Secretary of State for Transport v John Lewis Partnership Pensions Trust [2026] UKUT 78 (LC)

[2026] UKUT 78 (LC)Case No LC-2024-197
IN THE UPPER TRIBUNAL (LANDS CHAMBER)
IN THE MATTER OF A NOTICE OF REFERENCE
Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
SECRETARY OF STATE FOR TRANSPORTAppellantJOHN LEWIS PARTNERSHIP PENSIONS TRUSTRespondent
20 February 2026
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – PLANNING PERMISSION – certificate of appropriate alternative development – residential development – strategic industrial location – cancellation assumption – the weight to be given, in the “cancelled scheme world”, to policies heavily influenced by the scheme – noise from neighbour uses – open space – access to schools – tall buildings – housing density,
96 Victoria Road,Park Royal,London, NW10 6NBJudge Elizabeth Cooke and Mrs Diane Martin TD MRICS FAAV11-14 November and 4 December 2025Mr Andrew Tait KC and Ms Esther Drabkin-Reiter for appellant, instructed by EvershedsSutherland LLPMs Rebecca Clutten and Ms Daisy Noble for respondent, instructed by Osborne Clarke LLP© CROWN COPYRIGHT 2026The following cases were referred to in this decision:Bridgend County Borough Council v Boland[2017] EWCA Civ 1004Leech Homes Limited v Northumberland County Council[2020] UKUT 150 (LC)Quintain City Park Gate Birmingham Limited v Secretary of State for Transport[2025] UKUT 312 (LC)Secretary of State for Transport v Bleep UK PLC and others[2022] UKUT 331 (LC)Secretary of State for Transport v Curzon Park Limited[2023] UKSC 30Secretary of State for Transport v Birmingham City University[2026] UKUT 10 (LC)The Eastside Partnership Nominee Company Limited v Secretary of State for Transport[2026] UKUT 9 (LC)

Introduction

[1]This is one of the growing number of cases determined by the Tribunal as a result of the compulsory purchase of land for use in the construction of the HS2 railway line from London to Birmingham. It is the second such case relating to land near the new transport superhub at Old Oak Common; the first was Secretary of State for Transport v Bleep UK PLC and others [2022] UKUT 331 (LC) (“Bleep”), to which we shall have to refer in what follows. The present case is an appeal by the Secretary of State against a Certificate of Appropriate Alternative Development (a “CAAD”) granted by the local planning authority under section 17 of the Land Compensation Act 1961 in respect of the land in question (“the reference land”), which used to be a distribution warehouse in the ownership of the respondent, the John Lewis Partnership Pension Fund. Accordingly, this decision does not deal directly with compensation for compulsory purchase, but is about the basis on which the reference land will be valued for the purposes of compensation.[2]The CAAD obtained by the respondent certifies that planning permission would have been given for residential development on the reference land, whereas the appellant says that only industrial and commercial uses would have been permissible. Alternatively, if residential use would have been permitted, the appellant says that the development proposed by the respondent is too tall and the housing density too great; in that case, the respondent argues that a smaller development would have been permitted instead.[3]The appellant has put forward an alternative proposal for commercial development; the respondent accepts that if its own schemes are not appropriate alternative development then the appellant’s scheme is, and accordingly this decision relates only to the proposals for residential development.[4]The residential development now proposed by the respondent is much the same as that for which the local planning authority granted a CAAD (but with some design amendments; we refer to it as “the CAAD scheme”); the primary issue before the Tribunal is therefore whether it was appropriate alternative development of the site, at the “valuation date” in 2017, in accordance with the statutory criteria (or within 30 months of that date). If it was not, the Tribunal has to decide whether a smaller version of the CAAD scheme, without the tall buildings, would be appropriate alternative development; we describe the respondent’s alternative and one further suggestion at paragraphs 58 to 63 below. If no smaller version is appropriate, then the Tribunal will grant a CAAD in accordance with the appellant’s proposal.[5]The appellant was represented by Mr Andrew Tait KC and Ms Esther Drabkin-Reiter, and the respondent by Ms Rebecca Clutten and Ms Daisy Noble; we are grateful to them all.[6]Our decision is structured as follows. First we set out the factual background to the reference and the relevant legal principles. Then we explain the relevant planning policies. We ask whether those policies would have made residential development on the reference land impossible in principle, and explain our decision that they would not. Next we describe the CAAD scheme, and the alternatives presented to us. We consider whether planning permission could have been granted for any of them in the cancelled scheme world in light of issues relating to noise and amenity, open space, and access to primary schools. Finally we look at tall buildings and density.

The factual background

[7]The reference land is a rectangular site of 1.65ha, a little way north of North Acton Station. In 2017 when it vested in the Secretary of State it housed a purpose-built distribution warehouse arranged over basement, ground and two upper floors, and incorporated three floors of lightweight mezzanine storage. Its internal floorspace extended to 10,190 sq m; externally the balance of the site provided open storage space, associated car parking and landscaping. The land had previously been let for a term of 5 years to Waitrose, who vacated the premises in October 2016 following expiry of its lease. After that the Property remained vacant until 2017, save for two short term leases of the basement and part of the yard for car storage, contracted out of the security of tenure provisions of the Landlord & Tenant Act 1954.[8]The reference land was surrounded by industrial and commercial land to the north, west and south; to the east are railway lines, and beyond them the triangular Wells House Road residential area (which remains in place, sandwiched between the existing railway and the HS2 construction operations to the east). Immediately to the south of the reference land was a site operated by Quattro UK as two concrete batching plants, a waste transfer station and HGV workshop and parking for 56 HGVs. The waste transfer station processed construction, demolition, and inert waste and had the benefit of an Environmental Permit, specific to the operator and location, which enabled the acceptance of 438,000 tonnes of waste per annum and an on-site maximum storage capacity of 10,000 tonnes. The Quattro site has also been acquired by the Secretary of State; it is common ground that once HS2 is built the Quattro site will revert to its waste transfer use.[9]Also to the south, next to the Quattro site, is Boden House, 114-120 Victoria Road, a five-storey office block which serves as the headquarters of the clothing brand, Boden. The plan below shows the reference land and its surroundings.[10]It will be seen that the reference land forms part of a distinctively-shaped block of land often referred to as the “shield site”, with the Quattro site immediately to the south and a pointy area to the north, making something like an inverted shield. The reader’s attention is drawn to the existing rail connections nearby, to the nearest primary school (the John Perryn School south of the main railway line), and to the nearest public park at Wormwood Scrubs. Also of note are the tall buildings at Oaklands, north of the site and near to the intended HS2 transport hub, and around North Acton Station to the south of the site.[11]Almost none of that transformation existed when the reference land was acquired by the Secretary of State in 2017. We have to say “almost none” because some of it did; in particular, the tall buildings at Oaklands were already built (as they were at the valuation date in the Bleep decision).[12]The respondent’s CAAD, against which the appellant appeals, was granted by the London Borough of Ealing, even though since April 2015 the real-world decision-maker for planning applications in the area has been the Old Oak and Park Royal Development Corporation (“OPDC”), because the statutory instrument under which the OPDC was formed did not give it the functions of a local planning authority for the purposes of s.17 of the 1961 Act. Those functions remained with the London Borough. The CAAD stated the opinion of the local planning authority that the following would have been appropriate alternative development on the reference land: “722 dwellings, 993sq.m of commercial floor space (use class A1, A2, A3 and B1a) within 3 perimeter blocks within buildings ranging from 4-24 storeys in height with associated access, amenity space, public realm and parking for vehicles and bicycles. The Local Planning Authority (LPA) considers that the uses and scope of the development identified above would have only been granted subject to a section 106 legal agreement and the conditions listed in Appendix 1 at the end of this report”.

“722 dwellings, 993sq.m of commercial floor space (use class A1, A2, A3 and B1a) within 3 perimeter blocks within buildings ranging from 4-24 storeys in height with associated access, amenity space, p

[13]Before we decide whether such development would have been appropriate alternative development we have to set out the relevant statutory provisions and introduce the case law relevant to the cancelled scheme world in which it is to be supposed that planning permission would have been granted.

