The Secretary of State for Transport v Birmingham City University [2026] UKUT 10 (LC)

[2026] UKUT 10 (LC)

Case No LC-2019-290

IN THE UPPER TRIBUNAL (LANDS CHAMBER)

IN THE MATTER OF A NOTICE OF REFERENCE

Venue Royal Courts of Justice, Strand,

Between

THE SECRETARY OF STATE FOR TRANSPORTAppellant

BIRMINGHAM CITY UNIVERSITYRespondent

London WC2A 2LL

15 January 2026

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

COMPENSATION – PLANNING PERMISSION – Certificate of Appropriate Alternative Development – avoidance of harm to heritage assets – control of uses – appeal allowed and revised certificate issued

Land at New Canal Street, Eastside, Birmingham

Martin Rodger KC, Deputy Chamber President

and Mr Peter D McCrea OBE FRICS FCIArb

5-7, 10 and 14 November 2025

Guy Williams KC, Andrew Byass and Isabella Buono, instructed by DLA Piper UK LLP for appellant

Richard Glover KC and Isabella Tafur, instructed by Mills & Reeve LLP for respondent

The following cases are referred to in this decision:

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

Secretary of State for Transport v Quintain City Park Gate Birmingham Ltd & Ors[2025] UKUT 7 (LC), [2025] RVR 102

Introduction

[1]In Quintain City Park Gate Birmingham Ltd v Secretary of State for Transport

[2025] UKUT 312 (LC)

(“Quintain”) the Tribunal determined the first of four appeals against certificates of appropriate alternative development granted (or deemed to have been granted) by Birmingham City Council in its capacity as local planning authority for Birmingham. Each of the certificates was in respect of part of a large site at Eastside, adjacent to the City Centre, which had been assembled by the exercise of compulsory purchase powers by the Secretary of State for Transport for the construction of the Birmingham terminus of HS2.

[2]Birmingham City University (BCU) was the owner of a long leasehold interest in part of the land taken and was granted a certificate by the Council on 31 July 2019 (the BCC Certificate). Adopting the referencing used in Quintain, at [19], BCU’s site is site 2 and will be referred to in this decision as the Appeal Site or simply as the Site. Prior to its acquisition by the Secretary of State the freehold reversion on BCU’s long lease belonged to the Council.

[3]This appeal is against the BCC Certificate and is brought by the Secretary of State under section 18 of the Land Compensation Act 1961 (the LCA). The Secretary of State has designed a more modest scheme of development than that certified by the Council which she asks us to certify in its place. BCU has also designed new, larger schemes and proposes different conditions from those it presented to the Council, and it invites us to approve those modified schemes.

[4]Many of the facts, much of the evidence, and most of the witnesses are common to this appeal and to Quintain. In the interest of economy we will limit our consideration of matters already dealt with in Quintain which are also relevant to this appeal and hope to repeat ourselves only where necessary. Our previous decision should therefore be treated as a preface to this one.

[5]The Secretary of State is represented by Mr Williams KC, Mr Byass and Ms Buono, and relies on the evidence of the same expert witnesses as she did in Quintain. BCU’s counsel, Mr Glover KC and Ms Tafur, were not participants in the Quintain appeal, nor were its experts on heritage and townscape matters.

[6]The Appeal Site was the earliest of the four Eastside sites to be taken by the Secretary of State. It was acquired by a general vesting declaration on 16 March 2018 and that is both the valuation date for BCU’s compensation claim and the date on which the notional planning permission described in the certificate is taken to have been granted.

[7]The launch date, being the date of introduction to Parliament of the Bill which eventually became the High Speed Rail (London – West Midlands) Act 2017, is 25 November 2013. That date is the cancellation date for the purpose of the statutory assumption required to be made in the preliminary exercise of identifying what planning permissions must be taken to have been available. It is to be assumed that the scheme underlying the acquisition had been cancelled on that date and that no steps had been taken in furtherance of the scheme (see Quintain at [11] to [17] for a summary of the essential legislative framework).

The Appeal Site and its locality

[8]The Appeal Site is a large area of land occupying 1.7 hectares just outside the eastern boundary of the City Centre core and just to the west of the site of the former Curzon Street Station, which was the City’s original intercity station and later its main goods station until its closure in 1966. It has a more or less regular shape with shorter parallel boundaries on its eastern and western sides, and longer northern and southern boundaries widening towards the east. The northern boundary is defined by Eastside City Park and the western boundary by Park Street Gardens. These green spaces will be referred to collectively as the Park. The eastern boundary is along New Canal Street, running between Curzon Street to the north and Digbeth to the south. The southern boundary is formed by a railway viaduct carrying the main line between Birmingham and Derby. An exclusion zone on which development is not permitted extends 12 metres into the Site along the railway boundary.

[9]The viaduct is necessary because of the topography of the area with the ground rising as it approaches the City Centre. The Site itself generally slopes away from the City Centre, falling from approximately 109.4m above ordnance datum level (AOD) in the north-east and approximately 113.2m AOD in the south-west, to approximately 108m AOD at the south-east.

[10]At the valuation date the Site was divided into two parts by Fazeley Street running between the City Centre to the west and Digbeth to the southeast. Historically it had been further divided by Banbury Street, running east-west, parallel to Fazeley Street, and by Batholomew Street, running north-south, but these routes had largely been built over in the 1960s when the greater part of the site came to be occupied by a factory unit. By the valuation date the Site had been entirely cleared of buildings for some years, with the greater part vacant and only the western end in use for storage.

[11]The Site had originally been envisaged as the location for the City’s new central library, and then as a new university campus to enable BCU to relocate from Perry Bar to the City Centre. BCU obtained its long leasehold interest in 2011 after obtaining planning permission for a campus development of 55,000 sqm, but its plans were overtaken when all four CAAD sites were safeguarded for HS2.

[12]The Park is the largest in the City Centre and the first new park to be created in Birmingham in 125 years. It occupies an elongated space covering 3.2 hectares, wrapping round the Site on two sides and is intended to form a focal point for Eastside. It separates the Site from its neighbours: Site 1 to the west, the subject of the Quintain appeal; a cluster of new tall buildings to the northwest at Masshouse;Millennium Point, which houses a science museum, an exhibition and conference centre and other cultural and educational institutions, to the north; and BCU’s relocated campus to the northeast. The Park also forms the northern boundary of Site 3, immediately to the east of the Appeal Site. It terminates at the Curzon Building, part of the new BCU campus, beyond which on the opposite side of Curzon Street is Site 4.

