Development Plan. The Plan is said (at 5.21) to reflect the principles and proposals of an earlier document, the Big City Plan, which dated from 2011 and to which reference was made in the evidence. It also builds on the establishment in 2011 of a City Centre enterprise zone.[76]The BDP was prepared after the cancellation date and took account of the proposed development of HS2, with the Appeal Site being included in a safeguarding zone. Applying the cancellation assumption, policies which anticipate the HS2 scheme are either to be disregarded or read as they were intended to be in the event that the scheme did not progress.[77]Section 3 of the Plan sets out the objectives and strategy for the City to develop over the period to 2031. Amongst the objectives identified is the development of sustainable neighbourhoods with locally distinctive character and making provision for a significant increase in the City’s population. These sustainable neighbourhoods would feature “a wide choice of housing sizes, types and tenures” to meet community needs. The strategies identified to meet the City’s “growth agenda” included ensuring that the development of new homes is matched by the provision of opportunities for new employment, accessible local services and a high-quality environment. The focus will be on meeting as much as possible of the City’s need for new housing within the urban area, including by utilising industrial land and open space that no longer performs its original function; “brownfield and other available sites within the existing built-up area … [will] be the priority”. The role of the City Centre is to be strengthened by the provision of five “wider areas of change”, one of which is Eastside.[78]These high-level statements of intent are followed by individual policies and supporting text. Policy PG1 (“PG” being a reference to “planning for growth”) sets out the overall levels of growth which the City is planning for in housing, employment, office and retail development. These include providing 51,100 additional homes in the plan period (leaving a shortfall of 37,900 below the City’s assessed housing need which the City hopes will be met by neighbouring councils).[79]The key policies to which specific reference was made in evidence, and which the Secretary of State maintains are infringed by Quintain’s proposals, are policies PG3, GA1 and TP27. We have previously considered Policy TP33 when determining the need for PBSA.[80]Policy PG3, titled “place making”, sets the scene for how development should be brought forward by stipulating that all new development will be expected to demonstrate high level design quality. Amongst desired characteristics of new development the policy mentions design which responds to the local area context, including heritage assets; attractive external spaces, streets and public spaces; supporting the creation of sustainable neighbourhoods; and making efficient use of land.[81]Policy GA1 (“GA” referring to “growth area”) is concerned with the city centre, identified as one of the key areas contributing to the growth anticipated in Policy PG1. The city centre is subdivided by policy into seven distinct but currently underutilised “Quarters”, one of which is Eastside, described in Policy GA1.3 as an area for learning and technology, whose role is to be maximised, and its extensive development opportunities realised. A large portion of Eastside, including the Appeal Site and sites 2, 3 and 4, is also designated as one of five “wider areas of change” within the city centre. Now freed from the constraints of the inner ring road, these areas are seen as forming logical extensions of the City Centre Core and as making a significant contribution to its overall growth. The plan identifying the wider areas of change picks out the Appeal Site and additionally designates it as an Enterprise Zone Site, with the adjoining sites 2, 3 and 4 forming part of a larger Curzon Park Enterprise Zone Site.[82]Policy GA1 is divided into four parts. GA1.1 describes the role and function of the city centre. Our attention was drawn to a number of specific statements:
“The City Council will continue to promote the City Centre as the focus for retail, office, residential and leisure activity within the context of the wider aspiration to provide a high quality environment and visitor experience. New development should make a positive contribution to improving the vitality of the City Centre and should aim to improve the overall mix of uses. […] Residential development will continue to be supported in the City Centre where it provides well-designed high quality living environments. Developments will need to provide flexible and adaptable accommodation meeting a range of needs including for families.”
[83]The eastward expansion of the City Centre Core into Eastside is highlighted in Policy GA1.2, which identifies the five wider areas of change which are to be the focus of the proposed growth, including the provision of 12,800 new homes in the City Centre as well as additional retail and office floorspace. The ongoing regeneration of Eastside “will require well designed mixed use developments including office, technology, residential, learning and leisure.” Enhanced connectivity between Eastside and surrounding areas including Digbeth and the City Centre Core is identified as a requirement of any proposals for an HS2 station, but the station itself is not assumed. The desired enhancement of connectivity is not conditional on the new station but is separately emphasised in Policy GA1.4 where measures to improve accessibility to and within the City Centre are specified, including enhanced high quality pedestrian and cycle routes, public open spaces and squares, and the integration of public transport.[84]The general approach taken by Policy GA1.3 to the distinctive character of the Quarters is that these are to be supported and strengthened by new development “raising their overall quality, offer and accessibility”. The rationale for this approach is explained in supporting text which highlights the significant potential of a number of areas, including Eastside, to “accommodate a range of uses and densities of development expanding the Core and diversifying the overall offer”. The development and growth of the Quarters would be the subject of additional planning guidance in neighbourhood plans “where necessary” (none had been brought forward for Eastside by the valuation date or subsequently). The significant growth of the City Centre’s resident population will continue to be supported with new residential schemes.[85]After the policies dealing with growth and place making, the BDP is organised into separate chapters comprising thematic (TP) policies, one of which is Chapter 8 dealing with homes and neighbourhoods. The theme of Policy TP27 is “sustainable neighbourhoods” and it is introduced with the statement that “the concept of sustainable neighbourhoods” is “at the heart of the City’s growth agenda”. This concept is to ensure that future housing within and outside the growth areas is delivered in the most sustainable way, contributing to creating a strong sense of place, high standards of design and environmental sustainability and climate proofing and supported by high quality infrastructure and facilities. The focus of Policy TP27 is therefore on housing, but that is not a reason to marginalise it since Quintain’s proposal seeks maximum flexibility in the use of space and any part of the proposed development (with the exception of two blocks specified as offices) could be residential. The policy itself states that all new residential development will need to demonstrate that it is meeting the requirements of creating sustainable neighbourhoods, the characteristics of which are then specified in a list covering choice of housing to ensure balanced communities, access to facilities within easy reach, travel options, and a strong sense of place with high design quality so that people identify with, and feel pride in, their neighbourhood.[86]As for the location of new housing, Policy TP28 emphasises infrastructure and accessibility as important considerations. The supporting text (at 8.9) explains that while the City’s Strategic Housing Land Availability Assessment (the “SHLAA”) which identified suitable sites to meet the City’s assessed housing need) was intended to be as comprehensive as possible, it was inevitable that other opportunities for housing development would arise. It was expected that a minimum of 80% of new homes to be provided over the Plan period would be located on previously developed land.[87]Policy TP33 remains relevant, although we have already concluded in answer to the preliminary issue concerning off-campus student accommodation that there was a demonstrated need for the provision of PBSA at the valuation date. It was acknowledged that the Appeal Site is very well located to serve at least two of the City’s Universities. Other material considerations identified in Policy TP33 include that the proposed development will not have an unacceptable impact on the local neighbourhood and residential amenity, and that the scale, massing and architecture of the development is appropriate to the location. Other policy documents referred to in evidence[88]The Council’s March 2003 Supplementary Planning Guidance on “High Places” was also referred to in evidence and relied on by Mr Adams, the Secretary of State’s planning expert, notwithstanding that it was published 15 years before the valuation date and 14 years before the BDP. Mr Townsend considered it to be of only limited relevance because, as he put it, ‘the context had moved on’, and, as Mr Elvin submitted, it did not deal with non-design benefits such as optimising the potential of sites to accommodate new development. We recognise the validity of those points, but we note that in their report to the Planning Committee on Quintain’s application the Council’s own officers regarded High Places as describing the policy approach towards tall buildings, including appropriate locations and when exceptions should be made.[89]High Places defines a tall building in the city centre as one higher than 15 storeys. It recognises high quality landmarks as appropriate in special circumstances. The useful functions which well-positioned and well-designed tall buildings are said to fulfil include marking important facilities, acting as landmarks or, in a closely linked cluster, signalling the centre of the City or acting as a key gateway. A distinctively designed tall building or group of buildings could even endow the City with a unique skyline, easily recognisable in an international context and helping to attract international companies.[90]High Places adopted a restrictive approach, specifying that tall buildings would only be appropriate in the locations identified on three policy maps. The first of these maps (Map 2) delineates the central ridge on which the City Core sits and to which tall buildings are generally to be limited. The Appeal Site is situated just outside this zone. Map 3 then pinpoints appropriate locations within the same central ridge zone (or in one case just outside it) where it is said tall buildings can act as key arrival points and key view terminators around the city centre. Map 4 shows the approximate position of another six suitable locations, where tall buildings may aid the legibility of the City’s form such as by marking gateways to the City Centre at major public transport interchanges. One of the approximate locations shown on Map 4 is now the site of the Clayton Hotel, immediately north of the Appeal Site. Although Mr Adams relied on the restrictions imposed by High Places in support of the suggestion that any proposal for tall buildings on the Appeal Site would be required to demonstrate exceptional circumstances, we are satisfied that Map 4 can be interpreted as sanctioning at least part of it as an appropriate location. That was not seriously disputed, and the real debate about tall buildings concerned height and number, not the principle that the Appeal Site was a suitable location.[91]Mr Williams KC placed some reliance on the Big City Plan published in July 2011, while acknowledging that it does not form part of the statutory development plan and predated the BDP by six years. It includes a masterplan for the transformational development of Eastside around and beyond the new HS2 station with predominant uses continuing to be office, leisure and learning lead, but with residential uses making an important contribution to making Eastside a “liveable and vibrant quarter”. The Big City Plan envisaged the expansion of the city core uses into Eastside as an opportunity for a range of buildings “from 6 to 10 storeys rising to 16 storeys to mark key views.” The supporting text to Policy GA 1.3 of the BDP states that the principles and proposals of the Big City Plan are reflected in the BDP, which led Mr Elvin KC to suggest that anything of continuing relevance in the Big City Plan is likely to have found expression in the BDP policies. We agree with that up to a point and note also that officers did not refer to the Big City Plan in their report to the planning committee. The document is nonetheless interesting as the only masterplan for Eastside’s transformation and as an early reflection of the long term vision for this part of the City which the BDP is intended to deliver. Mr Adams thought that it deserved limited weight, and we agree.[92]The Big City Plan does illustrate one of the acute difficulties in this appeal. It assumes the presence of the new HS2 station so that, as Mr Townsend observed, it was unsurprising that the Appeal Site was not identified as a location suitable for tall buildings. The same expectation of HS2 casts its shadow over other key planning documents, such as the SHLAA, which ignored the Appeal Site and its neighbours safeguarded for the HS2 scheme. These strategic city centre sites have largely been bypassed in the formulation of policy since long before the HS2 launch date in 2013, yet the assumption underlying the appeal is that the same scheme was cancelled on that date. The principles governing the determination of the appeal also preclude speculation about how policy might have developed differently, or how proposals for neighbouring sites might have emerged, between the cancellation date and the valuation date. The result is that we are required to make planning judgments in a relatively featureless landscape, without information or policy guidance which would probably have become available by the valuation date had HS2 really been cancelled.[93]We will refer to other relevant policy documents as they arise in relation to specific issues.