The legal background

(i) The statutory basis of appropriate alternative development and of the appeal

[14]Section 14 of the Land Compensation Act 1961 requires that in assessing the amount of compensation payable for land that has been compulsorily purchased, account may be taken of any planning permission in force on the valuation date for development on the relevant land or other land, and that it may be assumed that planning permission was in force on the valuation date for ‘appropriate alternative development’, as defined in section 14(4). This means development for which, on the assumptions in section 14(5) but otherwise in the circumstances known to the market on the valuation date, planning permission could reasonably have been expected to be granted on an application determined on or after the valuation date.[15]The valuation date is the date on which the land vested in the appellant, and is agreed to be 23 December 2017.[16]The assumptions to be made under section 14(5) are, so far as relevant:
“(a) that the scheme of development underlying the acquisition had been cancelled on the launch date, (b) that no action has been taken (including acquisition of any land, and any development or works) by the acquiring authority wholly or mainly for the purposes of the scheme, (c) that there is 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 …”
[17]The launch date is agreed to be 26 November 2013, when the HS2 Bill was presented to Parliament for its first reading.[18]Section 14(5)(a) sets up the “cancellation assumption”, which requires the Tribunal to make its decision in the hypothetical "cancelled scheme world” or “no scheme world” in which the scheme was cancelled on the launch date. In the Bleep decision the Tribunal visited the same cancelled scheme world, albeit with reference to a property a few streets away from the present reference land, so for the Tribunal this is a bit (but not much) like going through the wardrobe into Narnia a second time and exploring a slightly different part of the woods.[19]Section 17 of the 1961 Act enables the acquiring authority or the landowner to apply to the local planning authority for a CAAD stating that there is, or is not, development that is appropriate alternative development in relation to the land acquired, and describing such development if there is any.[20]Section 18 of the 1961 Act makes provision for an appeal against a CAAD to the Tribunal. In that appeal the Tribunal must make its own decision, rather than reviewing the local planning authority’s decision and it may confirm, vary, or cancel the certificate or issue a different certificate in its place. In determining whether proposed development is appropriate alternative development the Tribunal has to determine whether a reasonable planning authority, correctly addressing law and policy, could have been expected to grant permission. It must of course decide the appeal in accordance with ordinary planning principles, and the starting point is that the Tribunal’s determination must be in accordance with the development plan unless material considerations indicate otherwise (section 38(6) of the Planning and Compulsory Purchase Act 2004). (ii). The law relating to the cancelled scheme world[21]The cancelled scheme world is an imaginary world; further facts about it are set out in section 14(5)(b) and (c) (see paragraph 16 above). The Supreme Court in Secretary of State for Transport v Curzon Park Limited [2023] UKSC 30 set out important principles about what the statute does and does not say in relation to CAADs, and those principles can be seen at work in the Tribunal’s subsequent decision in Quintain City Park Gate Birmingham Limited v Secretary of State for Transport [2025] UKUT 312 (LC) (and three further decisions relating to land on Curzon Street in Birmingham, published subsequent to the hearing in this reference).[22]What the Supreme Court has said is common ground between the parties and we are anxious not to add further volumes to the discussions of the law in recent cases, nor to create ambiguity by paraphrase. Suffice it to say, first, that although the scheme must be assumed to have been cancelled nothing else is to be assumed not to have happened (paragraph 46 of the Supreme Court decision). That includes things that are not part of the scheme but would not have happened but for the scheme. Planning permissions already granted, and buildings already built by the valuation date are in existence in the cancelled scheme world, whether or not they would have been built absent the scheme and whether or not they would have been built in the same form absent the scheme. Planning policies made in the real world that are not themselves part of the scheme are equally in existence in the cancelled scheme world. Second, the Tribunal cannot construct anything in the real world. If the scheme had actually been cancelled in the real world on the launch date, in this case in 2013, a great deal would have happened after that date and before the valuation date in 2017. New planning policies would have been made, buildings would have been built, and so on. But the Tribunal cannot speculate about those events (paragraphs 74-75 of the Supreme Court decision). Just as the children in Narnia were warned that “nobody is ever told what would have happened” so it is in the cancelled scheme world.[23]We shall see those principles at work when we come to examine the planning policies that apply to the relevant land.[24]There is, however, a point of disagreement between the parties and in order to prepare to explain that we have mentioned two further cases. One is the Court of Appeal’s decision in Bridgend County Borough Council v Boland [2017] EWCA Civ 1004. Land had been acquired for the purpose of building a school. Mr and Mrs Boland sought a CAAD, to the effect that in the cancelled scheme world they would have had planning permission for residential development on their land. That could not have happened unless, in the cancelled scheme world, the settlement boundary had been re-drawn, as it was in the real world, to include the Bolands’ land. The acquiring authority argued that the boundary would not have been re-drawn in the cancelled scheme world. The question for the Tribunal and then for the Court of Appeal was whether the policy that re-drew the boundary was itself part of the scheme, and the conclusion was that it was not. More land was added to the settlement than just the school site, and the relevant planning policy meant that housing could have been built on the rest of the land. The crucial point was that the policy had a function independent of the scheme.[25]That is why in the present case certain planning policies for which the scheme might be said to have been a catalyst, and which would not have been made, or not in the same form, if the scheme had been cancelled, are nevertheless agreed not to have been part of the scheme.[26]The other case we have to mention now is the Tribunal’s decision in Leech Homes Limited v Northumberland County Council [2020] UKUT 150 (LC). Land had been acquired for the construction of a bypass; the applicants sought a CAAD to certify that the land would have obtained planning permission for residential development. The Tribunal (the Deputy President, Martin Rodger KC, and Mrs Diane Martin TD MRICS FAAV) said: “116. We recognise that the appeal site does have merits which would have caused it to be considered for residential development after the valuation date in the world of the cancellation assumption. However, the site is within the green belt, which adds a high level of protection to be weighed in the balance, and risk to the outcome of an application.[117]Before it would be possible to conclude that the site would, on balance of probability, be likely to obtain planning permission for the appellant’s proposed development, it would be necessary for a number of milestones to be passed with outcomes favourable to the appellant. It would be necessary either for the land to be excluded from the green belt when its boundaries were defined, or for sufficiently special circumstances to exist to enable planning permission to be achieved despite its retention in the green belt. It would also be necessary that it be designated as available for residential development and not either safeguarded for future development after the period of the Core Strategy, or identified as available for employment uses. Each of these contingencies introduces a measure of delay and uncertainty, and successive contingencies compound the odds against the achievement of permission for the appellant’s proposed development at, or by, any particular date.[118]The difficulty for the appellant is that the cancellation assumption itself casts a fog over the local and strategic development landscape around Morpeth and County wide. It is not possible, on the evidence presented to us, to form any confident conclusion on the changes which might have been required.”[27]The Tribunal was therefore unable to find that planning permission would have been granted as the applicant in that case argued. As the Supreme Court has recently reiterated the cancellation assumption does not permit the construction of what would have happened if the scheme had been cancelled. That means there is a period, between the launch date and the cancellation date where, as the Tribunal put it in paragraph 118 of Leech Homes, the cancellation assumption “casts a fog” over the landscape. We cannot see through it; we cannot make up what would have happened.[28]The puzzle that arises in the present case, and the point on which the parties disagree, is how the Tribunal should approach planning policies that are agreed not to be part of the scheme, and so cannot be disregarded, but which were formulated after the launch date and could not have taken the same form if the scheme had been cancelled. We return to that conundrum later.

Planning policy in the cancelled scheme world

[29]The Tribunal has to decide whether planning permission could reasonably have been expected to be granted for the reference land in accordance with the CAAD scheme, on an application determined on or after the valuation date. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that such an application must be determined in accordance with the development plan, “unless material considerations indicate otherwise”.[30]As is generally the case, the development plan is not a single document. It is agreed by the parties that the development plan in the present case is the same as it was in the Bleep case, namely:• The London Plan 2016• The Ealing Core Strategy (2012), and• Ealing’s “Development Management” document (2013).[31]The Supplementary Planning Guidance (“SPG”) documents associated with the London Plan 2016 are not part of the development plan, but may be a material consideration for decision making. An important supplementary planning document at the valuation date was the Old Oak and Park Royal Opportunity Area Planning Framework 2015 (“OAPF”). Paragraph 216 of the 2012 National Planning Policy Framework (“NPPF”) indicates that we may also give weight, unless material considerations indicate otherwise, to relevant policies in emerging plans depending on the stage of preparation, the extent to which there are unresolved objections to relevant policies, and the degree of consistency of the policies with the NPPF. Emerging policy documents at the valuation date were the draft London Plan 2017, and the Old Oak and Park Royal Development Corporation’s Draft Local Plan (“Draft OPDC Plan”).[32]Most of those documents post-date the launch date; all were formulated at a time when the prospect of HS2 was in the public domain, even before the launch date. For the most part, nevertheless, they remain in existence in the cancelled scheme world and cannot be disregarded. However, just a few are about the transport superhub and are agreed by the parties to have been part of the scheme itself (meaning, as we saw above, that they do not have a function independent of the scheme). They are:• The Old Oak Common “place” identified in the OAPF.• Similarly, Policy P1C1 of the emerging Draft OPDC Plan which proposed the Oak Common Station Cluster.• Policy P1 of the Draft OPDC Plan, which set out a ‘vision’ for Old Oak South around the Station Cluster, including a new commercial hub with a range of tall buildings delivering employment spaces over or adjacent to the station, together with new town centre uses and new residential uses on the upper floors.[33]So far, then, the planning landscape looks much the same as it was in Bleep, save that the Draft OPDC Plan was further advanced in Bleep than it was at the valuation date in the present case. And just like the site in Bleep, the reference land at the valuation date was Strategic Industrial Land (“SIL”), as were the immediate neighbouring sites to the north and south. We explained in Bleep (at paragraphs 33 to 36) that SIL attracts strong protection in the development plan, and that residential development is essentially incompatible with SIL. The CAAD scheme is therefore contrary to the development plan, and planning permission would have been refused on the valuation date, in the cancelled scheme world, unless material considerations indicated otherwise. The first issue we have to decide is whether material considerations indicated otherwise at that date in that world. If they did, then permission for residential development could in principle have been possible, but that does not mean that permission would inevitably have been granted – that would depend on the answer to further questions about design and location.[34]Accordingly we consider next whether planning permission could in principle have been granted for residential development on the reference land, despite its SIL designation. We conclude that in principle it could; we then go on to consider whether on the balance of probabilities it would have been granted in light of a number of features which the appellant says make that unlikely. In each section we take first the respondent’s case in favour of the grant of a CAAD, and then the appellant’s reasons for opposing that case. The principle of residential development