[13]There are a number of heritage assets in the vicinity of the Appeal Site. Immediately adjacent to its north-eastern corner is the Woodman Public House, a grade II listed building on the corner of New Canal Street and Curzon Street. Opposite the Woodman, on New Canal Street, is the former “Principal Building” of the Birmingham terminus of the London-Birmingham Railway which opened to passengers in 1838. This monumental building in the Greek Revival style is grade I listed in recognition of its architectural distinction, its historic interest, and the degree of survival of its original fabric. Further south on New Canal Street at its junction with Banbury Street is the Eagle and Tun Public House which is locally listed. Finally, to the south and east of the Site, beyond the railway viaduct (but not including it), is the Warwick Bar conservation area covering approximately 16 hectares of industrial and commercial development of the 19th and the first half of the 20th centuries, including canal basins and infrastructure. New development on the Appeal Site will be visible from the conservation area.

[14]The Appeal Site was cleared and capable of development at the valuation date. A short distance to the north-west, residential and hotel development was under construction at Exchange Square in towers of 9, 16 and 27 storeys. On the north side of the Park, PBSA development was under construction at The Emporium, a 15 storey tower containing 185 student bed spaces. Between Exchange Square and the Park, adjoining The Emporium, two residential buildings had recently been completed, Masshouse (15 storeys) and The Hive (16 storeys).

Relevant planning history

[15]On 20 January 2009 planning permission was granted to BCU for the development of its proposed campus on the Appeal Site, including a concert hall, a theatre, retail uses, car parking, landscaping and associated works involving the stopping up of Bartholomew and Banbury Streets. An application in connection with reserved matters was submitted in November 2009 seeking approval of layout, scale, appearance and landscaping for phase 1 of the BCU campus. The 2009 BCU permission remained extant and capable of implementation in March 2018.

[16]The campus development permitted by the 2009 BCU permission divided the Appeal Site into three blocks, A, B and C, and limited the extent of development on blocks A and C (but not block B, which could comprise the full 55,000 sqm permitted). The disposition of uses on the Site was controlled by parameter plans which identified specific buildings for teaching, as performance and lecture space, and as an arts foyer. If BCU had proposed changing the intended use of any building it would have been required to seek the Council’s permission to amend the parameter plans.

[17]The relevant planning history of Sites 1, 3 and 4 is described in Quintain at [29] to [36]. At the valuation date, outline planning permission was extant at Site 1 for a mixed use residential, office, hotel and retail development of up to 93,700 sqm, and reserved matters approval had been granted for a first phase comprising an office building. At Site 3 outline permission was extant for up to 130,000 sqm of office, residential, retail, medical centre and leisure uses. At Site 4 full planning permission was extant for 260 dwellings with ancillary uses; 748 student bed spaces had been built under the same permission on an adjacent site and were already occupied.

Planning policy context

[18]We are required to determine the application in accordance with the development plan unless there are material considerations that indicate otherwise. We described relevant planning policies in Quintain at [74] to [91]. In Secretary of State for Transport v Quintain City Park Gate Birmingham Ltd & Ors

[2025] UKUT 7 (LC)

, we determined that by 2018 there was a need for around 20,000 student bedspaces in the City as a whole, around 9,000 of which were required in the City Centre.

[19]For the purpose of this appeal, the significant policies of the Birmingham Development Plan, covering the period to 2031, are the following: PG1 specifies overall levels of growth and identifies the intention to provide 51,100 additional homes in the City (against an assessed need for 89,000 homes) and 745,000 sqm of office floorspace, primarily in the City Centre. PG3 is concerned with place making and requires high design quality for new development which should make efficient use of land. GA1.1 identifies the City Centre as the focus for retail, offices, residential and leisure activity. GA1.2 anticipates significant growth in the City Centre, with potential to provide 12,800 new homes and 700,000 sqm of offices, and designates part of Eastside (including the Appeal Site) as one of the City’s “wider areas of change” where ongoing regeneration led by well-designed mixed-use development will enable the eastward expansion of the City Centre core. GA1.3 emphasises that development must support and strengthen the distinctive character of the quarters surrounding the City Centre; in the case of Eastside, this will mean maximising its role in learning and technology and realising its extensive development opportunities. TP12 is concerned with the historic environment and emphasises BCC’s commitment to managing new development in ways which will make a positive contribution to the City’s historic buildings and townscapes. TP27 requires new housing to contribute to the creation of sustainable neighbourhoods, which will be characterised by a wide choice of housing sizes, types and tenures to ensure balanced communities catering for all incomes and ages. TP33 is concerned with student accommodation and requires that PBSA development must not have an unacceptable impact on local neighbourhoods and residential amenity and must be of a scale and massing appropriate to its location.

[20]The key requirement of the development plan for the Eastside wider area of change (and in particular the GA1 policies) was to secure the eastward expansion of the City Centre core through the provision of well-designed mixed-use development including office, technology, residential, learning and leisure.

[21]We were again referred to the March 2003 High Places Supplementary Planning Guidance (SPG), which describes the policy approach to the development of tall buildings in the City. We summarised its relevant features in Quintain at [88] to [90]. It stipulates that, outside the City Centre core, exceptional circumstances will be required to justify buildings of more than 15 storeys.

The BCC Certificate and the parties’ rival proposals

[22]The parties agree that a positive CAAD should be issued on this appeal. The Secretary of State has put forward a mixed-use scheme including residential, office, PBSA and retail space, which both parties agree would be appropriate alternative development. We will refer to this as the Secretary of State’s Scheme. In its final iteration it allows a maximum floorspace of 61,504 sqm GIA and a maximum height of 16 storeys (158.5m AOD), with the tallest element located on the corner of Fazeley Street, overlooking the Park. It includes a minimum of 152 dwellings, up to 651 PBSA bedspaces, 20,420 sqm of office floorspace and some ancillary retail.

[23]The BCC Certificate was for mixed-use development of up to 88,829 sqm GIA comprising up to 72,081 sqm of residential floorspace, up to 66,187 sqm of PBSA (2,279 bedspaces), up to 1,416 sqm of retail floorspace, up to 38,580 sqm of offices, up to 55,000 sqm of educational floorspace, a theatre of up to 6,000 sqm, a concert hall of up to 6,000 sqm, and up to 11,000 sqm of hotel space together with car parking, public realm and associated works.