The position on the ground at the valuation date

[94]Other substantial developments on land unaffected by HS2 were under construction in the area at the valuation date or had the benefit of planning permission and so would have been material considerations in any application for development on the Appeal Site. Some are identified on the following helpful plan prepared by Mr Townsend.[95]Completed development included the nine-storey Clayton Hotel, constructed in 2012 under the 2007 Permission immediately to the north of the Appeal Site on the junction of Masshouse Lane and Moor Street Queensway (No. 7). Opposite the hotel, Masshouse and the Hive (No. 6) were two apartment buildings of 15 and 16 storeys, also recently completed. To the south-west, separated from the Appeal Site by Moor Street Station, the Selfridges building (No. 4) had been completed and the former Pavilions Shopping Centre (No. 3) was being redeveloped as a new flagship store for Primark.[96]Other adjacent sites under construction at the valuation date included phase 1 of Exchange Square (No. 1) a residential and hotel development on 27, 16 and 9 storeys to the north of the Appeal Site (after the valuation date, consent was granted in January 2000 for a revised phase 2 of 8, 14 and 36 storeys), and The Emporium (No. 5), a 15 storey PBSA tower providing 185 bed spaces.[97]Finally, to the south of the Appeal Site on Digbeth, planning consent had been granted for Beorma (No.8), a mixed-use development of three blocks including a 30-storey tower. Martineau Galleries (No. 2) had been identified as a Major Development Site in the BDP and the Big City Plan, but planning consent for a mixed-use development had lapsed. In addition (not shown on the plan) planning permission was extant for 143,350 sqm of office and residential development in buildings of up to 19 storeys at Eastside Locks, and in the same area Unite had permission for a PBSA block of 15 storeys.

Quintain’s proposal

[98]The indicative form of the development for which Quintain seeks a Certificate is laid out in three blocks, with the retained Fox and Grapes public house adding a fourth. The plan below shows the arrangement we are asked to consider. Building heights (in storeys) and distances between the principal buildings are also indicated.[99]Moving from north to south across the Appeal Site the first of the buildings, designated Block A, comprises a 16-storey tower with a single storey entrance which might be used as a hotel. It is divided from Block B by Seymour Street.[100]Block B is the largest of the proposed blocks and occupies the centre of the site. It features a number of distinct structures sitting on top of a two storey podium block with retail space at ground level. The heights shown on the plan record the number of storeys above the podium.[101]The tallest component of Block B is a 30-Storey tower (or 32 including the podium) on the corner of Seymour Street and Moor Street Queensway; a further tower of 20 storeys is linked to the first by a “shoulder” building of 6 storeys above the podium, making 8 in all. The two towers are 21 metres apart. The whole “C” shaped structure formed by the towers and the linking shoulder is referred to as Block B1. Block B2, also “C” shaped, but in reverse, is on the eastern side of the Appeal Site, facing B1 on one side and creating a partially enclosed recreation space; on the other side B2 overlooks Eastside Park. It is part 6 storeys and part 10 storeys. Block B3, the final element of the central block, is a 12-storey tower on the corner of Moor Street Queensway and Freeman Street.[102]Block C comprises two separate office buildings of 8 and 9 storeys respectively (C1 and C2). It overlooks the railway line with Moor Street Station beyond. Block D is the two storey Fox and Grapes.[103]Blocks B and C are separated by Freeman Street which no longer follows its original course, running directly between Moor Street Queensway and Park Street, parallel to Seymour Street. Instead, the junction of Freeman Street with Moor Street Queensway has been moved south, towards Moor Street Station, and the new route takes a dog-leg to cross the Appeal Site at an angle.

The issues

[104]The main planning issues on which the parties disagree are the following:[105]Whether the scale, massing and form of Quintain’s CAAD proposal is in conflict with good urban design policies and principles reflected in the development plan, in relation to its impact on the local character, views, scale and massing.[106]Whether the realignment of Freeman Street is objectionable.[107]Whether Quintain’s CAAD proposal would cause harm to the significance of Moor Street Station or the Fox and Grapes Public House, both Grade II listed buildings.[108]Whether Quintain’s CAAD proposal has been considered in its proper context so as to avoid piecemeal and incremental development and would deliver an acceptable mix of uses.

The scope of the evidence

[109]At this stage we mention one feature of the expert evidence which we found unhelpful. As was always apparent from the parties’ statements of case, there is a significant difference between them concerning the approach which, as a matter of law, the Tribunal should take to the prospect of development on sites 2, 3 and 4, the parcels of land which are the subject of the CAAD appeals by the three neighbouring landowners. The expert witnesses called on behalf of Quintain were instructed by its legal advisers to assume for the purpose of their evidence that Quintain’s case on the law was correct and that of the Secretary of State was wrong. They were instructed not to express any view on issues in the appeal which required them to assume that the Secretary of State’s approach might be correct. The experts complied with that instruction. As a result, the evidence available to the Tribunal is limited as we do not have the benefit of the views of Quintain’s experts on some aspects of the appeal.