SIL, opportunity areas and de-designation

[35]Policy 2.17B of the London Plan 2016 says this about planning permission for development on sites designated as SIL: “Development proposals in SILs should be refused unless: a) they fall within broad industrial type activities within para 2.79; b) they are part of a strategically co-ordinated process of SIL consolidation through an opportunity area planning framework or borough development plan document; c) the proposal is for employment workspace to meet identified needs for small and medium sized enterprises (SMEs) or new emerging industrial sectors; or d) the proposal is for small scale ‘walk to’ services for industrial occupiers such as workplace creches or cafes”. (our emphasis)

“Development proposals in SILs should be refused unless:

[36]None of those exceptions applies to the respondent’s proposed residential development in the present case. It is agreed, therefore, that residential development on the reference land is contrary to the provisions of the development plan. Fundamental to our determination is the principle that it must be made in accordance with the development plan unless material considerations indicate otherwise (section 38(6) of the Planning and Compulsory Purchase Act 2004). The respondents in Bleep faced a similar problem because the reference land in that case was also SIL, and there was no proposal for it to be de-designated. No material considerations indicated that development should be allowed contrary to the development plan and so the respondents were not able to show that residential development could have been permitted on their site.[37]However, unlike the land in Bleep, the reference land was at the valuation date going to be de-designated, so that it would no longer be SIL. This came about as follows.[38]The reference land used to be within the Park Royal Opportunity Area designated by the London Plan in 2004. However, that area has now been split into two, the Park Royal Opportunity Area and the Old Oak Common Opportunity Area. The OAPF proposed that SIL be consolidated in Park Royal (to the west), and that SIL in Old Oak Common be de-designated and be the subject of residential-led development. Diagrams in the OAPF illustrated the new split, and indicated that the reference land would be suitable for high-density development. The actual de-designation process was to take place later, following the next iteration of the local plan and an Industrial Land Review (“ILR”).[39]That ILR has now been carried out; it confirmed the importance of SIL and the continuing demand for it but concluded that in light of HS2 and of the new transport super-hub it was not realistic to retain SIL in the Old Oak Common Opportunity Area and that de-designation should proceed. The Draft OPDC Plan confirms that policy. That plan is of course emerging rather than adopted policy; the weight to be given to it depends upon a number of factors including whether at the valuation date there remained unresolved objections to it, but as both planning experts confirmed the remaining objections at the valuation date were in favour of more, not less, residential development.[40]The London Plan 2016 at paragraph 2.58 said this:
“Opportunity areas are the capital’s major reservoir of brownfield land with significant capacity to accommodate new housing, commercial and other development linked to existing or potential improvements to public transport accessibility.”

“Opportunity areas are the capital’s major reservoir of brownfield land with significant capacity to accommodate new housing, commercial and other development linked to existing or potential improveme

[41]Annex 1 to the plan sets out expectations for the provision of new homes and jobs in opportunity areas to 2013; for Old Oak Common there is an expectation of 55,000 jobs and 24,000 new homes, focused on:
“a new strategic public transport infrastructure hub at Old Oak Common on the HS2 line between London and Birmingham and beyond with an interchange with Crossrail, other national main lines and the London Overground. This should include a new branch of Crossrail 1 … Public transport accessibility and availability of amenity space should support high density development which could include a cluster of tall buildings around the interchange. Wormwood Scrubs would provide a major amenity to support this scale of development and improved access to the Scrubs is essential to deliver sustainable residential communities.”

“a new strategic public transport infrastructure hub at Old Oak Common on the HS2 line between London and Birmingham and beyond with an interchange with Crossrail, other national main lines and the Lo

[42]Crossrail 1 is of course the Elizabeth Line. So we can see that at the valuation date the reference land was poised for de-designation and future residential-led development, enabled by the new rail links provided by HS2 and by Crossrail, and supported by improved access to public open space.[43]The respondent’s case is that the imminent de-designation of the reference land is a material consideration indicating that permission could have been granted for residential development in the form of the CAAD scheme. The appellant’s argument is that the plan for the Old Oak Common opportunity area at Annex 1 to the London Plan was so heavily reliant on the scheme that large parts of it should be disregarded, and that the plan for de-designation of SIL in Old Oak Common was likewise so reliant on the scheme that it would have to be re-considered at the valuation date. The process of reconsideration would take some years. As a result the policies that pointed to de-designation of SIL and to new residential development on and around the reference land should be given limited weight, and therefore planning permission would not have been granted for residential development of this SIL land.

The respondent’s arguments

[44]Expert evidence on planning was given for the respondent by Ms Jessica Wilson MSc MRTPI of Newsteer Real Estate Advisers. She described the planning policy context and the proposed de-designation of SIL, and explained her opinion that the cancellation of the scheme would not change the material considerations indicating that high density residential development would be permitted on the site. She stressed the transport developments, particularly Crossrail, that would facilitate that development.[45]Ms Clutten argued that planning policy has to be taken as it stood at the valuation date. The cancellation assumption does not require it to be assumed that all the consequences of the scheme did not happen (paragraph 62 of the Supreme Court’s decision in Curzon Park). The designation of Old Oak Common as an opportunity area was not dependent on the scheme; it forms part of the capital’s “reservoir of brownfield sites” in any event (see paragraph 40 above). Opportunity areas were expected to make significant contributions to London’s housing need, which grew substantially between the 2011 and 2016 iterations of the London Plan. The respondent’s position was that the wording of Annex 1 stands save for the deletion of references to the scheme itself – so that, importantly, references to enhanced transport links due to Crossrail remain, as do the aspirations for thousands of new homes and jobs. The proposed de-designation remained at an advanced stage of planning. New high-density development, for example at North Acton, was already taking place by the valuation date; the undoubtedly huge need for new homes in London remained so great that even if in the cancelled scheme world it was not possible to achieve the numbers forecast in Annex 1, in any event SIL in Old Oak Common would have to be de-designated.

The appellant’s arguments about material considerations

[46]Expert evidence on planning was given for the appellant by Mr Jeremy Castle MRICS of Deloitte LLP. In his report he identified planning policies that are dependent on the scheme and fall to be disregarded: in his opinion they comprise not only those on which the parties are agreed but also the “main principles” of Annex 1 of the London Plan 2016. Furthermore he took the view that many of the remaining policies, whilst not actually part of the scheme, are reliant upon it. Those policies would have to be reconsidered in the cancelled scheme world, as a result of the “fog” of uncertainty cast by the cancellation of the scheme (referring to the Tribunal’s decision in Leech Homes (paragraph 26 above)), and so would be given only limited weight at the valuation date.[47]Mr Castle argued that the cancellation of the scheme “has the effect of ripping the heart out of the vision for the Old Oak Common Opportunity Area”. The main principles of the vision for Old Oak Common in Annex 1 “should be disregarded.” Indeed, in cross-examination he provided in effect an edited version of the Annex, removing large sections of text on the basis that the aspirations set out there cannot survive the cancellation of the scheme. Instead, he thought that the requirement of the National Planning Policy Framework (paragraph 21) to support existing business sectors, the specific policies protecting SIL, and the high demand for business and industrial uses in the industrial estate where the reference land is situated all pointed to its retention as SIL and to refusal of planning permission for residential development.[48]Mr Tait KC stressed that his argument is not that planning policies are any different in the cancelled scheme world. In accordance with the Supreme Court’s guidance, anything that is not disregarded is unchanged. But undoubtedly in the cancelled scheme world those policies would not work in the form they took in the real world; employment targets, for example, that could be met by new jobs in the transport superhub, are unattainable in the cancelled scheme world without that concentrated new development. So the policies remain the same but in the cancelled scheme world they carry far less weight than they would in the real world.