[24]The development for which BCU had originally sought a certificate was described in a design and access statement and an application document dated 21 December 2018. These proposed mixed-use development of up to 101,703 sqm, including up to 89,764 sqm of residential space and up to 2,228 student bedspaces. The form of development described located the tallest elements of up to 30 storeys in broadly the same location as the Secretary of State’s Scheme, closest to the City Centre where Fazeley Street met the Park, then stepped down as it moved east towards the Principal Building. Three blocks were proposed, designated A, B and C, with the central block, B, divided into two parts, B1 and B2, separated by a courtyard. The precise mix of development was to be flexible, to enable the developer to respond to market demand.

[25]BCU’s original scheme met resistance from Council officers and underwent significant revision. A second design and access statement of April 2019 maintained the principle of three blocks, with block B divided into two, but reduced the scale of the proposed development to a maximum of 88,829 sqm. The tallest element, now reduced to 27 storeys (194m AOD), was relocated to the longer, north-western side of the development, on the corner of Banbury Street opposite Masshouse, with a second tower, of 20 storeys (172.4m AOD), a little further east on the adjoining Banbury Street corner. It was this revised form of development, emerging from discussions with Council officers, which was described in the BCC Certificate. We will refer to it as the CAAD Scheme.

[26]BCU invites the Tribunal to certify an amended version of the CAAD Scheme which allows a maximum floorspace of 88,760 sqm GIA and a maximum height of 27 storeys with a second tall tower of 20 storeys. We will refer to this as BCU’s Scheme. BCU also supports the principle of hotel, theatre and concert hall uses which were added to its original proposals by the Council although it has produced no illustration of a development incorporating these facilities.

[27]In aggregate the space described in the BCC Certificate far exceeds the permitted maximum of 88,829 sqm. Like the certificate sought in Quintain, the CAAD Scheme is intended to be flexible. The application was prepared for BCU by Mr Rouse, who also acts as its planning expert in the appeal, and who adopted the same “menu of uses” approach which he had proposed for Site 1 on behalf of Quintain. In recommending the grant of a certificate in this form for the Appeal Site, the Council’s officers described the proposal as “a flexible scheme providing a range of uses” and advised its planning committee in their report of 18 July 2019 that “flexibility is required in order to respond to changing market demands over the extended delivery period” of the putative development.

[28]In his evidence, Mr Rouse commended what he called “the inherent flexibility of the menu based approach which the AAD proposals embody”. In our Quintain decision we explained why we did not consider Mr Rouse’s approach was consistent with the development plan and that, to render it compliant, the mix of uses on Site 1 would need to be controlled by minimum floorspace conditions requiring uses other than PBSA (Quintain [181]-[189]). In short, a planning permission which might provide in excess of 66,000 sqm of PBSA and no general residential space would not be consistent with the requirement of mixed-use development and would not contribute to the achievement of a sustainable neighbourhood. The Quintain proposal would also have left the developer free to choose the form of development from the menu without further reference to the Council. We considered that, if that degree of flexibility was afforded to Quintain it would be difficult to refuse the same flexibility to other developers which would risk the dominance of Eastside by a single use, contrary to the development plan.

[29]Having considered the Quintain decision Mr Glover KC pivoted away from Mr Rouse’s approach. He invited us to read the BCC Certificate not as an inherently flexible menu giving the developer freedom to choose any combination of uses it preferred, but as a “compendium” of specific schemes for which planning permission could have been obtained at the valuation date. Five such specific schemes, or “scenarios”, were described in additional evidence filed in response to the Quintain decision by (curiously) BCU’s expert on heritage matters, Ms Stoten. These scenarios described specific uses for each of the blocks on the Appeal Site, illustrating a variety of forms each building could take according to its designated use. The same variety of forms could have been selected from the original menu, but for the first time they were presented together in particular combinations. One of the five scenarios identified PBSA as the permitted use for all four buildings with the only other use of the Appeal Site being for a small quantity of retail space to activate frontages. Mr Glover referred to this PBSA led scheme as his “specimen application”.

[30]Although Mr Glover was reluctant to accept that BCU’s case had changed, we have no doubt that it has. The BCC Certificate, which with minor adjustments still represents BCU’s pleaded case, adopted the menu of uses approach, the effect of which, as described in Quintain at [188], was that “the developer would be free to choose the most profitable form of development, with no minimum requirement for less profitable uses”. In positing five distinct scenarios, each of which we were invited to treat as the subject of a discrete planning application, BCU’s case was recast in a more conventional form, in which the proposed development is properly defined and more readily capable of assessment.

[31]No objection was taken by Mr Williams KC to this change in BCU’s case. In closing, Mr Glover KC did not press us to confirm the BCC Certificate but invited us instead to address the five scenarios and to determine whether planning permission would have been likely to have been granted for them on the valuation date in March 2018. As the five scenarios relate to different physical forms of development, as well as different uses, it is necessary to address the issues over design and use before considering whether planning permission is likely to have been granted for the development described in each of the scenarios.

Design, townscape and heritage

[32]Evidence on design, architecture and townscape issues was given by Mr Robert King, a director of Howells, a firm of architects based in Birmingham, and by Mr Colin Pullan, an urban design practitioner and senior design director at the development consultancy, Pegasus Group. Mr Pullan had had no involvement in the design of the CAAD Scheme or BCU’s Scheme but Mr King had designed the Secretary of State’s Scheme and so while he was well able to explain it, he was not in a position to make an independent appraisal of its merits.

[33]Mr Pullan and Mr King agreed that in principle the Appeal Site was an appropriate location for tall buildings, as defined in the High Places SPG (buildings over 15 storeys). Its location, adjoining the centre of the Park and at, or near, the conjunction of routes to and from the City Centre, Digbeth and Eastside, its proximity to transport infrastructure, and the policy ambition to expand the City Centre core into Eastside, were all circumstances which would justify a grant of permission for tall buildings despite the area not having been identified as suitable in the SPG maps. The matters on which Mr King and Mr Pullan disagreed were, first, the location and scale of those tall buildings and, secondly, the acceptability of the CAAD and BCU Schemes with respect to massing, articulation and height.