Urban design and heritage issues

[110]The relevant parts of the statutory development plan concerning design and heritage issues are policies PG3, GA1.1, and TP27 of the BDP, to which we have already referred, together with saved policy 3.14 of the 2005 Birmingham Unitary Development Plan.[111]Saved policy 3.14 is concerned with the design of new development and, at 3.14B, it requires a demonstration that development proposals have been considered as part of their context. A design statement identifying the principles adopted for the proposal is mandatory for all but the smallest schemes, and to avoid “problems of piecemeal and incremental development on very large development sites” there is an expectation that comprehensive master plans or development briefs will be prepared.[112]Under saved policy 3.14D, new development is to be assessed against a list of good urban design principles. Particular regard is to be had to the impact of proposed development on the local character of an area, including topography, street patterns, building lines, boundary treatments, views, skylines, open spaces and landscape, scale and massing, and neighbouring uses; the scale and design of new buildings and spaces should generally respect the area surrounding them and should reinforce and evolve positive local characteristics; people should be able to move freely, easily and safely throughout the City; and mixed uses will be encouraged in centres, and in other areas where they can contribute towards meeting an identified local need.[113]High quality design is an express requirement of the BDP (policies PG3, GA1.1, TP27 and saved policy 3.14), and proposals are required to respond to the local context (PG3, and 3.14). Scale and design should generally respect the surrounding area and contribute to a strong sense of place (3.14D, PG3, and TP27). New development should reinforce or create local distinctiveness, with design that responds to site conditions and the local context, including heritage assets (3.14). Scale and massing along Moor Street Queensway[114]Quintain’s proposal gave rise to disagreement between the design experts, Mr Townsend and Mr King, concerning the scale and massing of the proposed development along Moor Street Queensway. The specific issues to be considered are the height of the proposed tall buildings, whether a cluster of tall buildings is justified, and the visual impact of the indicative design.[115]The design experts agree that the northern part of the Appeal Site, whether north or south of Seymour Street, is in principle an appropriate location for a tall building, meaning one of at least 15 storeys. Quintain’s application includes a tower of 32 storeys (including the podium) to the south of Seymour Street, while the Secretary of State’s design incorporates one of 24 storeys on Block A. There was also agreement that the proposed scale of Blocks A, B2 and B3 was acceptable, having regard to the existing context including the neighbouring tall buildings to the north and the open space on the eastern side of Park Street.[116]The parties disagree about the number and permissible height of the towers proposed as part of Block B1 and more generally about the visual impact and impermeability of the Moor Street Queensway frontage of this block. For the Secretary of State, Mr King considered that the tall elements stepping up along Moor Street Queensway were unjustified and would conceal the sky and create a “wall-like barrier” which would have the effect of obstructing movement towards Eastside by acting as a physical and visual block. This would render the area less permeable for pedestrians, cyclists, and vehicles and impeded the development of a more interconnected, vibrant, and accessible urban environment, contrary to the place making ambitions of BDP Policy PG3. The cluster of three tall buildings proposed for Block B1 would, in his opinion, create an over-dominance in their surrounding context with the tallest being double the height of its Eastside neighbours at Masshouse and The Emporium. He contrasted this with the Secretary of State’s alternative proposal, which features a single tall building, which in Mr King’s view achieved the desired waymarking objective without appearing dominant or overbearing.[117]Mr King produced visualisations of a tall building on the corner of Moor Street Queensway and Seymour Street of 16, 18, 24 and 30 storeys as seen from the Aston Expressway, the Priory Queensway, and from Swans Passage. He accepted that he had not visualised a building of between 24 and 30 storeys, and was therefore unable to say that 24 storeys, as the Secretary of State proposed, was the maximum height that would be acceptable to a reasonable planning authority.[118]In Mr Townsend’s view, Mr King’s visualisations demonstrated that a 24 storey building would be of similar scale to others surrounding it and so would fail to perform a waymarking function; from the Aston Expressway, 24 storeys failed to stand out, and from Swans Passage it would largely be concealed. From the generously wide Priory Queensway, Mr Townsend considered that a 30-storey option would not be overbearing and would integrate positively into the surrounding context, creating a skyline with visual interest and distinction. From distant viewpoints, the development would be central to an emerging tall buildings cluster at the eastern edge of the city core, including Exchange Square, Masshouse, the Emporium, and Beorma Tower.[119]Mr Townsend considered Eastside to have unique locational characteristics, mediating the transition between the city quarters of Eastside, Digbeth, and the City Core. He accepted that at the valuation date, within Eastside itself, tall buildings were of 15 or 16 storeys, with no precedent for anything higher. The design and access statement supporting the CAAD application did not designate a wayfinding function to anything other than the single tall tower, but he provided two examples of ‘tower triplets’, one at Thames City in the Nine Elms area of London, the other at Infinity Waters in Liverpool which he said illustrated how clusters of buildings could successfully perform that function. He acknowledged that these examples were of buildings in areas specifically designated for tall buildings and were bespoke to their context; in neither example were the buildings linked by a ‘shoulder’ and in each case the buildings in the cluster were “grounded” in the sense that they rose from ground level rather than being positioned on a podium linking them to surrounding structures.[120]Mr Townsend suggested that each of the proposed towers would be grounded, as features of the detailed design would emphasise that the intermediate blocks were between the towers, rather than the towers sitting on top of one large block. The design was intended to be ‘read’ as a collection of buildings, increasing in height from Moor Street Station, creating a distinctive skyline making the edge of the city core legible, and marking a key transport interchange. In his view the three towers gave a rhythm to the façade and their ascending scale was designed to draw the eye, marking the Seymour Street junction’s importance as a key location. He countered Mr King’s objections by suggesting that, rather than being a ‘wall’ of development, the mass of Block B2 was broken up into a series of well-proportioned elements with sky visibility between them. The separation distances between the towers was substantial, and while acute views along the street may exclude visible sky between the buildings, that impression would be momentary, as gaps would open up as the viewer moved eastwards. He considered that the eight-storey shoulder block would be in keeping with the surrounding enclosure within Moor Street Queensway and would help to create a sense of enclosure rather than having gaps between each of the buildings.[121]Although we are considering the application afresh, we note that scale and massing were the subject of extensive discussions between Quintain and the Council’s planning officers. The officer’s report to the planning committee regarded the Moor Street frontage as the logical location for the tallest element of the proposed scheme, reflecting the importance of the street and its proximity to the City Centre core where the highest concentration of tall structures is found. The officer’s assessed the views of the tall buildings from relevant conservation areas and considered that the maximum scale of Block B would not cause substantial harm to designated heritage assets. Their overall conclusion was that the tall buildings would provide a positive addition to the city core as part of a corridor including the 27 and 30 storey towers at Exchange Square and Beorma. They were also seen as representative of the growth of the city core to the east, where intermediate tall buildings of 15 and 19 storeys were already complete or under development.[122]We agree that the Appeal Site is a gateway location, from both Eastside and Digbeth and its position is within a stone’s throw of one of the approximate locations identified as suitable for tall buildings in Map 4 of the High Places SPG. It is fitting that the junction of Seymour Street and Moor Street Queensway should be marked by a building of appropriate city scale. This principle is common ground and is reflected in the Secretary of State’s agreement that a building of 24 storeys would be justified. The real issue is not height alone, but the scale of the proposed development and whether the cumulative effect of the various elements of Block B1 would create an overbearing presence along Moor Street Queensway. The scale of the development on Block B is not a discrete issue but is linked to other contentious features of Quintain’s proposal. To create sufficient separation space between the various elements it has been necessary to adjust the historic street pattern to accommodate the Moor Street Queensway frontage of Block B1, with consequences for the setting of heritage assets and residential amenity.[123]Standing at 217.4 AOD, some 98 metres above ground level, the proposed 32 storey tower would be unprecedented in this location and, we consider, inconsistent with the general gradation of tall buildings along the City Centre ridge which, since the Big City Plan and the High Places SPG, have generally been assumed would increase in height moving east to west. Such a building would be distinctly taller than phase 1 of Exchange Square (27 storeys) which, because of its location closer to the City Centre core, we would expect to be the more prominent building (as it would be in the Secretary of State’s alternative scheme). Quintain’s building would be about double the height of its close neighbours, Masshouse, The Hive and The Emporium. We took careful note of Beorma (30 storeys) when we undertook our own inspection and concluded that, although it can be seen as part of a corridor of tall buildings entering the city centre, it is not as relevant a comparator. It is remote from the northern end of the Appeal Site which is agreed to be the logical position for the tallest structure and it is also in Digbeth, rather than Eastside, and performs a different waymarking function.[124]The 32-storey tower would therefore be out of keeping with its immediate context. It would also be novel in the context of what had been previously consented within Eastside. Consented buildings there were generally below the threshold for tall buildings and there were fewer significant points of arrival or destination where taller structures might have been anticipated. The notable exception, Eastside Locks (19 storeys), marks the eastern end of university area. The proximity of the Appeal Site to the city centre is a justification for a tall building in this location but the scale of that building or buildings should recognise that this is a transitional site where Eastside begins and different relationships should be respected.[125]More significant than the height of the tallest element proposed, and perhaps the most distinctive feature of Block B1, is its trio of towers. A case can be made for the lowest of these (which at 12 storeys is not really a tall building) because it performs a useful function in defining the corner of Freeman Street and Moor Street. But the central tower, at 22 storeys including its podium, has no such functional justification and is incongruously positioned halfway along a city block. It performs no waymarking function of its own, as Mr Townsend agreed, and the benefits which he considered it brought either duplicate or detract from those achieved by its taller neighbour. The approach to Eastside along Seymour Street and Freeman Street is announced by the towers at either end of Block B1 and the addition of a third risks introducing confusion and appears to us to erode legibility.[126]Having visited the Appeal Site and viewed it from the vantage points suggested to us by the parties we share Mr King’s concern about the visual impression Block B1 would create and its general impermeability. Its western façade would be 96 metres long. Although activated at ground level by retail space, ranging across the skyline would be a tower of 32 storeys connected by an 8-storey shoulder to its neighbour of 20 storeys, terminating with a further 12 storey building. The effect from ground level would be akin to a portion of a high city wall, shielding the City Centre from Eastside and concealing what lies beyond. That appears to us to be the consequence of the scale of the development and in particular the link between the two tallest elements. Mr Townsend explained that the design was intended to promote a sense of enclosure but in the absence of views or routes through the centre of Block B that sense of enclosure is in tension with the wider objective of expanding the City Centre into Eastside and improving connectivity.