Residential development in principle: conclusion

[49]We repeat that we are looking here at the question whether in principle residential development could have been permitted on the reference land, despite the conflict with the development plan that arises from its designation as SIL. We leave aside for now the location and design considerations which go to the questions whether in fact permission for residential development would have been granted, whether for the respondent’s preferred development or for a less tall and dense version of it.[50]We have set out the parties’ arguments on this point of principle briefly, and have dealt very briefly indeed with what the experts said about it because we think the issue is one of pure law and is relatively simple. It is a very technical issue, determined by the words of the statute and the Supreme Court’s interpretation of it. It can be summarised thus: what is the Tribunal to make of features of the real world at the valuation date which, absent the scheme, would still be in existence but in a different form?[51]Put like that, the answer is clear from what the Supreme Court has said. We know the answer when the feature in question is a building, which is in existence at the valuation date but would not have been built in the cancelled scheme world. The very tall buildings at Oaklands are an obvious example, and they remain in existence in the cancelled scheme world because the statute has not told us to disregard them. The same must be the case for buildings that might still have been built if the scheme had been cancelled but could not have taken the same form – they might have been smaller or had a different mix of uses. We have to take them as they are. The same applies to, for example, planning permissions. It seems to us that the same must be true of policies.[52]When it comes to planning policies there is agreement that some of them are part of the scheme itself and have to be disregarded: see paragraph 32 above. So far as Annex 1 of the London Plan 2016 is concerned, the parties are not agreed. For the appellant it is argued that large sections of it are to be disregarded, because they are reliant on the scheme, while Ms Clutten for the respondent would delete no more than the actual references to HS2. We have to agree with Ms Clutten; the assumptions in section 14(5) are known to be narrow ones and therefore we have to take a minimal approach to deletion. We can delete the actual references to the scheme but nothing else. We cannot edit phrases or ideas. Nor can we edit numbers.[53]This is counterintuitive. Absent the scheme, Annex 1 would have been very different indeed. Absent the scheme, plans for de-designation would either not have been made or would have been made very differently. If we were supposed to be constructing a realistic cancelled scheme world then Mr Tait KC and Mr Castle would be absolutely right; policies would have to be reconsidered to fit the cancelled scheme world. But that is not what we have to do. Absent the scheme certain buildings would not have been built; but we cannot edit them out of the world. Absent the scheme, certain buildings and planning permissions would have taken a different form. But we have to take them as they are. The same is the case with planning policies.[54]The cancelled scheme world is not meant to be internally consistent; it is the real world, adjusted only by the disregards set out in section 14(5) and no more. Policies that have a function independent of the scheme remain as they are save for the deletion of the words that refer to the scheme. We cannot edit them by diluting, for example, housing numbers or the extent of the expectation of new jobs.[55]That being the case it is equally illegitimate to give policies limited weight because in the cancelled scheme world they would have to be reconsidered. That is tantamount to editing the policies. Giving limited weight to the need to build 24,000 homes has the same effect as deciding that in the cancelled scheme world that number would be different (and speculating about what it would be). Policies that are taken at face value cannot be given diminished weight in light of the cancellation of the scheme. To afford them less weight would be logical, but the cancelled scheme world is not logical; we repeat, it is exactly like the real world but for the very narrow assumptions in section 14(5).[56]Any other approach requires an exercise of construction which is not allowed. Just as we cannot edit Annex 1 by deciding how many jobs and new homes could realistically be expected in the cancelled scheme world, so we cannot make a judgment about how much weight would be given to Annex 1 or to the de-designation assumption in the cancelled scheme world. Nor can we construct a process of reconsidering policies, nor can we make a judgment about how long that process would take.[57]The policy of de-designation of SIL in Old Oak Common is not – the parties agree – disregarded as being part of the scheme. It has an independent function. Therefore we have to take it at face value as the respondent argues. It is a material consideration which indicates that residential development could in principle have been permitted at the valuation date, just as it could at that date in the real world. That being the case we do not need to decide the respondent’s alternative argument that planning permission would have been granted for the CAAD scheme within 30 months of the valuation date, once the Draft OPDC Plan was adopted.

The CAAD scheme and alternative schemes

[58]We turn now to the detail of the CAAD scheme and of the two alternatives to which we referred at paragraph 4 above, because we are now have to consider whether a reasonable planning authority would have granted permission for any of them on the valuation date in light of their location and design.[59]Looking first at the CAAD scheme, the block plan below shows the proposed buildings, grouped into blocks A, B, C and D. Blocks C and D form a single courtyard, so that the development is described as arranged into “three perimeter blocks”. Each building has been labelled with a number representing its height in storeys. A1 is the highest at 24 storeys, C1 the next highest with 20 storeys and D3 the third highest at 16 storeys. The remainder are up to 12 storeys high. The scheme would provide 722 dwellings and 993 sqm of commercial floor space, with associated access, amenity space, public open space (described as a “linear park”) and parking for vehicles and bicycles.[60]The picture underneath the block plan is extracted from the design statement for the CAAD scheme that was submitted to the Ealing BC (in line with Policy 7.7 of the London Plan which requires a design statement to be submitted with planning applications for tall buildings, particularly on sites not identified for tall buildings in the local plan). It shows aerial massing viewed from the north west, looking towards North Acton.[61]If we find that planning permission could not reasonably have been expected to be granted for the CAAD scheme at the valuation date, or later, we are required to determine whether an alternative form of development would meet that test. We have said earlier that the appellant’s proposed alternative scheme for commercial development is agreed to be available to us if we find that no form of residential development would have been appropriate alternative development.[62]If we should find that residential development was appropriate but that tall buildings would not have been permitted, the respondent proposed an alternative scheme (“the respondent’s alternative scheme”) which would simply limit the height of all buildings to 12 storeys or less. So building A1 would be reduced from 24 to 12 storeys, building C1 from 20 storeys to 12 storeys and building D3 from 16 storeys to 12 storeys.[63]Mr Peter Newton BAS MRIBA gave evidence on design for the appellant. In his expert report he stated that in the scheme cancelled world building heights on the reference land should be generally 10-12 storeys along Victoria Road, reducing to six to eight storeys near the sensitive eastern boundary and the residential neighbourhood at Wells House Road. In cross-examination he agreed that if A1 was reduced from 24 to 12 storeys and C1 from 20 to 10 storeys, along with reductions in height on the eastern edge from 16 to eight storeys for D1 and from 11 to eight storeys for C2, there would be no height-based reason for refusal of planning permission. Ms Clutten asked us to consider this as a second alternative scheme which would deliver around 465 dwellings; we refer to it below as “Mr Newton’s reduced height suggestion”. It is not proposed by the appellant as appropriate alternative development, which in the appellant’s view it is not because of noise from the Quattro site and because of its distance from open space and schools.[64]In the discussion that follows we look at the design of the CAAD scheme (and equally of the two alternatives) and at the criticisms levelled at it by the appellant, first in relation to noise and then in relation to open space and schools, in order to determine whether those issues would prevent the CAAD scheme or either of the alternatives being granted planning permission at the valuation date. There is no issue between the parties about other aspects of sustainability and amenity, such as daylight and sunlight, affordable housing provision, refuse, servicing and deliveries, and social infrastructure other than schools. Would permission have been granted for the CAAD scheme? (1). Noise and amenity (proximity to Quattro site)[65]At paragraph 8 above we explained that immediately to the south of the reference land is the Quattro site. It is common ground, and obvious, that this is a large and very noisy site and therefore a “bad neighbour”. In the real world it has been acquired by the Secretary of State, but once HS2 is completed it will revert to waste management use, and will therefore probably remain designated as SIL. Neighbouring land probably will not; and when it returns, Quattro will be subject to new requirements to put in place noise mitigation measures so as to protect what are likely to be new residential neighbours (local plan policy NA.19 in the Draft OPDC Plan). But in the cancelled scheme world at the valuation date Quattro remains in place and will continue as before, with no new mitigation requirements.[66]The appellant’s case is that while the proximity of Quattro need not rule out residential development altogether on the reference land, the noise mitigation measures proposed by the respondent are not adequate. The appellant says that noise levels and living conditions inside the blocks nearest to the boundary with Quattro, and in the outdoor recreation space, would be so unacceptable that the CAAD scheme (and the two alternatives) could not be granted planning permission.[67]The respondent’s case is that residential development in close proximity to noisy sites is inevitable in London, and that other developments in similar situations indicate that the mitigation measures proposed would be acceptable and have been used to good effect elsewhere, even in luxury accommodation.[68]We set out below the relevant planning policies, and then summarise the parties’ evidence and arguments and explain our conclusion.

The relevant planning policies

[69]There is no dispute as to the relevant planning policies. The starting point is the London Plan, Policies 7.15B and 2.17C. Policy 7.15B applies to planning decisions and requires that development proposals seek to manage noise by:
“a. avoiding significant adverse noise effects on health and quality of life as a result of new development; b. mitigating and minimising existing and potential impacts of noise on, from, within, as a result of, or in the vicinity of new development without placing unreasonable restrictions on development or adding unduly to the costs and administrative burdens on existing businesses; … d. separating new noise sensitive development from major noise sources (such as road, rail, air transport and some types of industrial development) through the use of distance, screening or internal layout – in preference to sole reliance on sound insulation; e. where it is not possible to achieve separation of noise sensitive development and noise sources, without undue impact on other sustainable development objectives, then any potential adverse effects should be controlled and mitigated through the application of good acoustic design principles; …”
[70]Policy 2.17C reads as follows:

“Development proposals within or adjacent to SILs should not compromise the integrity or effectiveness of these locations in accommodating industrial type activities.”