[34]Evidence on heritage issues concerning the impact of the proposed developments on the two listed buildings, the locally listed pub, and the conservation area was given by two members of the Chartered Institute for Archaeologists, Mrs Amy Jones, Head of Heritage at the consultancy firm Ecus, and Ms Gail Stoten, Heritage Executive Director at Pegasus Group. Whether there was any significant disagreement between them was at first unclear. We found it difficult to distinguish between Ms Stoten’s view that the CAAD Scheme would cause “very low less than substantial harm” to the setting of the Principal Building and the Woodman and Mrs Jones’ opinion that it would cause “less than substantial harm at the lower end of the scale”. They agreed that some level of harm would be caused by the CAAD Scheme to both of the listed buildings and to the locally listed Eagle and Tun, but it became clear from their oral evidence that Mrs Jones perceived greater harm than Ms Stoten. They disagreed over whether harm would also be caused to the Warwick Bar conservation area and on the impact of the Secretary of State’s Scheme.

[35]Despite the disagreement on some issues between the experts, it was common ground that the Secretary of State’s Scheme would have obtained planning consent and should therefore be included in a certificate issued by the Tribunal. It is not necessary for us to express any view on that consensus, and we will certify the Secretary of State’s Scheme on the basis of the parties’ agreement. That does not, of course, mean that significantly larger schemes might not also have obtained consent, and we must assess the other proposals on their own merits.

[36]The disagreement between Mr King and Mr Pullan over the appropriate location for tall buildings initially appeared to be a contest between block A, the smallest and most westerly of the three blocks into which the historic street pattern divides the Site, and block B1, on the northern side of the Site. Mr King favoured block A, where Fazeley Street meets the Park, for a 16-storey building which he envisaged as student accommodation. The CAAD Scheme, which Mr Pullan supported, located its two tallest buildings on opposite corners of the newly reopened Banbury Street, overlooking the Park at the northern end of Block B1 and the western end of Block C. The taller structure would be a building of 27 storeys which would be “cranked” or “canted” at an oblique angle dictated by its corner position. The secondary building would be of 20 storeys but it would be omitted altogether if block C was intended for office use. Mr King’s design therefore placed the tallest building at the greatest possible distance from the two listed buildings, whereas the CAAD Scheme positioned two tall buildings much closer to the heritage structures, though still separated from them by a 6 storey wing of block C.

[37]Mr King justified his preferred location on the grounds that Fazeley Street was the key threshold between the City Centre and Digbeth and that a building of 16 storeys positioned on block A would mark that transition by a prominent and legible gateway feature. Mr Pullan considered that a building of that size in the suggested location would barely be noticeable on the City’s skyline and that a much taller building positioned at the end of Banbury Street opposite the existing tall buildings at Masshouse, would more successfully mark a focal space within the Park, punctuating views south-east from Priory Queensway and forming part of a cluster of tall buildings on either side of the Park.

[38]Interesting though this debate was, it lost its significance when Mr King explained that it was not his view that planning consent would be refused simply because a developer chose Banbury Street as their preferred location for a tall building. There are things to be said in favour of both positions, and BCU had also favoured Fazeley Street in its initial design proposal. If we had to decide which was the better location we would agree with Mr King. We have difficulty with the proposition that Banbury Street would be the more significant entrance to Digbeth despite being re-opened after 50 years and being accessible only to pedestrians. But we are not required to choose between alternative schemes, and we acknowledge that professional opinions may quite reasonably differ. For the purpose of the appeal, all that matters is that the experts agree that a decision to locate a tall building either on Fazeley Street or on Banbury Street would not be inconsistent with the development plan and would not lead to a refusal of consent. We accept that assessment.

[39]The other contentious design issues concerned massing, articulation and height. Mr King considered that the towers included in the CAAD Scheme are too tall, and that the way in which they were grounded emphasised their bulk. He also took issue with the design of the lower blocks and was critical of their uniformity. In his view the consistent heights of the CAAD Scheme buildings and their lengthy, unbroken elevations would present a monotonous and overbearing edge to the Park, and that on the opposite side of the Appeal Site, where they simply mirrored the railway viaduct, they failed to respond to the variety and granularity of Digbeth and the Warwick Bar conservation area. Mr King adopted a different approach in his design of the Secretary of State’s Scheme by varying building heights to provide stepped rooflines and by inserting breaks between and within plots. In his view, these techniques responded more appropriately to the finer urban grain of Digbeth on the opposite side of the viaduct. For his part, Mr Pullan considered that the continuous northern and western facades of BCU’s proposals would be consistent with Millennium Point on the opposite side of the Park, and that the scale, massing and design of blocks A and B2, on the viaduct side of the Site, would contrast successfully with the character of Digbeth and be complemented by the linearity of the viaduct.

[40]Some of these points of design detail seem to us to be out of place in a CAAD appeal. We note that in their report to the planning committee, BCC’s officers qualified their approval of the CAAD Scheme by identifying a need for further detailed design work in a number of significant places. That seems to us to be a perfectly proper approach. The form of any major development project is likely to evolve and change at the detailed design stage, and the schemes we are asked to consider are simply examples of the design choices which might eventually be made. The purpose of a CAAD is to assist in the valuation of the Appeal Site, not in its development, so design choices which do not significantly affect the quantum of the development are of limited relevance. It is necessary to distinguish between the ability of a scheme to comply with relevant policies or to accommodate major constraints such as those imposed by heritage assets, on the one hand, and whether the appearance of a building could be improved by greater articulation or by varying its roof line or whether a tower is sufficiently distinct from its neighbouring structure on the other. Objections in the former category are material to a CAAD determination, because those policies and constraints could justify a refusal of consent; but many of the design issues raised in these proceedings were considerations of a lesser order. The question for us is not whether one scheme is better than another; it is whether each of the schemes proposed would be likely to have obtained planning consent. We are entitled to approach that question wielding a relatively broad brush, as the Supreme Court has explained.

[41]The key design issues which we consider it is necessary to resolve concern the number and height of the towers proposed as part of the CAAD Scheme and BCU’s Schemes, and the relationship between the Appeal Site and the Warwick Bar conservation area. Both of these issues affect the scale of development and therefore its value. They also overlap with the evidence of the heritage experts.

[42]So far as other design issues are concerned, we note and give weight to the endorsement of the CAAD Scheme by the Council and its professional officers, and we are not persuaded by Mr King that the inconsistencies which he detected with the design policies of the development plan would lead to consent being refused. Those inconsistencies were either matters of judgment or taste, on which a range of views is possible, or were matters of detail which would be capable of further consideration and resolution at the detailed design stage.