[127]For these reasons, and in respectful disagreement with the Officers’ report, we do not think that in design terms Quintain’s proposal would represent a positive addition to the city centre or that it can properly be described as a well-designed development. It does not generally respect the surrounding area, which is one of the good design principles recognised in save policy 3.14B and does not measure up well to the emphasis in BDP Policy PG3 on creating an interconnected, vibrant, and accessible urban environment. This is obviously a matter of judgment on which views may differ, but our own assessment is broadly consistent with Mr King’s on this key issue. Although in certain respects Mr King’s report offered Mr Elvin KC the opportunity to collect some easy points in cross examination, none of these caused us to doubt that he had a thorough understanding of the Appeal Site and its context. Mr Townsend takes a different view and is no less well qualified than Mr King. Having been commissioned by Quintain in 2018 to develop scheme designs for submission to the Council and having then been involved in extensive discussions with planning officers to secure their support, Mr Townsend was ideally placed to explain the design principles underlying the CAAD proposals. But his long involvement meant, in effect, that he was giving evidence in support of his own design, and we bear that in mind in considering where we think the balance of the assessment rests.[128]We have considered whether, by lowering the largest tower, or by lowering or removing the 8-storey component of the western frontage of Block B1, some of the issues we have identified could be overcome. But the evidence did not consider an intermediate position between 24 and 32 storeys and any modification of the scale of the frontage to improve permeability would involve a fundamental adjustment to the design and would introduce issues which the parties have not had an opportunity to consider. This is a much more complex scheme than in some other CAAD appeals where the Tribunal has felt able, on the evidence, to describe a form of development which lies between the positions of the two parties. It is not possible for us to adopt that approach here. The alignment of Freeman Street and suggested harm to the setting of the Fox and Grapes[129]Historically, the Appeal Site was divided into three urban blocks by Seymour Street and Freeman Street, each linking Moor Street to the west with Park Street to the east, as part of a grid of streets. From Freeman Street it was possible to cross Moor Street and continue directly to the City Centre along New Meeting Street. But Freeman Street was stopped up at its western end in the 1970s to facilitate the City fathers’ concrete collar, creating a cul-de-sac at a level 1.8m below Moor Street Queensway.[130]Until its demolition after the valuation date the Fox and Grapes public house, one of two listed buildings in the area, stood at the eastern end of Freeman Street, on the corner of Park Street. It is believed to have dated from the late 17th century, and its statutory Grade II listing was based on the building’s age and cultural significance rather than on any particular architectural merit. It was derelict at the valuation date, having suffered a series of arson attacks. None of the other buildings on Freeman Street or Park Street remained, so the pub stood alone on the corner, the last remnant of a former landscape which existed before the area became a surface level car park. Both parties’ CAAD schemes envisage the pub being refurbished and brought back into use as part of the redevelopment of the Appeal Site and significant weight is given to its revival in the overall planning balance.[131]Unlike the extant 2008 Permission Quintain’s proposals would divert Freeman Street from its historic alignment, perpendicular to Moor Street Queensway and Park Street, and would create a dog-legged ‘New Freeman Street’ running diagonally across the Appeal Site. Mr Townsend explained that this would help to integrate the Appeal Site with the existing street network and promote movement towards Eastside. In his view, it offered a number of urban design benefits over the historic alignment of Freeman Street. The new route aligns with a nodal point on Moor Street Queensway opposite Carrs Lane, the principal pedestrian route to the High Street retail area and beyond to Colmore Row and the central business district. It intersects with routes to Moor Street Station and New Street Station to the south and Jennens Road to the north. Mr Townsend therefore considered that the proposed route followed a clear and legible pedestrian desire line from the retail core through to City Park and Eastside beyond. He suggested that it offered an uninterrupted view towards the green space of City Park and so provided a welcoming arrival to Eastside.[132]Mr King objected to the proposed layout on the grounds that it disrupted the historic grain of the site by enlarging the central block and breaking the connection between the street pattern that had existed since the 18th century and the corner position of the listed pub. In these respects it was inconsistent with the emphasis in saved policy 3.14B on responding to local context and paying particular regard to impacts on street patterns, building lines and heritage assets.[133]Mr Williams KC suggested that the proposed scheme and the Secretary of State’s alternative were not significantly different for pedestrians. At the eastern end, both schemes have a pedestrian route adjoining the pub. At the western end, both schemes have to resolve the level change (as did the 2007 permission) by emerging within about 10m of each other. He therefore suggested that Quintain’s design was disrespectful of local character and street patterns for little benefit.[134]Historically Freeman Street had not linked Moor Street with Eastside since the arrival of the railway which caused it to terminate at the railway cutting leading to Moor Street Station. On our site visit, the significant change in level between New Meeting Street and Queensway was also apparent, and Carrs Lane now provides the more convenient route to the City Centre. We therefore accept Mr Townsend’s point that the historic street pattern is no longer well connected to the wider street network, having been interrupted by the railway at one end and by the raising of Moor Street Queensway at the other and we see force in his views on pedestrian routes. We also think that the respect due to a historic street pattern must be tempered when that pattern had already been almost obliterated, and the topography permanently altered. The change in levels also creates a practical difficulty for any design based on the retention of the original route of Freeman Street. The level difference of some 6m would require a ramp steeper than 1 in 16 or some other treatment. The 2007 permission had steps at the western end, which was unsatisfactory for disabled pedestrians and itself involved a departure from the historic position. By running diagonally across the Appeal Site Quintain’s proposal extends the distance over which the difference in levels is resolved and is more accessible. Although it sacrifices the remnants of the historic grid it is a satisfactory response to the difficulties created by the level changes introduced in the 1970s.[135]Each scheme creates an area of open space around the refurbished Fox and Grapes pub, the main difference being that Quintain’s design produces a triangular plot as New Freeman Street splits into two branches on either side of the pub whereas the Secretary of State’s alternative hints at the building’s original corner position by placing it in a rectangular open space. Mr King criticised the layout of Quintain’s scheme as creating pinch points, resulting in awkward junctions. We are not persuaded that is a valid criticism as the distance between the pub and the surrounding buildings is at least adequate and not far short of the 12.3m in the Secretary of State’s version. The Council’s officers were content with the arrangement; they described the space between Blocks B and C as “generous” and thought that the 19-20m dogleg opening out around the Fox and Grapes provided an improved setting for the listed building.[136]One adverse consequence of the realignment of Freeman Street is the contribution it makes to blocking views towards Eastside from Moor Street Queensway, thereby contributing to the adverse impact on connectivity and accessibility created by the massing of Block B. The 2008 Permission retained the historic street alignment while adding a new diagonal route across the site, forming a new public square on Moor Street and opening up the approach to Eastside. This approach has been abandoned in favour of maximising the scale of development. The proposed opening of Freeman Street onto Moor Street has been relocated in order to lengthen the façade of Block B1 and provide space for the three towers which sit on top of it. The new opening necessitates the introduction of the dogleg in place of the historic straight route to accommodate Block C, and although the new route is wide the change of direction restricts views from Moor Street towards Park Street and contributes to the overall sense of enclosure and separation. This is only partially relieved as one moves along Freeman Street because the view terminates at the Fox and Grapes which is now central and spans much of the new route before it reaches Park Street. Therefore, while we do not place the same weight as Mr King on the loss of the historic street pattern and recognise the benefit which the proposed route of Freeman Street would yield, the change also contributes to the adverse consequences of the decision to maximise the scale of Block B which is the key design issue.[137]It is convenient to refer at this point to the evidence given by the experts on heritage, Mr Coleman and Mrs Jones, about the impact of Quintain’s proposal on the setting of the Fox and Grapes. There was much common ground between them, including that development of the Appeal Site will in principle produce heritage benefits, by regenerating the local townscape and enhancing the setting of the pub, and by optimising the use of the listed building by returning it to its intended function as a pub.[138]The historic alignment of Freeman Street is agreed to reflect an underlying wider street pattern in the area in which pubs on street corners were a common feature. It is also agreed that the relevant consideration is any harmful impact which the proposed development may have on the setting of the listed building and on the appreciation of its significance. The “setting” in this context means the surroundings in which a listed building or other heritage asset is experienced. The setting of a listed building is not in itself a heritage asset, and changes in setting are not necessarily harmful.[139]In this context we were reminded that under paragraphs 133 and 134 of the National Planning Policy Framework, harm to heritage assets is categorised as either “substantial”, or “less than substantial”, with the extent of heritage harm within the “less than substantial” category varying on a sliding scale. A four-step process of assessing harm is recommended in Historic England’s 2017 guidance document “the Setting of Heritage Assets”. These steps involve identifying the asset and its setting, assessing the degree to which the setting contributes to the significance of the asset, and assessing the effect of the proposed developments, whether beneficial or harmful, on that significance or the ability to appreciate it; and, finally, considering ways to maximise enhancement or minimise harm.[140]Mrs Jones considered that Quintain’s proposals were contrary to Policy 3.14D. The alignment of Freeman Street should respect the historic street pattern and the pub’s position on the corner, which she regarded as an important feature which should not be lost and which contributed to the understanding and appreciation of the building. She categorised the harm to the listed building as a result of changes to its setting caused by the proposed development as less than substantial harm, at the higher end of the scale.[141]Mr Coleman disagreed. The continued presence of the pub and its orientation to Park Street maintained the original Freeman Street/Park Street corner as a historical fact and sufficiently indicated the original street pattern to enable the significance of the building to be appreciated. Respect for the previous alignment only has a value to the extent that it preserves or enhances the setting of the pub and that would only be achieved if the development embraced the pub’s street wall (by which we understood Mr Coleman to mean that the setting would be improved by restoring the original continuous terrace along the street, which was not part of either proposal). In his view, Quintain’s proposal would not cause harm or impair appreciation of the significance of the pub, which lies in its position, history, and what remained of its fabric at the valuation date, and not in its setting. There was nothing to choose between the two suggested developments since each would leave the building detached from any neighbour and capable of being appreciated in isolation.[142]In our judgment, the demolition of the buildings around the pub changed its setting entirely and left only the faintest suggestion of its original corner position. The pub has lost its original context and any contribution which its setting might have made to an appreciation of its qualities has been rendered meaningless. Apart from the rerouting of Freeman Street the development itself would not harm the setting; Block B features a two-storey podium fronting Freeman Street which would lie behind the listed building when seen from Park Street and the scale of the proposed development along Freeman Street is relatively respectful. The aesthetic, evidential and historic value of the building has, as Mr Coleman suggests, been diminished by the fire damage. Any harm to the pub or its setting which Quintain’s proposal might cause would be negligible and at the lower end of less than substantial harm. In the absence of any proposals to rebuild Freeman Street and reattach the building to its neighbours, an indication of its position could be recreated and its setting enhanced by detailed landscaping proposals. We are also mindful of Mr Adams’ very fair acknowledgement that the benefits of restoring the fabric of the pub, providing public realm to form a new setting, and securing its future economic use, achieve the optimum viable use for the listed building and outweigh the less than substantial harm to its significance.