[71]The Ealing Development Management document (2013) at Policy 7A on amenity says that sensitive uses will not be permitted where these would achieve acceptable levels of amenity only by substantially sealing off residents from their surrounding environment. It goes on to state (at D) that development that is sensitive to operational emissions of a particular type must avoid locating in areas in which there are established concentrations of such emissions that cannot be properly addressed through the design process.[72]In terms of emerging policy, the Draft OPDC Plan policy EU5 on Noise and Vibration states that development proposals will be supported where they:
“a) apply the “agent of change” principles to attenuation of noise and vibration; b) submit a noise and vibration assessment to … i) demonstrate compliance with relevant and current building standards; and ii) identify unacceptable impacts and secure the appropriate delivery of mitigation measures; c) appropriately reduce exposure to existing noise generators such as waste sites…whilst ensuring the continued effective operation of those uses …” b) submit a noise and vibration assessment to … i) demonstrate compliance with relevant and current building standards; and ii) identify unacceptable impacts and secure the appropriate delivery of mitigation measures; c) appropriately reduce exposure to existing noise generators such as waste sites…whilst ensuring the continued effective operation of those uses …”
[73]The “agent of change” principle is that any new development must itself manage the impact of neighbouring land uses; a development next to a noisy site, for example, must provide its own noise mitigation measures. The supporting text to Policy EU5 states that the Development Corporation will only grant planning permission for development sensitive to noise and vibration in locations that experience noise and vibration pollution if appropriate attenuation measures are taken. A list of possible measures includes insulation, buffering, provision of winter gardens and balconies, and location of less sensitive uses of buildings adjacent to rail and industrial sites. “Winter gardens” are, essentially, internal areas with glass walls or very large windows; typically they are corridors allowing residents to circulate, sometimes with seating and communal space. They are not gardens in any literal sense although some may contain indoor plants.[74]The London Plan 2016 Housing SPG (“the Housing SPG”) provides at standard 32 that: “All homes should provide for direct sunlight to enter at least one habitable room for part of the day. Living areas and kitchen dining spaces should preferably receive direct sunlight."

The respondent’s case on noise and amenity

[75]The plan at paragraph 60 above indicates the position of the reference land as a whole, immediately to the north of the Quattro site, and shows that block D is very close to the boundary. The eastern elevation of building D1 is only 1.5m from the Quattro boundary, the southern elevation of building D2 is within 10m of the boundary and the southern elevation of building D3 within 5m. Noise is obviously an issue, as is air quality. However, Ms Clutten for the respondent submitted that the policies set out above were clearly contemplating that there would be development in proximity to “bad neighbours”, and that the relationship between the two could be managed. The respondent’s case is essentially that the mitigation proposed will work.[76]Mr Peter Griffiths RIBA, ARB gave evidence for the respondent on design matters. He and Ms Wilson both acknowledged the proximity of the Quattro site; they explained that a report dated 27 March 2023 was submitted by Cass Allen, architectural and environmental consultants, with the CAAD application to Ealing BC. The report referenced World Health Organisation guidelines which indicate that noise levels of around 35 dB indoors and 55 dB outdoors are acceptable. Cass Allen of course could not at that date measure actual noise emanating from the Quattro site, so noise levels were modelled using those measured in 2014 from the boundary of a site with similar activities. This indicated that noise levels at the worst case location on the boundary would be around 67 dB – a level which could be reduced to compliant indoor levels using an acoustically upgraded façade and ventilations systems. Cass Allen took the view that the Quattro site would have a relatively low impact on amenity in terms both of noise and of air quality.[77]Both experts explained that the design of blocks D1 to D3 provided for less sensitive uses to be located closest to the Quattro site, including bike storage and circulation space. The primary orientation of apartments would face away from Quattro. A shared winter garden gallery space on the upper floors of blocks D1 and D2, where they face the Quattro site, and on the first floor of block D3, would provide a buffer; mitigation measures include double glazing, and mechanical ventilation and heat recovery (MVHR) would be installed so as to avoid the need for open windows. The CAAD scheme also included a proposed acoustic barrier in the form of a 4.5 m high brick wall along the southern elevation at ground floor level, and a soft landscaping wildlife buffer. Furthermore, the ground level of the reference land is 3.5 m higher than the Quattro site, so there is vertical separation.[78]Ms Wilson confirmed that the use of acoustic glazing and winter gardens is commonplace in London developments, and is usually dealt with by conditions once the detailed design stage is reached. She made reference to developments at Fulham Riverside, adjacent to Cemex cement works, Coronation Square adjacent to Bywaters Waste Management site at Leyton, 40 Noman Road, Greenwich adjacent to a skip site, Greenwich Millennium Village adjacent to a concrete site, and to Vermilion, Rathbone Market in Canning Town next to a major road.[79]At the hearing Ms Clutten took on board the evidence given for the appellant, which referred to a technical note on noise and air quality prepared by environmental consultants RWDI in response to the Cass Allen report. It concluded that the Cass Allen report had significantly underestimated the noise rating levels at the nearest façades of the residential development and in the shared amenity spaces within the development site, and said that industrial noise would be “dominant” at the site. It suggested daytime levels of 75 dB and 70 dB respectively at the two amenity areas, and night time levels of 64 dB and 44dB respectively. We were provided with a helpful explanatory note on what equivalent noise levels might sound like. 70 dB is said to be as loud as a domestic vacuum cleaner at three meters distance, 60 dB as loud as a business office and 55 dB as loud as normal conversation at one metre distance. The dB scale is logarithmic, so that a 10 dB increase is a 2-fold increase in loudness. Following redesign of the CAAD scheme (as presented to the local planning authority) to incorporate an acoustic barrier at the boundary of the site against Quattro, the modelled daytime noise level reduced to 69 dB at the two affected amenity areas. RWDI found that the reference land would suffer ‘significant adverse impacts’ from the industrial uses on the Quattro site, and that it was highly unlikely these would be removed by further perimeter screening of the site. As to internal noise, the RWDI report observed that mitigation could be achieved, but only by sealing the residential accommodation, contrary to Policy 7A of the Ealing Development Management document (paragraph 71 above).[80]In their response to the RWDI technical note, Cass Allen did not seek to refute the findings, in light of the impossibility of obtaining actual evidence of noise levels from the Quattro site, and accepted that the reference land would be “dominated by industrial noise”. Nevertheless, Cass Allen maintained that with suitable mitigation acceptable noise levels could be achieved, as they had been on other sites. They pointed out that they were not suggesting that the flats should be actually “sealed”; windows could be opened where necessary for example to deal with the effects of burnt food or cleaning products.[81]Ms Clutten pointed out that the acoustic experts for both parties were in agreement that acceptable internal noise conditions could be achieved by use of very high quality acoustic glazing and the use of winter gardens. As to the noise levels in external amenity areas, Ms Clutten submitted that the reduction in noise levels of between 1dB and 6dB resulting from the acoustic barrier is significant, and argued that if this is the lowest practicable level achievable, then that should not prohibit development. Moreover, the residents would not be confined to the areas where these measurements were modelled, but would have access to the whole of the amenity area within the development.[82]Ms Clutten acknowledged BS8233 “Guidance on sound insulation and noise reduction for buildings” where the design criteria for external noise state that a level of 50 dB is desirable, with an upper guideline value of 55dBacceptable in noisier environments. These levels are qualified by the statement:
“However, it is also recognised that these guideline values are not achievable in all circumstances where development might be desirable. In higher noise areas… a compromise between elevated noise levels and other factors, such as the convenience of living in these locations or making efficient use of land resources to ensure development needs can be met, might be warranted. In such a situation, development should be designed to achieve the lowest practicable.”
[83]In conclusion, Ms Clutten submitted that we have to consider not the level of noise, but whether the mitigation measures, in particular MVHR and winter gardens, are unacceptable because of the internal amenity conditions they create. She referred to Ms Wilson’s evidence about other, similar developments and to Mr Castle’s evidence about the development at Battersea Power Station (see paragraph 86 below). Ms Clutten submitted that no reasonable planning authority would refuse planning permission for over 700 much-needed homes on the basis that mitigation to achieve acceptable internal noise levels would be required for about 25 of those units.