[43]Mr King considered that a tower no taller than 16 storeys should be permitted on the Appeal Site. The development plan itself places no limit on the height of tall buildings, but the Big City Plan of 2011 envisaged buildings in Eastside of between 6 and 10 storeys, rising to 16 storeys to mark key views. The Big City Plan is not part of the development plan and carries only limited weight, but the buildings at Masshouse and all but one of those at Exchange Square, appear to respect the limit of 16 storeys. It is clear, however, that if 16 storeys remained a general rule, it was a rule to which exceptions had been permitted before the valuation date. Phase 1 of the Exchange Square development at the western end of Eastside, adjoining the City Centre, obtained permission for a building of up to 27 storeys (202.5m AOD) in 2016, and at the opposite end of Eastside, at University Locks, a PBSA building of up to 19 storeys had been completed by the valuation date.

[44]Mr King did not suggest that buildings taller than the 16 storeys he envisaged would never be permitted at appropriate locations in Eastside, and in the Site 1 and Site 4 appeals he himself acknowledged that buildings of 24 and 21 storeys respectively would be acceptable. However, the building he proposed on Site 1 was part of a cluster adjoining the City Centre core, close to a location identified as suitable for tall buildings in the SPG. He also regarded University Locks, and the tall building he proposed opposite it for Site 4, as appropriate to their particular location at the eastern entrance to Eastside and the expanded City Centre core. With those exceptions, within Eastside buildings marking key locations were consistent with the scale contemplated by the Big City Plan. Mr King’s belief that 16 storeys should be treated as a limit for the Appeal Site was also based on consistency with the Masshouse buildings, respect for the general principle that heights should rise from east to west in the City Centre, and recognition of the Appeal Site as lying at a point of transition between Eastside and Digbeth where distinctly lower buildings were the norm.

[45]Mr Pullan considered that a building of 27 storeys would be acceptable, and his view was shared by the Council’s officers. We agree with them, on the assumption that the design of such a building is of the highest quality. Viewed in isolation, we do not consider that a single building of 27 storeys (194m AOD) on the corner of block B1 would be refused consent simply because it was too tall. We note the officers’ endorsement of development on this scale and in this location, after their rejection of BCU’s original taller scheme. We give weight to their judgment that 27 storeys was an acceptable height and would make an appropriate contribution to the wider city skyline. It would be taller than anticipated by the Big City Plan (not a development plan document) but University Locks, at 19 storeys, shows that the Plan had already been overtaken by events in Eastside. The proposed building would relate successfully to its immediate neighbours across the Park at Masshouse, forming a cluster on the skyline without mimicking their height. It would not depart from the principle of east-west progression in the height of tall buildings, which in any event was not universally observed in the City Centre. It would be taller than buildings to the east, and at Masshouse, but further west the 27-storey tower under construction at Exchange Square would appear a little taller (202.5m AOD). Other buildings in the Exchange Square cluster would be lower but the principle is concerned with the gradation of the skyline rather than the height of individual buildings and we do not think it would be contravened by these relationships.

[46]The more difficult question is whether a second tall building in the same location would be justified. Mr Pullan was realistic when assessing the townscape benefits of tall buildings on the Site. In particular, he accepted that the same benefits (namely, providing a landmark, defining the centre of the Park as a key location, contributing to a cluster of tall buildings, acting as a gateway to Digbeth and terminating key views) would also be provided by a single tall building or by one or more smaller buildings. In Mr Pullan’s view two buildings would be better than one, but one building would be beneficial in the same respects as two. It was for that reason that he concluded that configurations of the CAAD Scheme which omitted the 20-storey building on block C would provide the same townscape benefits as a scheme which included it, as those benefits were secured by the 27-storey building on block B1.

[47]Three arguments were advanced by BCU in favour of two tall buildings, rather than one, namely, that two buildings would better define the Masshouse cluster of tall buildings, that together two buildings would frame the entrance to Banbury Street, and (in submissions) that they would optimise, or maximise, the development on the Appeal Site as required by policy. As to the first argument, Mr King made the point, which Mr Pullan acknowledged, that from many views the two towers would appear as one; given the bulk and elongated form of the taller tower we agree with Mr King that when viewed in this way the impression of a tower would begin to be lost, and to be substituted by the appearance of a continuous wall of development, which would detract from the effectiveness of the cluster. Mr Pullan also acknowledged that Banbury Street (which appears to us to be a distinctly secondary, pedestrian route) could equally well be framed by much lower buildings. As for optimisation, the illustrative scenarios in evidence demonstrate that the CAAD Scheme permits the Site to be developed in a variety of ways depending on the proposed uses, none of which could be said to leave it underdeveloped. On the contrary, each scenario represents the efficient use of land and the optimal development of the Site for a particular combination of uses. We therefore give relatively little weight to an argument based on relative optimisation.

[48]The weightiest argument against the case for the tall buildings (whether one or two) included in the CAAD Scheme was their impact on the setting of the grade I listed Principal Building. From the north, looking down New Canal Street, and in closer proximity to the station itself, the 20-storey tower on the north-western corner of Block C, and the 27-storey cranked tower on the north-eastern corner of block B1 would dominate the setting and would detract from the monumental scale of the Principal Building. The size and distinctive form of the taller building would compromise the viewer’s ability to appreciate the Principal Building, as would its closer 20-storey neighbour. We do not think Ms Stoten’s point that the Principal Building was not designed to be viewed from a distance overcomes this objection, since views across Curzon Street and down New Canal Street (agreed viewpoints 3 and 4) were always available and were considered by Ms Stoten to make the greatest contribution to the significance of the station through its setting. We agree with Mrs Jones’ assessment that the towers themselves would cause less than substantial harm to the setting of the Principal Building. That assessment seems also to have been the view of Council officers. Referring to the taller elements of the CAAD Scheme, they stated in their report of 18 July 2018 that “the height of the proposed buildings would not dominate the setting of these assets to the extent that substantial harm to the significance of designated heritage assets would occur.” We read that as a recognition that less than substantial harm to the setting of the grade I and II listed buildings would be caused by the proposal. Less than substantial harm is, of course, a very broad classification, and the harm which will be caused will be at the lower end of the scale.