[143]We were invited by Mr Williams KC to consider whether the Secretary of State’s alternative proposal would avoid or diminish the harm caused to the setting of the listed building. Having regard to R (Langley Park School for Girls) v Bromley LBC and the other authorities previously mentioned the general principle is that alternative sites or alternative forms of development on the subject site are normally irrelevant, although exceptionally that may change if the degree of harm merits a different approach. Given the different view we take from Mrs Jones about the extent of any harm, we do not think there is any reason to make an exception to the general rule. The net effect of Quintain’s proposals on the Fox and Grapes would be positive. In any event, because Freeman Street is wider under the Secretary of State’s proposal than it would formerly have been it also changes the relationship of the listed building to its historic surroundings. We are not persuaded that the alternative proposal is less harmful than Quintain’s scheme.[144]In summary, therefore, when the street layout proposed by Quintain is divorced from wider considerations around the scale of Block B1, we do not consider it represents an additional obstacle to the approval of its scheme as appropriate alternative development. Any very minor effect of the setting of the Fox and Grapes is significantly outweighed by the planning benefits of bringing the pub back into repair and use. Block C and harm to Moor Street Station[145]As can be seen from the site plan, Quintain proposes two office buildings at the southern end of the Appeal Site, Blocks C1 and C2, of eight and nine storeys respectively. The parties disagree on the harm which the proposal would cause to the setting of the historic portion of Moor Street Station, which was Grade II listed in 1998.[146]The Moor Street Station building lies immediately to the south of the Appeal Site and is the terminus for services from London Marylebone. Built in 1911 in what Mr Coleman described as a ‘restrained baroque style’ it has an attractive brick and stone front elevation with six rather elegant, curved gables which can currently be appreciated against the skyline. Mr Coleman described the station as modest in size and expression, and somewhat overwhelmed by the adjoining Selfridges and Primark buildings, neither of which are at all sympathetic. At the valuation date, the Primark building was being converted from the former Pavilions shopping centre and was shrouded behind scaffolding.[147]It is common ground that neither Quintain’s scheme nor the Secretary of State’s alternative proposals would have a harmful effect on the station itself; as with the Fox and Grapes, the disagreement concerns the impact of the proposals on the setting of the listed building.[148]Mr Coleman considered that Quintain’s proposals would cause no harm to the significance of the listed station. The station is discrete; much of its significance is only appreciated from within the building and what occurs beyond it is relatively unimportant. Until the 1960s the station building immediately adjoined a much taller warehouse building and it would have been designed with that expectation.[149]In Mrs Jones’s judgment, the station building has a degree of prominence in the streetscape; while its profile is relatively low, the gabled front elevation helps to mark the station’s presence as a destination. In her view the proposed changes to the station’s setting would cause less than substantial harm, at the middle of the scale.[150]Mr Townsend pointed out that the proposed new office blocks would be only two storeys taller than the Primark and Selfridges buildings opposite, which already form the dense urban setting for the station. The façade of Block C1 would be 50 metres from the historic portion of the station’s frontage (further away than Selfridges), avoiding an overpowering impact on the listed building. Mr King disagreed. He thought the proposed massing, particularly along the southern edge facing the station, clearly read as more imposing and less responsive to the site’s heritage and immediate context than the Secretary of State’s scheme which envisages a single building with portions of 5, 7 and 9 storeys.[151]The CAAD proposals must also be considered in the context of the extant consent under the 2008 reserved matters approval. In general, Quintain’s current scheme is a little more modest than the development which could still be implemented on Block C. Block C1, facing the station, is proposed to be 2.7m lower than the consented scheme, with a facing façade some 2.3m shorter. The extant consent envisages a single building with an unbroken elevation of 94m facing the station along Paternoster Row (which originally ran between Park Street and Moor Street but would now simply provide access to the rear of Block C). Quintain’s current proposal splits Block C into two elements with 60m and 25m façades. The other significant difference between the consented and proposed schemes, and the only respect in which the consented development may have been less intrusive, is that on the consented design the upper levels of the building were stepped back, away from the station.[152]The 2006 officer’s report leading to the grant of the extant permission provides little assistance. The station is simply noted as an adjoining use, rather than as a heritage asset, and it was not referred to in consultation responses by either English Heritage or the Council’s own Conservation and Heritage Panel. It might be legitimate to assume that neither consultee considered that the development then proposed would have an adverse effect on the station. The 2008 section 73 permission provided an opportunity for second thoughts by officers, but again the station was simply referred to as a neighbour and described as “refurbished” rather than listed. Mrs Jones pointed out that the extant permission pre-dated the concept of harm to the significance of designated heritage assets, which she said had been introduction in the 2012 NPPF. But the station was listed by that point and, as Mrs Jones accepted, planning authorities were already under an obligation imposed by section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 to assess the impact of development on listed buildings and to preserve them.[153]A third opportunity for the station to attract attention was provided by the Conservation Area and Character Appraisal for the adjoining Digbeth conservation area, adopted as an SPD in March 2009. This discussed the station but placed no weight on its townscape character. The authors reserved their appreciation for the Selfridges building and seemed to value the station as a counterpoint, rather than for its own merits:
“the architectural character and traditional scale of the station buildings provide a vivid contrast to the shopping mall development beyond the conservation area boundary to the south and west”
. That suggests that the author of the appraisal did not regard the setting of the station as contributing much to its significance.[154]When they reported to the Council on Quintain’s CAAD application, officers explained that had the application been for planning permission heritage bodies would have been consulted but pointed out that there is no legislative basis for equivalent consultation under the CAAD regime. They were therefore alive to the listed status of the station. They advised that Block C was broadly consistent with the previous consent and would not have any additional impact on heritage assets in the vicinity. They considered that the proposals would have a “satisfactory relationship with the surrounding buildings and railway infrastructure.”[155]On this issue we take the same view as the Council’s officers and Quintain’s experts. The proposed design is not stepped back, as the extant development was, but from our site visit we noted in particular the significant separation between the listed portion of the station and Block C, which would be 20m greater than the distance between the station and Selfridges. Although the front of the station is attractive, the relative prominence of its gables is a result of the clearance of neighbouring development and their current appearance against the skyline cannot be regarded as making a significant contribution to the station’s heritage significance. The officers’ assessment is consistent with the absence of expressions of concern on previous occasions, which we think is unlikely to have been due either to a failure by officers and consultees to appreciate that the station was listed or to their assessment having been undertaken under the different framework which prevailed at that time. On the evidence as a whole, we consider that no harm will be caused to the setting of the station by Quintain’s proposals. It is therefore unnecessary to consider whether the Secretary of State’s alternative proposals would cause less harm. Other design and amenity issues[156]A number of more specific objections were raised by Mr King, the Secretary of State’s design expert, regarding the standard of amenity which Quintain’s proposals would deliver, especially for residential occupiers. He suggested, in particular, that the quality of the private open space provided for the amenity of residential occupiers and the provision of daylight to north-facing apartments were not acceptable. These issues arose from the design of Block’s B and C, with enclosed areas said to be overshadowed by the surrounding structures, and tall buildings oriented approximately east-west so that their longer façades face north.[157]The requirement under the NPPF for development to provide a good standard of amenity is supplemented by Policy PG3, which requires private external spaces to be attractive and functional and Policy TP27 requiring attractive amenity space, and the promotion of high-quality public space which encourages its use. PG3 makes no specific reference to daylight or shadowing. TP27 deals with sustainable neighbourhoods, in which context the development would be adjacent to a new public park. There is no policy requirement for public open space to be provided for PBSA, hotel or office uses.[158]Mr King also considered that both the enclosed central space on top of the two-storey podium intended as private open space and the area along Freeman Street and around the Fox and Grapes which is designated public open space were likely to be overshadowed by the height of the surrounding buildings, in direct contrast to policy PG3. He produced an illustrative view at podium level, looking north into the central private area from a position between two of the higher elements of Block B. This persuasively made the case that most of the central area would be overshadowed at times, a proposition with which Mr Townsend did not disagree, but we did not find it a particularly objective exercise. In particular, it did not balance the image with a view of the remainder of the open space behind the viewer, which would have been free of overshadowing at the same time. It is clear that there would be overshadowing of some of the private open space and that at certain times the area affected would be relatively large, but there was no evidence of how much daylight different spaces would receive throughout the year to enable a balanced judgment to be reached at this stage. The officers’ report took the view that the taller elements of the scheme could achieve satisfactory separation to provide privacy, outlook and light penetration and we can see no reason to reach a more pessimistic conclusion, particularly as considerations would be given at the detailed design stage to the desirability of residential blocks having balconies. We also bear in mind, as did officers, that significant public amenity space would be available close by in Park Street Gardens and Eastside Park.[159]The other matter about which Mr King expressed concern was the proportion of residential units within Quintain’s proposed development which were oriented with northern and southern aspects; he suggested the long north-facing façades would cause a lack of daylight and an uncomfortable indoor environment. This concern was not supported by any technical analysis.[160]In response, Mr Townsend pointed out that at the valuation date there was no policy requirement for any quantified level of daylight to reach habitable rooms and therefore no policy basis for Mr King’s criticism. Additionally, the availability of daylight to habitable areas does not depend on direct sunlight alone; the ‘vertical sky component’, meaning the amount of sky visible to someone standing at a window, is one of the primary methods of assessing light levels within residential spaces. By that measure, Mr Townsend suggested, 75% of the flats in the development would receive sufficient light to achieve a high-quality living environment. The proposed blocks were not truly north facing but were 13o off a strictly east-west axis so that north-facing elevations would receive some morning sunlight, particularly in summer months.[161]In the absence of any technical analysis measuring the access of daylight to the proposed development, we are strongly inclined to follow the example of the Council’s officers, who were content with the indicative internal layouts they were shown and who expressed no concern on the basis of residential amenity. Measures to ensure satisfactory levels of daylight, for instance by the placement of living rooms, lift cores, stairwells etc, can be considered at the detailed design stage. We are not persuaded that the current proposals are non-compliant or that planning permission ought to be refused for reasons relating to residential amenity.