The appellant’s case on noise and amenity

[84]Mr Newton expressed concern about the proximity of the D blocks to the boundary with Quattro. He pointed out that there would be “family duplexes” on both ground and first-floor level along the south-facing boundaries of Blocks D1 and D2; their living spaces would face north and so have no sunlight. The upper dwellings in the southwest corner of the 16-storey Block D3 have no noise mitigation, with both facades and outdoor amenity space facing directly on to the Quattro site, only 5m from the boundary. He explained the findings of the RWDI report and expressed the view that living conditions, even with the proposed mitigation measures, would be unacceptable in the D blocks.[85]Mr Newton discussed the comparable developments referenced by the respondent (paragraph 78 above) and commented that of the six, only two involve operations similar to Quattro’s. Of those, on the Fulham Riverside site, the nearest residential accommodation is 24m from the boundary, with the lowest residential accommodation on the fourth floor. The Greenwich Millennium Village features 11-storey glazed acoustic screens. Both developments did far better, in his view, than the respondent’s proposals in terms of locating sensitive areas away from noise sources.[86]Mr Castle expressed concern about the effect of residential development on the operations at Quattro; and he made reference to London Plan Policy 7.14 which seeks to minimise exposure to poor air quality. He pointed out that the RWDI report expressed concern about dust, air quality and odour, and stated that further modelling was required to understand the full impact of Quattro on the air quality at the reference land. In cross-examination he was asked about his role as planning director for the residential development at Nine Elms adjacent to Battersea Power Station. He agreed that mitigation measures were put in place there to address noise and air quality, but he stressed that the mitigation was extensive, and that residential accommodation was much further away from the cement works than are the D blocks in the CAAD scheme.[87]In closing, Mr Tait KC started from the common ground between the experts: that Quattro is a bad neighbour use, that the CAAD scheme is hard on the edge of it, being at only 1.5 metres distance at its closest point and up to 10m at best, and that the reference land would be dominated by noise in the cancelled scheme world. To achieve an acceptable situation inside the residential units on that boundary the openable windows would have to stay shut. The proposed winter gardens would not be an extension of internal amenity space but enclosed corridors along which neighbours could walk so, to preserve privacy, the glazing to those corridors would need to be obscure. The higher level balconies on building D3 would have no noise mitigation unless further winter gardens were provided, and the external amenity areas would suffer significant adverse noise effects.[88]Mr Tait KC pointed out that the starting point for the CAAD design submitted to the Ealing BC had been an erroneous assumption that Quattro would have to mitigate its own noise; that was not correct, because that mitigation requirement belonged in the scheme world and would come into effect once Quattro returned to its site (see paragraph 65 above). In the past Quattro had provided an acoustic barrier on its eastern boundary, with a cantilever canopy over into the site, as mitigation for the benefit of the houses at Wells House Road – which are anyway at 60m distance. In the CAAD scheme the buildings would loom over the Quattro site; and although some of the visualisations provided by the respondent depicted the acoustic barrier with a canopy which would enhance its effect, that barrier would be sited within the reference land and so there would be no space for a canopy, and no prospect of a canopy extending over the Quattro site.[89]Mr Tait KC added that under the CAAD scheme there was therefore a high risk of complaint by residents, which would have a knock-on effect on the operation of Quattro, contrary to London Plan policy 2.17 policy for SILs.

Discussion and conclusion on noise and amenity

[90]In our view the RWDI report is fatal to residential development on the reference land. It demonstrates that external noise cannot come close to acceptable levels; 69 dB is better than 70, but too far away from 55 dB. And while internal mitigation might well take noise levels down to an acceptable 35dB (see paragraph 79 above) – that would come at an unpalatably high price. The residents in Blocks D1, D2 and D3 will in effect be sealed in behind winter gardens and unable to open their windows, contrary to local policy. Most of the block D flats will have their living and dining spaces on the north side of their homes, again contrary to policy, but some will have living space facing south. The acoustic barrier will shield the ground floor of the duplexes in blocks D1 and D2 but will cast constant shade over the “wildlife buffer”. The winter gardens will provide an acoustic shield, but either the residents will have no privacy through their south-facing windows or they will have obscured glass and no view out. We are also concerned that there is no evidence that air quality will be acceptable, outdoors or indoors.[91]We acknowledge that there are residential developments next to “bad neighbour” sites in London and no doubt elsewhere that involve similar mitigation, but the reference land is much closer to the bad neighbour than the other sites to which we were referred. Only two are next to similar sources of noise and emissions, and they appear to have more sophisticated mitigation in terms of the arrangement of the residential accommodation. We have to look at this particular site, with its particular orientation, in the light of the policies in this development plan. Circumstances and policies elsewhere may well differ.[92]Furthermore the CAAD scheme and the alternatives put the Quattro site itself at risk of complaints from residents, contrary to the London Plan Policy 2.17, as a result of the proximity of residential development to the boundary.[93]We find the arguments of the appellant compelling and conclude that the mitigation proposed would not suffice to deal with the problems of noise arising from the existing Quattro operations, either indoors or outdoors. We find that the reference land is unsuitable for residential development in the form proposed by the CAAD scheme, or by either of the alternative schemes (both of which would have buildings in the same close proximity to the Quattro operations as does the CAAD scheme).[94]No alternatives have been presented to us that address these difficulties. In the real world there would be an iterative process in which the respondent would have the opportunity to present new designs, but that is not possible in the litigation process (as the Tribunal (the Deputy President, Martin Rodger KC and Mr Peter McCrea OBE FRICS FCIArb) pointed out in Quintain City Park Gate Birmingham Limited v Secretary of State for Transport [2025] UKUT 312 (LC)). The consequence is that a CAAD cannot be granted for any of the residential schemes presented to us. It is important to appreciate that the appellant does not argue that residential development is impossible on the reference land; it may well have hope value for a different scheme.[95]Whilst that is, in our view, conclusive we now turn to two other issues on which the appellant relied. (2). Open space[96]The appellant criticises the CAAD scheme both for its provision of open space, especially children’s play space, within the reference land and for its distance from public open space and green space elsewhere.[97]Mr Newton explained what he regarded as the problems. The CAAD scheme includes, within the reference land, a total of 2,711 sq m of play space for children under 10. Whether that is sufficient of course depends upon the number of children expected to live in the development; the GLA Population Yield Calculator predicts 360, and according to the SPG “Providing for Children and Young People’s Play and Informal Recreation”, which was supplemental to the London Plan 2008, (“the 2008 SPG”) that results in a play space requirement of 3,600 sq m. There is therefore a considerable shortfall. Additional space could not be provided on the rooftops, because they would be needed for solar power provision to comply with sustainability requirements.[98]As to open space generally within the development, Mr Newton explained that Policy 7D of Ealing’s Development Management document requires new developments to make an appropriate contribution towards publicly accessible open space; it requires 15 sq m per flat, which for the CAAD scheme would mean 10,830 sq m. The CAAD scheme is agreed to include 5,000 sq m of community open space, leaving a shortfall of 5,000 sq m.[99]Mr Newton went on to say that off-site provision is similarly inadequate. In the Draft OPDC Plan the supportingtext to Policy P7, on North Acton and Acton Wells, states (paragraph NA.13) that North Acton and Acton Wells currently have limited access to publicly accessible open space, and that access to nearby open spaces at North Acton Playing Fields and Wormwood Scrubs are obstructed by the road and rail network. Wormwood Scrubs is 1.4 km from the reference land; in the real world, access to Wormwood Scrubs will get easier because of a pedestrian crossing at Old Oak Common Lane Station, but in the cancelled scheme world that station will not be built. To the north Wesley Playing Fields are a 1 km walk away; the 2008 SPG regards 800m as the maximum acceptable walking distance. North Acton Playing Fields are 1.26 km away.[100].None of the policies and figures to which Mr Newton referred was disputed by the respondent’s experts, and Ms Wilson agreed that the Ealing open space standards were not out of date. Mr Griffiths in his report made reference to a new, local open space in the area of the reference land, but in fact that space was part of the scheme (being the civic square at the new HS2 Hub) and would not be delivered in the cancelled scheme world.[101].Ms Clutten submitted that it was common ground that none of the London Plan policies are prescriptive as to the provision of or proximity to open space. She relied on Mr Griffiths’ evidence that the CAAD scheme had been designed so that it would interact well with any future development of the land to the north of the reference land, which he would expect to come forward for development and deliver a substantial proportion of open space - as envisaged by the Draft OPDC Plan. This would not rely on the civic square associated with HS2 so would apply in the cancelled scheme world.[102].Mr Tait KC submitted that in the cancelled scheme world the reference land is in the wrong location for residential development because it is in an area which is agreed to have poor accessibility to open space.[103].We can only agree with Mr Tait that the acknowledged poor access to open space is a major difficulty. That might not be enough on its own to prevent the grant of a CAAD; the reasonable planning authority might foresee new open spaces being developed, or improved access to local parks, and might decide that the short-term shortage could be managed. We have already decided that the problems of noise and amenity would prevent the grant of a CAAD for the CAAD scheme or either of the alternatives; if we are wrong about that, the additional serious lack of play space, public open space and access to parks, would prevent the grant of a CAAD. (3). Schools[104].The availability and proximity of schools, in particular primary schools, is another aspect of sustainable social development. The closest primary school to the reference land is John Perryn School, shown on the location plan provided earlier in this decision. Significantly it is on the other side of the railway. In the scheme world, the bridge over the railway at Old Oak Common Lane Station (dependent upon the scheme) will provide a shorter and more attractive route to the school than either of the two possible walking routes in the cancelled scheme world; precise distances are not agreed, but the shorter route is about 1.4 km and the longer about 1.6 km (1 mile). The shorter route involves steep stairs up to a bridge over the railway and could not be managed with a buggy or a bicycle. We walked both routes; the longer route would take most adults about 20 minutes, but would of course take longer with small children. For the most part it runs alongside the A40; there is inevitably heavy traffic on the road, but there is a broad pavement, and a cycle lane separating pedestrians from vehicles.[105].The London Plan 2016 Social Infrastructure SPG (“the Social Infrastructure SPG”) includes a table of minimum reasonable accessibility standards for the creation of walkable lifetime neighbourhoods, in which 800m is the longest distance shown for a primary school in an urban city at high density.[106].Mr Griffiths, for the respondent, expressed the view that the 20 minute walk to school along safe, well-lit roads was acceptable, and pointed out that the A40 is already used by parents and children walking to the John Perryn School. Other schools are within a ten minute cycle ride. For the respondent, Mr Newton regarded the school route as unsatisfactory, although he agreed that there is no policy which prescribes a maximum distance from schools.[107].Ms Clutten submitted that although the walking distances to school from the reference land exceed slightly the preferred walking distances for planning new schools, they are reasonable and acceptable in supporting new development. Moreover, the school could be readily accessed from the reference land by bike, including cargo bikes used to transport young children. She submitted that the London Borough of Ealing was satisfied when they granted the CAAD, subject to a contribution of £600,0000 in respect of education.[108].Mr Tait KC submitted that the creation of lifetime walking neighbourhoods applies not only when planning new schools, but also when an existing area is being changed by the introduction of a residential use. In his submission the CAAD scheme on the reference land did not accord with the principles of a lifetime walkable neighbourhood in the cancelled scheme world.[109].As we said, we walked both routes. They are not ideal, although we agree with Ms Clutten that conditions are typical of an urban area. But importantly, the shorter route is not possible with buggies, and the longer route is twice the maximum specified in the Social Infrastructure SPG.[110].In our view the lack of easy access to a primary school is a further factor militating against the sustainability of the reference land for residential development.[111].We decided above that noise and air quality alone would rule out the CAAD scheme and the alternatives. If we are wrong about that, then the combination of noise, air quality, the lack of accessible open space and the long walk to a primary school would certainly do so.