[49]We consider that the extent of the harm to the Principal Building would be reduced significantly, though not eliminated, by the removal of the 20-storey tower. Block C would then present as a building of uniform height, comparable to the height of the Principal Building itself (a relationship on which the planners are said to have insisted when considering the extant BCU campus scheme) and would extend the distance between the Station and the visual intrusion of the development. For the same reason it would reduce any perceptible harm to the grade II listed Woodman, although this is a consideration of much less importance. The omission of the second tower was a modification which Mr Pullan considered would not cause the loss of the townscape benefits which justified the inclusion of tall buildings on the Site in principle. We therefore take a different view from the Council’s officers on the acceptability of the second tower (although if they considered the possibility its omission they did not say so). In doing so we note from their report that officers considered wider consultation would have been required, including with Historic England, if the CAAD application had been an application for planning permission. We also bear in mind that both heritage experts differed from officers in their assessment (Ms Stoten recommended significant changes to block C to reduce the harm she perceived to the Principal Building resulting from the design approved by officers) and that the evidence we have received on heritage issues is very much more detailed than the submissions described in the officers’ report.

[50]Great weight is to be attributed to the conservation of heritage assets, and the more important the asset the greater that weight should be. Any harm to the significance of a heritage asset, including from development within its setting, requires clear and convincing justification, which may be provided by the public benefits of the proposed development. National policy (NPPF, paragraph 196), requires that harm which is classified as less than substantial should be weighed against the public benefits of the proposal. Historic England’s Good Practice Advice on the setting of heritage assets, GPA3, requires that consideration be given to ways in which harm can be avoided or minimised, including by remodelling intrusive elements or changing the design of a development. Ms Stoten was inclined to regard this requirement as operating at a relatively high level, and as referring to harm which could easily be avoided or designed out without prejudicing the proposed scale of development. Mrs Jones treated it as more fundamental. Whichever view is preferred, considerable weight should be given to harm to a grade I listed building, and whether opportunities to minimise that harm have been taken is, in our judgment, a material consideration in determining whether that harm has been convincingly justified. When we consider the five specific development scenarios now envisaged for the Appeal Site and weigh the public benefits each would secure against the heritage harm which they cause, we will bear in mind that several of those scenarios omits the 20-storey tower on block C altogether. The Site can therefore be developed in an optimal form which secures the same public benefits while significantly diminishing the harm to the Principal Building from other configurations of the CAAD Scheme.

[51]As for the impact which development on the Appeal Site may have on the setting of the Warwick Bar conservation area, from which it will be visible, Mr King and Mrs Jones were of the view that the CAAD Scheme would be harmful, while Mr Pullan and Ms Stoten considered that it would not. The Council’s officers acknowledged that the scale and mass of blocks A and B would have a visual impact on the adjacent area of Digbeth but noted that the proposals were consistent with the scale of development previously consented on the Site. They recommended further refinement of the design but considered that heritage impact provided no reason for refusal.

[52]Mr King’s concern was less about height (apart from the towers the CAAD buildings are all within the range permitted by the extant BCU campus consent) and more about uniformity, whereas Mrs Jones considered that the incorporation of tall buildings would interrupt the horizontal emphasis of the viaduct and would detract from an appreciation of the conservation area. We respectfully disagree. The Appeal Site is not within the conservation area, and any harm caused would be to its setting, the area within which it is experienced. Nor is the viaduct within the conservation area; it is a visual terminus marking the boundary between the conservation area and the adjoining Site and contributing to a sense of enclosure. Part of that sense of enclosure is achieved by the presence of development on a different scale beyond the viaduct, buildings of consistent height on block B1 would contribute to that enclosure and taller buildings behind would emphasise difference. The emerging character of Eastside and the established character of Digbeth and the conservation area are distinctly different, and the line of demarcation between them is clearly marked by the viaduct. Eastside is intended to accommodate the growth of the City Centre, rather than to act as a transition zone between the centre and Digbeth, and it is appropriate that it features city-scale development which contrasts with the scale of development on the other side of the tracks. We agree with Mr Pullan’s view, and that of Ms Stoten, that in both design and heritage terms the CAAD Scheme does not threaten or harm the conservation area.

[53]The final heritage asset is of lesser significance. Until it was demolished to make way for HS2, the locally listed Eagle and Tun was a red brick public house on the corner of New Canal Street and Banbury Street dating from 1900. Mrs Jones considered that it would be overwhelmed and dominated by the scale of development of 8 storeys on Block B2, opposite it on New Canal Street. But by 2000 the adjoining development had all been demolished and at the valuation date the Eagle and Tun stood marooned and stripped of its former setting. That setting would be significantly improved by the CAAD Scheme and in any event it is debatable whether setting made much of a contribution to the significance of the building. Ms Stoten considered that the significance of the asset lay in its fabric, and that its setting added little. The Secretary of State’s Scheme would position buildings of 6 storeys on block B2 and 8 storeys diagonally opposite the Eagle and Tun on block C. Mrs Jones considered no harm would be caused by that arrangement, and we are not persuaded that the taller CAAD Scheme building on B2 would make a perceptible difference.

[54]In making our own assessment of the compatibility of the CAAD Scheme and the various BCU Schemes with the design policies of the development plan, we have not found it necessary to dwell on the cumulative effect of development on the four CAAD sites. That issue continued to occupy a good deal of written and oral argument, despite what was said about it in Quintain. To recap, the starting point is that a CAAD application is to be determined by applying normal planning principles to a hypothetical planning application in circumstances shaped by the cancellation assumption but otherwise reflecting the real facts at the valuation date, so far as they were known to the market. In this appeal the circumstances known to the market at the valuation date give rise to an expectation that applications for permission to develop the adjoining sites on a similar scale and for similar uses will come forward for determination imminently, and the expectation of substantial regeneration can properly be taken into account in determining the notional application for planning permission for the Appeal Site. But the CAAD applications made in relation to other sites are not relevant circumstances, and the details of the proposals described in them are not matters to be taken into account. It is not to be assumed that the notional planning authority which decides the application also has before it applications for the other CAAD sites or has any number of different applications for the Appeal Site. Each application is to be decided on its own merits and not by comparison with other applications. But the planning authority is properly advised by professional officers who are perfectly entitled to have regard to alternative ways in which the Site could be developed if they consider that to be relevant (for example, in order to reduce harm to heritage assets). Whether such alternatives are available is a matter of evidence; whether they are relevant is a matter of planning judgment.