Mixed use of the Appeal Site

[162]Apart from their disagreement over the scale of permissible development, the parties’ most fundamental difference concerns the approach to be taken to the mix of uses on the Appeal Site. The rival positions[163]To use a catering analogy, Quintain would like a buffet from which it may help itself to as much or as little of each of the available dishes, while the Secretary of State would have the Tribunal provide a set menu, with an emphasis on portion control and balance.[164]The contrast between the parties’ respective positions is clear from their statements of case. Quintain proposes development of up to 99,490 sqm and limits on each of the relevant uses to a maximum (by gross internal area) of: Residential - 70,955 sqm (910 dwellings) Office - 29,670 sqm (with a minimum of 19,212 sqm) PBSA - 52,147 sqm (1,940 bedrooms) Hotel - 20,343 sqm (580 bedrooms) Retail, financial and professional, café or restaurant - 5,727 sqm The only minimum space requirement included in Quintain’s proposal is for offices, on the assumption that Blocks C1 and C2 will be entirely devoted to that use. Additionally, Mr Rouse and Mr Adams agreed that it would be appropriate to include a condition requiring retail or other class A1 to A5 uses at ground floor level in Blocks A and B.[165]The experts agreed that there were many ways in which the Appeal Site could be developed within the size constraints of their respective schemes. Quintain’s expert on townscape and heritage matters, Mr Coleman, modelled two illustrative scenarios in order to assess the compliance of the proposals against policy and to consider their impact on the listed buildings. The two scenarios produced buildings of slightly differing dimensions reflecting the optimum layouts for PBSA and conventional residential uses. Scenario 1 assumed PBSA use of the entirety of Blocks A and B above ground floor level, while scenario 2 assumed no PBSA and entirely residential use of the space not allocated to offices or retail. Hotel use could also be substituted in either scenario. Mr Coleman explained that other permutations were also possible within Quintain’s proposal.[166]The Secretary of State’s alternative proposal restricts the maximum total floorspace to 75,017 sqm. The maximum areas permitted for each use would be: Residential – 33,943 sqm (352 dwellings) Office – 19,227 sqm Retail (A1, A2, A3) – 3,750 sqm PBSA – 18,097 sqm (554 bedspaces (sqm GIA) If all or part of the 18,097 sqm permitted for PBSA was not so used, the condition would permit it to be added to the allowance for residential and offices; that addition would permit up to 52,040 sqm of residential and up to 37,324 sqm of office space.[167]A separate condition would provide that the development must comprise not less than 60,014 sqm, with minimum space requirements for each use based on 80% of the maximum allowance (assuming full utilisation of the PBSA allocation) as follows: Residential – not less than 27,154 sqm (282 dwellings) Office – not less than 15,382 sqm Retail (A1, A2, A3) – not less than 2,856 sqm No minimum space requirement is proposed by the Secretary of State for PBSA. Although there is no reference to hotel use, nor to Class A4 or A5 (on-licensed premises and hot food takeaway), the Secretary of State does not object to those uses. Assuming the minimum space requirements for other uses was satisfied, there would be ample potential in the Secretary of State’s development for a hotel, if one was desired.[168]If the Appeal Site were to be developed to the maximum extent permitted under the Secretary of State’s scheme, the minimum floor area requirements would equate to approximately 36% residential, 20% offices, and 4% retail. Up to 40% of the Site would remain undeveloped, allowing the whole of the PBSA allowance of 18,097 sqm (representing 24% of the maximum) to be accommodated and giving the developer some flexibility to respond to market circumstances.[169]Both schemes assumed the presence of the Fox and Grapes and with a consensus emerging over office and retail uses, the real disagreement between the parties was whether there should be any requirement for general residential use, or whether the whole of the area not assigned to offices or shops could be used for student housing at Quintain’s sole discretion. Legal issue or planning judgment?[170]In his closing submissions on behalf of the Secretary of State, Mr Williams KC framed this disagreement as a point of principle about the proper approach to the assessment and definition of schemes of development within the CAAD regime. He suggested that when section 14(3)(a) of the 1961 Act states that compensation should be assessed on the assumption that planning permission is in force at the relevant valuation date for any development that is appropriate alternative development, it contemplates a scheme of development which could be the subject of a grant of planning permission in the real world. At the valuation date section 17(3)(b)(i), LCA required a CAAD to “specify … each description of development” for which planning permission could reasonably have been expected to be granted. Mr Williams submitted that the development proposed in a CAAD application, and any development specified by the Tribunal in a Certificate must therefore be a development capable of obtaining planning permission. It must clear enough to enable all material considerations to be identified, and a proper assessment made of its consistency with the development plan. And it must be capable of forming the basis of a valuation. Quintain’s menu could accommodate a scheme which was 71% residential, or one with more than 50% PBSA with little or no residential. That, Mr Williams submitted, was not a real-world approach.[171]Mr Williams also suggested that the Council had fallen into error in granting its purported CAAD by assuming incorrectly that every permissible form of development should be lumped together in a single certificate. It also assumed, wrongly in the light of the decision of the Supreme Court, that there was no requirement or basis for considering the cumulative effects of the proposed development and development which might be expected to come forward on sites 2, 3 and 4 of which the CAAD applications for those sites provided an indication.[172]We think Mr Williams KC made a little too much of the suggested difference in principle between the parties’ respective approaches. That difference does not give rise to any real question of interpretation of sections 14 or 17 of the 1961 Act. Section 14(3) requires the applicant to specify “each description of development” which it considers to be appropriate alternative development, and it is therefore obvious that an applicant may describe more than one form or combination of forms of development. There is no question of the development ever being implemented and the CAAD is relevant only as far as it contributes to the assessment of compensation. There is nothing illegitimate in an applicant hedging their bets, as the Supreme Court recognised, at [5]:
“In practice, a landowner will often apply for a CAAD which identifies every description of development for which planning permission could reasonably have been expected to be granted if the land had not been compulsorily acquired. The landowner can then rely on whichever happens to be the most valuable form of hypothetical development covered by the CAAD for the purposes of seeking compensation for the land in issue.”
[173]It is for the decision maker, the planning authority or the Tribunal on appeal, to give a general indication of the conditions to which planning permission for the suggested development could reasonably have been expected to be subject (section 17(5)(b)). If the development described in the application is insufficiently specific, the decision maker may decide that planning permission could not reasonably have been expected to be granted for it. Alternatively, they may consider that an imprecise or general description of development would only obtain permission subject to conditions giving it a clearer form. If a number of different forms of development are specified, some conditions may apply to some forms but not to others. In some cases the Certificate may resemble a series of distinct planning permissions, each subject to its own conditions, but presented in a single document. None of this creates any real difficulty so long as it is remembered that the critical consideration is whether planning permission could reasonably have been expected to be granted for the development described. If it could, then the certificate should indicate in general terms the conditions which would reasonably be expected to apply to a permission granted for that form of development.[174]In determining these questions our two points of reference, which we consider with the assistance of the planning experts, are the development plan and permissions granted in the real world for similar developments to those proposed. We will address these in reverse order. How novel is Quintain’s approach?[175]Both planning experts considered it relevant to refer to how previous permissions dealt with the balance of uses for the Appeal Site and neighbouring sites. Mr Rouse, Quintain’s planning expert, summarised the common features of the outline permissions granted before the valuation date for the Appeal Site, Curzon Park, Exchange Square, and Eastside Locks. All were large sites which were expected to be brought forward in a series of phased developments. In each case the permissions included a list of approved uses with flexibility at the reserved matters stage to combine uses up to a stated maximum for each use and within a total maximum floorspace. Each controlled the balance of uses through a masterplan by requiring development to be in substantial accordance with the general disposition of buildings and uses shown on parameter plans. None of the permissions required development to be brought forward in accordance with a particular phasing schedule or required phasing to be agreed as a reserved matter.[176]In his written evidence Mr Rouse described the outline planning permissions for the Appeal Site granted in 2007 and as amended under section 73 in April 2008 as “inherently flexible”. He drew attention to the fact that they contained no requirement for a minimum amount of floorspace in any use other than retail. Each phase of reserved matters was able to draw from a menu of uses up to the limit of floorspace within each use and floorspace overall. The distribution of uses across the site and the layout and height of buildings was flexible. These statements were not untrue, but they presented a distinctly one-sided picture of the effect of the permissions. In view of the clear division between the parties on this point, it was surprising that Mr Rouse did not think it relevant to refer to the content of the parameter plans which controlled the mix of uses. Had he done so he would have noted that they were quite unlike the plan relied on by Quintain. On the 2007 plan retail use was permitted at ground level in each of six separate blocks, but otherwise only one of the six could be used for more than one use (Block 4 could be either residential or a hotel). The only permitted non-retail use of the largest block was residential (up to 35,820 sqm). Even after additional flexibility was introduced into the 2008 permission, if the development was fully built out to include the maximum permitted hotel, office, and retail allowance, the completed scheme would necessarily include a minimum of 47,400 sqm of residential space (representing 84% of the maximum permitted residential allowance of 56,600 sqm). We do not think Mr Rouse failed to appreciate the effect of the previous permissions and we must therefore conclude that he chose to portray them in a partial light. This undermined our confidence in his objectivity and the weight we give to his evidence as a whole.[177]Similarly, the permissions granted for the Curzon Park site (site 3) in January 2005 and June 2008, and for Martineau Galleries in December 2008 included either a parameters plan controlling the mix of uses or a condition specifying minimum and maximum floorspace allocations to different uses (or both). Site 3, if fully built out in accordance with the 2008 permission would have comprised between 55% and 65% office space and between 28% and 40% residential, with the option, but no requirement, to include a hotel. We were not shown the parameters plan for Eastside Locks (December 2008) but we infer from Mr Rouse’s description and from submissions that it also assigned specific uses to particular buildings. On that assumption, the net effect in all cases was a requirement that each development deliver substantial amounts of office and residential floorspace. In each case the reason given for the relevant condition was “to define the permission”.[178]As Mr Elvin KC pointed out, these historic permissions were all granted ten years or more before the valuation date, and pre-date the 2017 development plan; that did not deter Mr Rouse from relying on them, as did Mr Adams. It is also the case, as Mr Elvin observed, that Martineau Galleries is not in Eastside, but across the road in the City Centre, although the relevant policy difference between the two Quarters was not identified. More significantly, we are not aware of any permission having been granted for a large mixed use development site before or since the valuation date which adopted the approach advocated by Quintain. We note, however, that in their assessment of the CAAD application the Council’s officers described the flexibility proposed as “legitimate and typical under the regular planning regime when considering large multi-phase developments”. Had that statement been correct to the extent necessary to provide support for Quintain’s approach, we would have expected to be shown examples of permissions for large mixed schemes containing no condition or other requirement for a minimum space allocation for residential use. We were shown no such permissions. We do not doubt that with any large, phased development flexibility will be required in order to respond to changing market circumstances over an extended delivery period, but on the evidence we have seen we do not see how a permission which is effectively undefined as between major alternative uses can be described as “legitimate and typical under the regular planning regime”.