Tall buildings and density

[112].The appellant argues that even if – contrary to its case – the problems with noise, open space and schools do not prevent the grant of planning permission for the CAAD scheme and the alternatives, the CAAD scheme itself could not be permitted because of the height of its buildings and because of the density of the residential development proposed. We have decided that a CAAD cannot be granted for the CAAD scheme or the alternatives so, strictly, height and density do not have to be considered, but we address them because a great deal of evidence, and of argument at the hearing, was taken up with these issues and it will be useful for the parties to have a decision about them.[113].It will be recalled that three of the blocks are very tall – 24, 30 and 26 storeys respectively. There were tall buildings nearby on the valuation date: Oaklands to the north near the new transport hub and the cluster of tall buildings near North Acton Station known as the Southern Gateway, of which the tallest stands at 44 storeys. It was the respondent’s case that the tall buildings in the CAAD scheme are appropriate to their setting and in light of planning policy, and that the density of the development would similarly be appropriate. The appellant disagreed.

Planning policies relevant to tall buildings

[114].At the valuation date existing policy on the location and design of tall buildings was set out in Policy 7.7 of the London Plan 2016 and Policy 7.7 of the Ealing Development Management document. Policy 7.7A of the London Plan requires tall buildings to be part of a plan-led approach, which identifies sensitive and inappropriate locations, and states that they should not have an unacceptably harmful impact on their surroundings. Policy 7.7.C sets out criteria that are reflected in all policies relating to tall buildings and so is worth setting out in full:
“Tall and large buildings should: a generally be limited to sites in the Central Activity Zone, opportunity areas, areas of intensification or town centres that have good access to public transport b only be considered in areas whose character would not be affected adversely by the scale, mass or bulk of a tall or large building c relate well to the form, proportion, composition, scale and character of surrounding buildings, urban grain and public realm (including landscape features), particularly at street level d individually or as a group, improve the legibility of an area, by emphasising a point of civic or visual significance where appropriate, and enhance the skyline and image of London e incorporate the highest standards of architecture and materials, including sustainable design and construction practices f have ground floor activities that provide a positive relationship to the surrounding streets g contribute to improving the permeability of the site and wider area, where possible h incorporate publicly accessible areas on the upper floors, where appropriate i make a significant contribution to local regeneration.” f have ground floor activities that provide a positive relationship to the surrounding streets g contribute to improving the permeability of the site and wider area, where possible h incorporate publicly accessible areas on the upper floors, where appropriate

i make a significant contribution to local regeneration.”

[115].Policy 7.7D and E concern the potential impact on surroundings and particularly on sensitive locations.[116].Policy 7.7 in the Ealing Development Management document deals with the location and design of tall and large buildings and is more prescriptive in that it only permits tall buildings in locations specified in the plan. It requires that they “make a positive and appropriate contribution to the local context and the broader area on which the impact”. The respondent acknowledged that the CAAD scheme is not in a location specified for tall buildings, but it was argued that since the policy was adopted before the opportunity area was designated, and when housing requirements were significantly lower, the weight to be afforded to it must be limited. Taking Policy 7.7 of the adopted Ealing document along with the OAPF the respondent says there is recognition that tall buildings may be acceptable in opportunity areas where they enhance legibility of the landscape, emphasise a point of civic or visual significance, create a moment of interest or otherwise contribute to a coherent place.[117].In terms of emerging policy, the Draft OPDC Plan includes Strategic Policy SP9 on the built environment which, at SP9(b), supports development that includes tall buildings “…in areas where there are high levels of existing or planned public transport accessibility” (“PTAL”). It is agreed that the existing PTAL rating of the reference land is good to very good, and the respondent submits that the principle of tall buildings on the reference land is consistent with this emerging policy.[118].Policy P7 of the Draft OPDC Plan sets out proposals for what North Acton and Acton Wells should deliver. Policy P7(n) concerns building heights and sets out how proposals should contribute to a variety of building heights that includes:
“i) tall buildings around North Acton Station, Old Oak Common Lane Station and key destinations along Old Oak High Street major town centre, North Acton neighbourhood town centre and other key routes that do not result in an overwhelming wall of development; iii) increased heights and massing adjacent to the A40 and railway lines to mitigate impacts on the public realm and residential amenity; and iv) generally lower heights adjacent to sensitive locations including existing residential neighbourhoods at Wells House Road and Midland Terrace…”

Tall buildings: the respondent’s case

[119].For the respondent it was argued that the CAAD scheme is consistent with policy, and that the reference land is suitable for accommodating tall buildings at the scale proposed in light of the character and appearance of the local area. It is in an opportunity area. Local policy envisages heights “generally” of 10-12 storeys along Victoria Road, not “exclusively”; the only element of the CAAD scheme along Victoria Road which exceeds 12 storeys is building A1, at 24 storeys, and the respondent submits that this therefore meets the policy requirement. Along the eastern edge of the reference land, adjacent to the railway, the only tall building is D3 at 16 storeys; Ms Clutten pointed out that the appellant did not allege any unacceptable impact on the sensitive residential properties at Wells House Road and Midland Terrace which would warrant refusal of planning permission. The physical context of the reference land included tall buildings existing in the area at the valuation date, in particular at North Acton. There were also planning permissions granted at North Acton before the valuation date, but not yet built out, which form part of the emerging character and context for assessing height. North Acton is a policy area designated for tall buildings, and the substantive impacts on the residential amenity of the tall buildings there have been regarded as acceptable.[120].Mr Griffiths explained that each of the three tall buildings in the CAAD scheme has a specific design function. Building A1 is closest to the tall buildings cluster in North Acton and signals the entry to the linear park within the CAAD scheme. Building C1 signals the entry to the linear park at the other end of the site. Building D3, which is adjacent to the railway line, provides a wayfinding function and moment of interest for those travelling along the railway network. He says that together the tall buildings in the CAAD scheme create a coherent sense of place and an identity, as well as mediating down from the buildings in North Acton to the lower rise buildings to the east and west. He provided the following visualisation to illustrate the effect of the CAAD scheme and its surroundings:[121].In closing, Ms Clutten argued that while the reference land was not a site that was allocated for tall buildings, it did not need to be. Provided that the CAAD scheme has an acceptable impact on the character and appearance of the area, and does not have unacceptable adverse impacts on the amenity of residential dwellings, then the provision of tall buildings as part of the mix of the built form of development on the reference land would be consistent with the London Plan read together with the OAPF and the draft local plan. The only conflict would be in respect of the Ealing Development Management document, which she said should attract limited weight.