Use

[55]As we have already explained, we were invited by Mr Glover KC to regard the CAAD Scheme not as a menu for the developer to select from as the market might dictate, leaving the local planning authority with no control over the eventual disposition of uses on the Site, but to see it instead as a catalogue or compendium of distinct schemes envisaging particular uses which should be assessed at the decision making stage. That approach purges BCU’s case of the uncertainty which we identified as one of the principal vices of the very similar proposal in Quintain. It is therefore necessary for us to assess each of the illustrative scenarios relied on by BCU against the policies in the development plan as if they were discrete applications for planning permission. Those scenarios include the proposal which Mr Glover put forward as his “specimen” application, which envisages the whole or substantially the whole of the development on the Appeal Site being allocated to a single use, namely PBSA. Scenario 1 describes total development of 71,080 sqm GIA, in three blocks the permitted use of each of which would be PBSA, with only 1,416 sqm of retail space in block B1.

[56]The assessment therefore raises a prior question, which is a question of interpretation of the development plan, namely, whether the development of large sites in Eastside for single uses is in accordance with the development plan, or whether mixed-use development is required. We reached our conclusion on that question in Quintain, at [185]. Neither party in this appeal put forward a different interpretation of the development plan, and Mr Rouse and Mr Adams both confirmed that they had considered and applied it in their final round of evidence. For convenience we repeat what we said in that paragraph:

“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.”

[57]Mr Glover KC submitted that the key to our assessment of Quintain’s proposal was to be found at [188], where we referred to the principle of consistency, and said that “[i]f 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.” Mr Glover respectfully disagreed with that proposition and submitted that if consent for primarily PBSA use was permitted on the first of the four Eastside sites, that would be a material consideration when any application on other sites was considered. In those changed circumstances consistency would not require that consent be given for another primarily PBSA development. That is clearly correct, but it misunderstands the proposal put forward in Quintain and misses the point we were making at [188]. Quintain was not seeking consent for a PBSA scheme, but for its largely unrestricted menu of uses. The problem of consistency which faced us, and which we were addressing, was as we stated earlier in the same paragraph:

“[i]f it [the notional planning authority] 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.”

We remain of the view that, having treated the menu of uses as acceptable, and thereby having given up to one developer almost complete freedom to choose how its site would be used, the planning authority would be in no position to refuse the same freedom to a neighbouring developer. It would be unable to rely on the grounds of objection suggested by Mr Glover, that sufficient provision for a particular use had already been made, or that some different use was also required, because at the time of its decision it would not know what uses the consented site would be put to. Mr Glover acknowledged that the position would be “more complex” if the first permission was an entirely flexible one, but on that hypothesis he did not submit that our reasoning in Quintain was unsound.

[58]Scenario 1, BCU’s “specimen application” is for a PBSA-dominated proposal comprising 71,080 sqm of floor space of which 1,416 sqm is ground floor retail and the remainder is PBSA. It differs from the certificate we were asked to grant in Quintain because it is for a specific form of development. But in another respect, it is a much more extreme proposal. Quintain sought a certificate which would have required at least 19,212 sqm of office development out of a potential total of a little under 100,000 sqm (see Quintain, at [164]). A further positive requirement of retail space at ground floor level meant that its proposal was for a mixed-use development comprising at least three distinct uses: office and retail, together exceeding 20% of the total, plus one or more of PBSA, general residential, and hotel. We recognised that at [186] and explained that the real question was therefore whether there should be also be a positive requirement for a residential component in the permitted uses of the site. This appeal poses a different question, namely, whether development which is not mixed-use at all, but which is effectively a single use scheme with a minimal retail component, is consistent with the development plan.

[59]The Appeal Site is a large site and the first to be reached after crossing the Park from the City Centre. It is at the core of Eastside and has an important contribution to make to achieving the goals of the development plan for this quarter. It lines the Park for half of its southern boundary and, taken together with the Emporium PBSA building on the opposite side, it also has the potential to influence the character of the City’s key new public space. Large vacant sites like this are critical to the success of the City’s longstanding ambitions to expand the City core into Eastside and to combine office, technology, residential, learning and leisure uses in well-designed mixed use developments. It is of the scale and importance we had in mind when we referred in Quintain at [185] to the consequences of the domination of a significant part of a large area by a single use. For the whole of the Site effectively to be devoted to PBSA would in our judgment be contrary to policies GA1.1, 1.2 and 1.3, PG3 and TP 27 of the development plan. It would fail to ensure the delivery of mixed-use development or to improve the overall mix of uses in Eastside. It would make no contribution to the provision of office space, which is an important City Centre role for Eastside, and although it would meet the housing needs of 2,279 students and free up some residential space they might otherwise have occupied in HMOs, it would be characterised by accommodation of the same type and tenure and would not support the creation of a sustainable neighbourhood or contribute to the achievement of a balanced community.

[60]BCU’s scenario 2 is a residential led scheme of 82,805 sqm providing approximately 53,000 sqm of residential floorspace, a little over 28,000 sqm of offices, and 1,416 sqm of retail. Its tallest element is the 27-storey tower on block B1, but the basic form of the development has been altered in this iteration to omit the second 20-storey tower on block C. This design choice is associated with the use of block C as a 4 storey office building with a continuous floorplate spanning the area designated as a private courtyard in the PBSA scenario. The floorplate of block B2 is also modified for office use. In this version the buildings overlooking the Park are mainly residential and the buildings closer to the railway line and to the listed buildings are offices. Mr Adams approved of this approach as it maximised the amenity of the residential space by positioning it next to the Park, while locating the office component at the eastern end of the Site where it could contribute to an office hub on New Canal Street in the vicinity of the listed buildings (which had been identified as the most appropriate location for offices in the permission previously granted for Site 3). There is good sense in both of those points and, leaving aside heritage issues at this stage, we can see no conflict with the policies of the development plan. Scenario 2 makes a significant contribution to the supply of office and residential space in a critical Eastside location. Apart from the distinctive tower, it is generally consistent with the scale of development previously permitted on the Site, and by eliminating the second tower and thus reducing the visual dominance of the development it is also significantly less harmful in its impact on the Principal Building.

[61]Scenario 3 is a variant of scenario 2 containing about 21,000 sqm of office space in two buildings (blocks A and C) and around 60,000 sqm of residential in blocks B1 and B2, including the single 27-storey tower on block B1. The same retail component as before brings the total floorspace to 82,005 sqm GIA. Although the distribution of office space at opposite ends of the Site, and the reduced proximity of the smaller residential building to the Park, are less appealing than the arrangement in scenario 2, once again (heritage considerations apart) we can see no reason why this version is not also compliant.