[179]There is no indication in the officers’ report that they gave critical consideration to whether a scheme which included no housing provision would be acceptable. The possibility that “spatially” student accommodation could occupy all of Blocks A and B was mentioned when considering whether the principle of student housing had been satisfactorily demonstrated against the requirements of Policy TP33. The officers’ reference to the proposed flexibility being “legitimate and typical” came in a section describing the proposal and the issue was not revisited when consideration was given to relevant policies. At that later stage emphasis was placed on the potential to deliver housing, with officers noting that the maximum number of houses proposed in Quintain’s application was 21% greater than the previous 2008 consent on the Site and drawing attention to the City’s assessed need for 89,000 homes and its ability to provide only 51,100 in its own administrative area. Policy encouraged a mixture of uses in the area and the provision of up to 910 dwellings over 70,955 sqm “would not be disproportionate to the size of the Site and would be in keeping with other major city centre schemes”. As far as affordable housing was concerned, officers made the assumption that a full provision of 35% would be required.[180]Whatever view officers may have formed about the acceptability of a scheme delivering none of the 910 dwellings referred to in the application, and all of the 1,940 student bed spaces, we must decide for ourselves whether it would be compliant with relevant policies and would be likely to have obtained planning permission at the valuation date. Is Quintain’s approach in accordance with the development plan?[181]It is common ground between Mr Rouse and Mr Adams that the development plan is not prescriptive of a particular balance of uses at the Appeal Site, but they differ on whether a mix of uses is required to meet Policies PG3, GA1 and TP27.[182]At a strategic level, the development plan puts the promotion of sustainable neighbourhoods at the heart of a growth agenda, planning to provide as much of the City’s housing requirement as possible within its own administrative boundaries and prioritising the reuse of previously developed land. The growth agenda is explained in section 4 of the Plan and includes the provision by 2031 of 51,100 additional homes within the Plan area, leaving a shortfall of 37,900 to be provided by neighbouring authorities. Policy PG3 provides that all new development will be expected to contribute to a strong sense of place, including by supporting the creation of sustainable neighbourhoods (the subject of Policy TP27). TP27 in its turn requires that all new residential development must meet the requirements of creating sustainable neighbourhoods in specific respects, including providing a wide choice of housing sizes, types and tenures to ensure balanced communities.[183]The contribution to the growth agenda expected of the City Centre, the Quarters, and the wider areas of change (including Eastside) is considered in detail in Policy GA1. New development, including residential development, which will continue to be supported in the City Centre, should make a positive contribution to improving the vitality of the City Centre “and should aim to improve the overall mix of uses” (GA1.1). The wider areas of change are to be the focus of the proposed growth of the City Centre to accommodate 12,800 new homes, 700,000 sqm of office space and 160,000 sqm of retail space. One of those areas is Eastside, where the City Centre core will expand eastwards through the provision of “well-designed mixed-use developments including office, technology, residential, learning and leisure” (GA1.2). The role of Eastside as an area for learning and technology is to be maximised and its extensive development opportunities realised (GA1.3).[184]Mr Adams considered that these policies would require such a large area as the Appeal Site to deliver a mix of uses, including residential, and that an over concentration of a single use such as PBSA would be inconsistent with the expectation of the development plan as a whole. Mr Rouse disputed that interpretation and considered there was nothing in the development plan or the specific policies to which Mr Adams referred which would justify a requirement for a particular mix of uses. The experts focussed to some extent on semantics, debating, for example, whether a mix of uses in the City Centre would be “improved” by a development dominated by a single use, or whether it would be sufficient if Eastside as a whole featured a mix of uses, even if individual developments did not. We did not find these debates particularly illuminating and we think the better approach is to consider the development plan as a whole.[185]We are satisfied that, read as a whole, the development plan places considerable emphasis on the importance of mixed-use development and of “diversifying the overall offer”, as it was put in the text accompanying Policy GA1.3. It is not prescriptive of any particular mix and does not define what it means by mixed-use, but the thrust of the relevant policies leans away from uniformity or the dominance of a particular use to the exclusion of others and towards variety. The application of policy will depend on the context and the nature of the site. There is no requirement for every development to include a mix of uses, irrespective of its scale, and no necessity for every development to include every one of the uses identified as appropriate for Eastside. But, in our judgment and in the context of this appeal, the domination of a significant part of a large area by a single use would not be consistent with the requirement of mixed-use development; it would not diversify the overall offer and would not contribute to sustainable neighbourhoods.[186]We appreciate that Quintain’s proposal would incorporate a mix of uses, because public facing areas on the ground floor would be used as retail space and Block C would be dedicated to offices. Even if the whole of Blocks A and B were given over to PBSA, the Appeal Site as a whole would be a mixed-use development. PBSA would be a particularly appropriate use for a site in Eastside, because of its distinctive character as an area of learning and its proximity to the two universities. So the real question is not whether a large proportion of PBSA should be permitted, as clearly it should, but whether there should be a positive requirement for a residential component.[187]It is significant in this context that the Appeal Site is one of four vacant and largely levelled sites which, taken together, comprised a significant tract of undeveloped land on the City Centre fringe. As previously discussed, the expectation of the market at the valuation date would have been that they would all come forward in short order for substantial development. A reasonable planning authority would see those circumstances as an opportunity and as a challenge. It would be concerned to ensure that the eventual shape of the CAAD areas (meaning all four sites) contributed to the vision of Eastside as an eastward extension of the City Centre having a distinctive character as an area for learning and technology, and able to make a significant contribution to the growth agenda in all its relevant aspects.[188]The decision maker would also be conscious of the need for consistency in its decision making as between the adjoining sites which it would reasonably expect to deal with in the immediate future. If it determined one application for planning permission on the basis that the developer would be free to choose the most profitable form of development, with no minimum requirement for less profitable uses which had previously been consented on the same site, it would find it difficult to treat a neighbouring site, of comparable size and potential, any differently. The Supreme Court identified the principle of consistency in public law decision making as a relevant factor for the decision maker to bear in mind (at [68]) when dealing with any single application for one of the adjoining sites. The principle is of particular relevance here since, as we have already decided, there was a sufficient demand for PBSA in the City Centre to accommodate at least as much development for that purpose as all four sites could hold. If more than half of the Appeal Site was permitted to be developed for student housing, and none of it for residential use, as Quintain’s proposal would allow, it would be a relevant consideration that a similar balance of uses would have to be permitted on sites 2, 3 and 4. In that context a reasonable decision maker would consider whether development of the area stretching from Moor Street Queensway to Eastside Lock would meet the requirements of Policies GA 1, PG3 and TP27 if the predominant use was for PBSA. In our judgment, it would not, because it would not deliver a vibrant and sustainable neighbourhood or a balanced community, but would tend towards a monoculture, dominated by a single type of user. Nor do we consider such dominance would be consistent with Policy TP33 which favours PBSA where it will not have an unacceptable impact on the local neighbourhood and residential amenity.[189]In reaching this conclusion we do not assume knowledge of the particular proposals of the other CAAD applicants, as these were unknown to the market at the valuation date. But the condition of the adjoining sites and the expectation that they would come forward imminently for development intended to maximise their value are nevertheless material considerations. They are material to the flexibility appropriate to any permission for the Appeal Site, and therefore to the conditions which would reasonably be expected to be included in such a permission. Was there a need for residential development at the valuation date?[190]As an additional strand of his argument, Mr Elvin KC submitted that there was no pressing need for residential development at the valuation date, and that there would therefore be no need to prioritise residential use over other uses of the Appeal Site, specifically PBSA. The development plan required 51,100 new homes to be delivered during the plan period, and the evidence at the valuation date was that the Council was on track to meet that requirement. Annual targets had been met or slightly exceeded in each of the two preceding years and the housing land supply was a healthy 6.79 years.[191]On the other hand, as Mr Elvin KC acknowledged, the target of 51,100 was a target rather than a maximum. The target figure also included a “windfall allowance” of 7,600 dwellings, meaning new houses which were expected to be provided somewhere in the city but for which no identified site had yet been found. Additionally, Policy PG1 recognised that a shortfall of 37,900 new homes would need to be met through cooperation with other local authorities to find capacity outside its own administrative area. The premise on which that policy was expressly based was that “it is not possible to deliver all of the additional houses within the city boundary.”[192]We cannot rewrite the development plan or revisit the assumptions which it contains; they are part of the real world context which we are required to assume. But so too is the fact that the Appeal Site, and the adjoining CAAD sites, had not been taken into account in determining the Council’s ability to meet its own needs without relying on others. We are not entitled to assume that their absence from consideration was for any reason other than that the sites were safeguarded for HS2. Once that obstacle is assumed no longer to exist there is no justification for continuing to treat the sites as off limits. The Appeal Site had previously been granted permission for up to 538 apartments in the 2008 revision. In all of these circumstances we have no doubt that both the shortfall of 37,900 homes and the need to find space for 7,600 homes on windfall sites which had not yet been identified, would be material considerations when determining an application for substantial development on the Appeal Site.[193]We bear in mind that the needs of student households contribute to the overall assessment of housing need, and that the provision of PBSA on the Appeal Site would therefore be a contribution to the target of 51,100 new homes. There was disagreement between Mr Adams and Mr Rouse as to whether greater weight should nevertheless be given to the delivery of general market and affordable housing than to PBSA. In Mr Adams’ view the most pressing need was for affordable housing, to which the provision of PBSA made no relevant contribution; nor did PBSA contribute to the choice of type or size of tenure which was an objective of policy. Mr Rouse disagreed and considered that PBSA should be treated as being of equal value and as a recognised contributor to housing supply.[194]It seems to us that the development plan can fairly be said to favour the provision of general needs housing of different sizes, styles and tenures. That does not mean that a decision maker would refuse a proposal to provide PBSA or would insist on a general residential use for every site (especially in Eastside). But where permission is sought for a very large site including both residential and PBSA uses, Policy TP27 is engaged, and the proposal will need to demonstrate how it contributes to creating a sustainable residential neighbourhood. Such a neighbourhood is characterised by variety and balance and caters for all incomes and ages. In the assumed circumstances at the valuation date, and especially with large neighbouring sites ready for development being at least as suitable for PBSA, it would not be an answer to say that the desired variety and balance should be insisted on elsewhere in the neighbourhood. A dominance of PBSA on one site, to the complete or substantial exclusion of general residential provision, would risk its dominance of the newly emerging neighbourhood as a whole, and that would be inconsistent with the development plan.