Tall buildings: the appellant’s case

[122].The appellant’s experts disagreed with Mr Griffiths’ views about tall buildings, emphasising the absence of policy justification for them. Mr Newton pointed out that the OAPF reflects the London Plan policy to cluster tall buildings where they support the legibility of the landscape, and to focus them on stations and other key destinations such as significant commercial hubs. In his view, a 24-storey building on Victoria Road is not appropriate, in terms of its impact on its surroundings, even though the policy does not rule them out. Tall buildings are acceptable at designated locations in a plan-led system, but the reference land is not such a location. The tall buildings around North Acton are part of the Southern Gateway, and there is no policy for that area to expand northwards. Mr Castle agreed, and emphasised that the tall buildings of the CAAD scheme would not relate well to their surroundings.[123].Mr Tait KC suggested to Mr Griffiths, in cross-examination, that the design statement accompanying the CAAD scheme assumed, wrongly, that the reference land fell into the Old Oak Common Lane Station Cluster in the Draft OPDC Plan. That cluster would, in the scheme world, be a focus for tall buildings; in the cancelled scheme world it does not exist. Mr Griffiths acknowledged that that was the case, and also agreed with Mr Tait KC that the design statement also relied heavily on the proposed Old Oak High Street (“the new High Street”), which would pass through the shield site and the reference land and link North Acton with Old Oak Common Lane Station, shown in the diagram below:[124].Old Oak Common Lane Station does not exist in the cancelled scheme world, and therefore in that world there is no new High Street. Mr Tait KC suggested to Mr Griffiths that in the absence of the new High Street the tall buildings proposed in the CAAD scheme lost their wayfinding function; there was no destination beyond the linear park. In response, Mr Griffiths argued that the tall buildings had other functions. First, they were a natural evolution northwards of the cluster of tall buildings around North Acton; second, the reference land is an opportunity for “re-stitching” the communities of North Acton and Harlesden, which used to be connected but are now separated by industrial land; third the reference land represented an opportunity for connection in the future with residential development to the east of the railway in the cancelled scheme world. Mr Griffiths spoke about the design of the three tall buildings, which he saw as “rotating upwards” to maximise space and light in the courtyards, marking the linear park, giving “a feeling of meaning” to the development, and “modulating the heights of North Acton down to the sort of shoulder level that is expected in this location as part of the OPDC local plan”. He also felt that they would provide a moment of interest for rail passengers.[125].Ms Wilson was cross-examined about the conflict with the Ealing Development Management document (paragraph 116 above); she acknowledged that the reference land is not in a location specified for tall buildings. She argued that little weight should be afforded to that policy; but it was pointed out to her that the policy was consistent not only with the coincidentally numbered Policy 7.7 of the 2011 London Plan but also with the same policy, which is unchanged, in the 2016 London Plan. Mr Tait KC therefore argued that it should carry no less weight for having been prepared before the designation of the opportunity areas.[126].Mr Tait KC in closing argued that the CAAD scheme was deeply infected with elements of the HS2 scheme, in particular by the two erroneous assumptions that it would be part of the Old Oak Common Lane Station cluster, and that it would have a wayfinding function as part of the scheme world new High Street. Absent those justifications for tall buildings, there was little left; Mr Griffiths’ reliance on possible future development to the east was speculative. In summary the appellant argued that the CAAD scheme contradicts the plan-led tall building strategy without offering the benefits of the highest levels of connectivity or amenity provided by designated locations for tall buildings.

Density

[127].The agreed density of the CAAD scheme is 438 dwellings (or units) per hectare, calculated by the method used in the London Plan and the OAPF. Mr Tait KC pointed out that density is an outcome of design rather than an input to it; in other words, density is a consequence of other elements of the design, and in this case it is the result of the proposed height of the buildings in the CAAD scheme. So there is less to say about it.[128].Policy 3.4 of the London Plan 2016 deals with optimising housing provision and includes at Table 3.2 a density matrix for three types of setting and three PTAL categories. It is agreed that the reference land falls into the highest PTAL category of 4 to 6, and is in an urban setting, so the relevant range in the matrix is 70 to 260 units per hectare (u/ha), where the number of habitable rooms per unit is between 2.7 and 3.0. However, the London Plan (para 3.28) also states that the matrix should not be applied mechanistically, and that account should be taken of local context, design and transport capacity, as well as social infrastructure, open space and play facilities. The Housing SPG states that exceeding the densities in the matrix may be justified in exceptional circumstances. The density of the CAAD scheme exceeds the top of the density range provided by the matrix.[129].Geographically specific supplementary guidance is provided in the OAPF where the indicative density band for the reference land is predominantly 550 u/ha, with part at 300 u/ha, giving a weighted average of 485 u/ha. Ms Clutten referred us to the recent planning approvals in North Acton for developments known as Portal, Portal West and 2 Portal Way where densities ranged from 946 to 1,027 u/ha, far in excess of the indicative density bands in the OAPF. By comparison, the CAAD scheme density falls comfortably within the relevant indicative band. Mr Castle accepted that the density band for the reference land was informed by the site’s proximity to North Acton station, and was therefore still relevant in the cancelled scheme world.[130].Ms Clutten submitted that the density of the CAAD scheme is justified by the need to optimise residential density within opportunity areas and to make efficient use of brownfield land. There was no basis on which it could be refused planning permission on the grounds of density.[131].Mr Tait KC acknowledged that the indicative densities in the OAPF (and relied on by the respondent) are said (paragraph (5.31) to have been informed by existing best practice development across London, but drew our attention to the assumptions on which the density modelling work was based, including at paragraph 5.32 the assumption that the highest density of 550 u/ha is appropriate for new development around stations and key destinations “such as the high street”. It is agreed that the new High Street is to be disregarded under the cancellation assumption, so 550 u/ha is not, he said, even an indicative starting point. Moreover, the indicative figures were subsequently qualified in the framework principles and emerging local plan, where as we have seen guidelines on height refer to10 to 12 storeys on Victoria Road and lower heights adjacent to sensitive locations.

Our conclusions on tall buildings and density

[132].The nature of planning policies is such that it can be difficult to discern succinct themes within them, but one very strong impression that we can take from the policies about tall buildings is that development should be plan-led; they are not supposed to be permitted at random or without a specific rationale. Locations will be designated, and they will have particular characteristics; tall buildings are to have a function within them, as destinations or as waymarkers. And they are not to have an adverse effect on their surroundings.[133].In the scheme world there could certainly be a role for tall buildings on the reference land. The advantages of a legible landscape connecting North Acton and the new transport hub, and the proximity of the cluster around Old Oak Common Station, would bring the CAAD scheme into harmony with London Plan Policy 7.7C (set out above at paragraph 114). The location would be suitable, the effect on the surrounding environment could be positive, the relationship with nearby buildings would be good, and so on.[134].Absent developments that we have to disregard because they are part of the scheme, in the cancelled scheme world, the three tall buildings of the CAAD scheme are not in a location designated for tall buildings, do not have a function, and are not in tune with their surroundings. We agree that buildings along Victoria Road do not have to be exclusively 10-12 storeys high; but a single 24-storey building would appear as a random intrusion on the townscape. Policy 7.7 of the London Plan emphasises the importance of the effect of tall buildings on sensitive locations nearby; the CAAD scheme with its three tall buildings sits uncomfortably with the nearby much older housing on Wells House Road. We have formed these views both from the many visualisations provided by the parties, and more importantly from walking around the neighbourhood. We also think that Mr Griffiths’ visualisation (at paragraph 120 above) reveals, not a comfortable transition from the Southern Gateway to Oaklands, but an intrusive structure which is out of keeping with its immediate surroundings and detracts from the impact of the tall buildings to the north and south.[135].Absent the High Street and the Old Oak Common Lane Station Cluster, residential development at the reference land could fit in with its surroundings if it was confined to 10 to 12 storeys, but could not function either as a destination or as a transition zone from one destination to another. The “linear park”, in particular, goes nowhere. The design rationale for the three tall buildings disappears. Mr Griffiths has worked on the design of the CAAD scheme for some years and has been closely involved in its evolution through many discussions with the local planning authority, and his enthusiasm for it was obvious, and eloquently communicated; but absent the scheme-dependent features, his remaining justifications for the tall buildings were weak and speculative. A moment of interest for passing train travellers, or a possible link to the east in the remote future, is not enough. The proposed density is equally impossible to justify, absent the High Street.[136].Development is to be plan-led. The development plan in the cancelled scheme world at the valuation date has not designated the reference land as a place for tall buildings, or for high density development. None of the respondent’s arguments have persuaded us that it would be appropriate for tall buildings to be permitted on this site in conflict with the development plan.[137].In conclusion on this topic, had we decided that planning permission could have been given for the CAAD scheme or one of the alternatives despite objections based on noise, open space and access to schools, we would not have granted a CAAD for the CAAD scheme itself because of its tall buildings and high density. Either the respondent’s alternative scheme or Mr Castle’s reduced height suggestion would have been acceptable.

Conclusion

[138].Neither the CAAD scheme, nor the respondent’s alternative scheme, nor Mr Newton’s reduced height suggestion, is appropriate alternative development. We grant a CAAD for the appellant’s proposed scheme. Right of appeal