[62]Scenario 4 is a further single-tower proposal, this time introducing PBSA into the mix. It is the smallest of the BCU scenarios, totalling 66,355 sqm GIA in 4 blocks providing 11,110 sqm of residential space in block A, 43,000 sqm of PBSA and 1,416 sqm of retail in blocks B1 and B2, and 10,794 sqm of offices in block C. Although PBSA represents almost two-thirds of the total floor space, in the absence of concerns about any adverse impact of student accommodation on general residential amenity, that is not objectionable in itself. The proposal makes a meaningful contribution to residential and office provision so is well aligned with the objectives of the development plan for Eastside.

[63]The final version of the BCU Scheme, scenario 5, reverts to the original form of block C with its 20 storey tower and proposes 82,305 sqm GIA of which approximately 47,500 sqm would be residential and 33,300 sqm would be PBSA. The provision of student accommodation in conjunction with high quality residential space overlooking the Park would contribute to meeting two significant needs. The only substantial objections to this scheme are those associated with the inclusion of a second tower closer to the grade I listed Principal Building.

[64]In summary, therefore, we are satisfied that the variants of the BCU Scheme described in scenarios 2, 3 and 4 are non-compliant with the development plan only because of the harm they would cause to the setting of the Principal Building. Scenarios 1 and 5, each with two towers, would cause greater harm, and scenario 1 would additionally be contrary to the principle of mixed use development on large sites.

[65]We can also deal shortly with the CAAD Scheme itself. It was approved by the Council on the same basis as the development in Quintain, without any minimum use requirements (not even for ground floor retail). In a development of up to 88,829 sqm it authorises 66,187 sqm of PBSA, representing 75% of the permitted maximum (with no requirement to deliver that maximum). It guarantees no minimum quantity of residential, office or education space and in its most likely configuration it would be dominated by student accommodation. If the maximum permitted development was eventually built out it would be a less extreme version of BCU’s scenario 1, but in the absence of any mechanism to secure a mix of uses it could equally be indistinguishable from it. For the reasons we gave in Quintain, the absence of definition in the disposition of uses permitted by the CAAD Scheme means that it is also inconsistent with the development plan.

Planning balance

[66]In our judgment the CAAD Scheme would not have been likely to have obtained planning permission at the valuation date because it was for an undefined scheme the advantages and disadvantages of which could not properly be measured against one another. That defect is capable of being cured by the imposition of conditions requiring that development be in accordance with parameter plans, as discussed in Quintain. On that basis the remaining objections to the CAAD Scheme are on heritage grounds, restricted to the impact of the twin towers on the setting of the grade I listed Principal Building. This causes an adverse effect at the lower end of less than substantial harm. Mrs Jones took account of other less convincing impacts and our own assessment falls within the poorly defined grey area between her views and those of Ms Stoten. We give considerable weight to this harm to a building of the highest significance. The fact that it is capable of being reduced by the adoption of one of the single-tower alternatives put forward by BCU itself does not change the quantum of harm, but it makes it much more difficult to justify. The agreed benefits of the CAAD Scheme and either the BCU Schemes or the Secretary of State’s Scheme in regenerating the neighbourhood and achieving the objectives of the development plan are not significantly different. Nor is the total floorspace delivered by the CAAD Scheme much more than is achieved by BCU’s scenario 3. In those circumstances we consider that the heritage policies of the development plan would be decisive, and that in March 2018 planning permission is unlikely to have been granted for the CAAD Scheme.

[67]The same considerations would result in the rejection of BCU’s scenarios 1 and 5.

[68]The level of harm to the Principal Building caused by BCU’s scenarios 2, 3 and 4 is significantly reduced by the omission of the second tower and is outweighed by the benefits development in any of those forms would deliver. We are satisfied therefore that, subject to appropriate conditions, planning permission would have been granted for those variants.

Conditions

[69]There is a good measure of agreement between the parties over the conditions which would be attached to any grant of planning permission for the Appeal Site. The points of contention relate to conditions concerning maximum floorspace, minimum floorspace, approved drawings, dwelling mix, and development phasing.

[70]In our judgment conditions regarding maximum and minimum floorspace and phasing are necessary to define the development and to ensure that a mix of uses is delivered. In this important location it would be unsatisfactory for development to be delivered in too partial or piecemeal a fashion. To avoid the risk of either, we include the conditions proposed by Mr Adams to the effect that no more than 50% of the student accommodation should be occupied before the commencement of the residential and office phases, and that the retail space should be provided on completion of each building intended to include a retail element.

[71]Mr Adams considered that a parameter plan should be imposed showing the uses of each block and that it should be coupled to a condition requiring provision of a minimum amount of ﬂoorspace for each use. Mr Rouse felt that an acceptable mix of uses could be secured by a simple condition requiring that at least one block be used for office and at least one for residential, without specifying which those should be and without providing any minimum space requirement. Although we have been asked to assess the BCU Schemes as distinct proposals, the Certificate we grant need not be as prescriptive. We agree with Mr Rouse that a plan identifying which use should be made of which building is not necessary. Nor do we think it necessary to limit the amount of PBSA which could be provided by specifying a maximum proportion. We are content with scenario 4, which provides for around 11,000 sqm of offices and a similar amount of residential, and leaves two-thirds of the Site for PBSA. We are also content with development of up to 82,805 sqm in total, as provided by scenario 2.

[72]In principle, therefore, conditions(a) restricting development to a maximum of 82,805 sqm, including retail, residential, PBSA and office,

(b) requiring a minimum of 1,416 sqm of retail, 10,794 sqm of office space and 11,000 sqm of residential, and

(c) stipulating that each building must have a single use (as Mr Rouse proposed), would be enough to secure a mixed-use development while leaving it to the developer to decide what was the optimum arrangement. The maximum height and general layout of the buildings should also be recorded in a parameter plan or plans covering scenarios 2, 3 and 4.

[73]We received no evidence about the incorporation of a theatre, a concert hall, or education uses into the development and we see no reason to include them. They were not proposed by BCU and are unlikely to produce a higher value than office, residential or PBSA.

[74]Finally, the residential component of the development should include at least 35% of 2 bedroom units in accordance with the condition proposed by Mr Adams.

Disposal

[75]For the reasons we have given, we allow the Secretary of State’s appeal against the Certificate granted by the Council and substitute a certificate, a draft of which we invite the parties to submit, providing for mixed-use development of up to 82,805 sqm comprising retail, residential, PBSA and office floorspace and including a minimum of 1,416 sqm of retail, 11,000 sqm of residential and 10,794 sqm of offices. Martin Rodger KC, Mr Peter D McCrea OBE FRICS FCIArb Deputy Chamber President