Conclusion on Quintain’s proposal

[195]For the reasons we have given concerning design considerations, the height and massing of development on Moor Street Queensway, and the impermeability of the site, we conclude that the scheme proposed by Quintain is not likely to have obtained planning permission at the valuation date.[196]Had we been persuaded that Quintain’s scheme was acceptable in design terms, we would nevertheless have concluded that it would not have obtained permission without the inclusion of conditions requiring the delivery of a minimum level of residential development such as are proposed by the Secretary of State.[197]We have not concluded that the Secretary of State’s scheme, which is agreed to represent appropriate alternative development, represents the limit of permissible development of the Appeal Site. It may not do, but the evidence does not enable us to consider any of the other forms which it is agreed development might take.

Conditions and planning obligations

[198]There were few disagreements over the conditions and planning obligations appropriate either to Quintain’s proposal or to the Secretary of State’s. With the exception of the minimum floorspace condition these were not debated in the evidence, and we were not provided with a consolidated draft showing what was agreed and in dispute.[199]From the Schedules to the experts’ statement of issues we understand there to be an issue about the need for three bedroom accommodation as part of the Secretary of State’s scheme. Given the city centre location, we do not think that such a requirement is appropriate (a position which may have been agreed after the schedule was prepared).[200]The appropriate maximum floor space and parameters plan conditions are as proposed by Mr Adams.[201]We have explained why we consider a minimum floorspace requirement is necessary to define the development and to secure policy objectives. Mr Elvin KC criticised the minimum requirements proposed by Mr Adams and suggested that they lacked any policy justification. The justification offered by Mr Adams in the experts’ agreed statement of issues was that a requirement to deliver at least 80% of the maximum floorspace proposed for each use was necessary to ensure that the site is developed at a density appropriate to its city centre location and to make good use of previously developed land as required by, amongst other policies, GA1, PG1 and PG3. Why 80% was correct, or whether a different figure would be equally satisfactory, was not explored in evidence. In particular, Mr Rouse expressed no view on a minimum requirement in the event that we considered one was necessary, as we do. In any event, we are happy to accept Mr Adams’ judgment on that issue.[202]The planning experts did not agree on the need for prior approval of a phasing plan. The conditions proposed by Quintain assumed that the Appeal Site would be developed in phases and Mr Rouse again expressed no view on the phasing condition proposed by Mr Adams other than that it was not necessary. We consider that securing a comprehensive mixed use development and the avoidance of unacceptable impacts on the local neighbourhood and residential amenity do require that a condition be imposed preventing the completion of all the permitted PBSA before the commencement of other development. As Mr Rouse has expressed no view on the form such a condition should take, we adopt the form proposed by Mr Adams.[203]We have invited the parties to provide a draft certificate which should describe the Secretary of State's scheme which the parties have agreed is AAD and should include, in outline, such conditions as have already been agreed between them or determined by the Tribunal. Martin Rodger KC Peter D McCrea OBE FRICS FCIArb Deputy Chamber President Right of appeal

Cited in 4 later judgments