The Eastside Partnership Nominee Company Limited & Anor v The Secretary of State for Transport [2026] UKUT 9 (LC)

[2026] UKUT 9 (LC)

Case Nos: LC-2019-278

LC-2020-176

IN THE UPPER TRIBUNAL (LANDS CHAMBER)

IN THE MATTER OF TWO NOTICES OF REFERENCE

Venue Royal Courts of Justice, Strand,

Between

THE EASTSIDE PARTNERSHIP NOMINEE COMPANY LIMITEDAppellant/Respondent

AND PMB GENERAL PARTNER LIMITEDAppellant/Respondent

THE SECRETARY OF STATE FOR TRANSPORTRespondent/Appellant

London WC2A 2LL

15 January 2026

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

COMPENSATION – PLANNING PERMISSION – Certificate of Appropriate Alternative Development – uses – whether purely PBSA scheme acceptable – harm to heritage assets – planning balance – appeal against issued certificate dismissed – appeal against non-determination allowed

Curzon Gateway, land on the south side of

Curzon Street, Birmingham, B4 7XG

Martin Rodger KC, Deputy Chamber President and

Mr Peter D McCrea OBE FRICS FCIArb

15-17, 20, 24 October 2025

David Elvin KC and Richard Moules KC, instructed by Ashurst LLP for Eastside Partnership

Guy Williams KC, Andrew Byass and Brendan Brett, instructed by DLA Piper UK LLP for Secretary of State

The following cases are referred to in this decision:

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

Secretary of State for Transport v Curzon Park Ltd & Ors[2023] UKSC 30, [2023] 1 WLR 2762; on appeal from [2021] EWCA Civ 651; on appeal from [2020] UKUT 37 (LC), [2020] RVR 154

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

Introduction

[1]The Tribunal’s decision in Quintain City Park Gate Birmingham Ltd v Secretary of State for Transport

[2025] UKUT 312 (LC)

, (“Quintain”) concerned the first of four neighbouring sites in the Eastside area of Birmingham, acquired in 2018 by the Secretary of State for Transport for the construction of a new terminus for the HS2 high-speed rail link. In this decision, we focus on the land which in Quintain was described as Site 4, (here, we will call it “the Appeal Site”), acquired from The Eastside Partnership Nominee Company Limited and PMB General Partner Limited (“Eastside”) on 26 September 2018, the valuation date and the relevant date for assessing planning issues.

[2]At this stage, we are concerned with Certificates of Appropriate Alternative Development (“CAAD”s or simply “Certificates”), which will eventually form the basis of compensation payable to Eastside.

[3]This decision determines two appeals. First, an appeal under section 18 of the Land Compensation Act 1961 (“the LCA”) brought by Eastside against the non-determination by the local planning authority, Birmingham City Council (“the Council”), of Eastside’s application on 22 February 2019 for a certificate under section 17 of the LCA. Secondly, the Secretary of State for Transport appeals under section 18 against a certificate which the Council later issued to Eastside on 16 January 2020.

[4]This decision can be more concise than our Quintain decision. The statutory provisions, background, and many of the planning policies described in Quintain similarly apply here and need not be repeated. Paragraphs [11-18] on legislation and the role of the Tribunal, [19-28] on the locality, [37-71] on the proceedings and [72-92] on planning policy in Birmingham, would repay reading as a convenient background to this decision, and we do not repeat them here.

[5]We heard evidence from the same expert witnesses as in Quintain. David Elvin KC and Richard Moules KC again appeared for the claimant, with Guy Williams KC, for the Secretary of State, this time being joined by Andrew Byass and Brendan Brett. We are again grateful to them all.

[6]After the hearing we inspected the Appeal Site and considered it from the various vantage points suggested by the parties.

[7]The issues have narrowed since Quintain, with each expert submitting revised evidence following that decision. It is common ground that the Appeal Site was capable of accommodating substantial mixed-use development, including a tall tower fronting Curzon Street. The scale, massing, and design of that alternative development is disputed but the main issue between the parties is the mix of uses that would be acceptable to a reasonable planning authority, and specifically the balance between general residential and purpose-built student accommodation (“PBSA”). Neither party now suggests that office or education uses are appropriate. The parties agreed that office and educational uses would not be commercial and that it was unnecessary for the Tribunal to consider them (see p.41 of Day 1 Transcript). It was not suggested that they would not be appropriate alternative development.

The Appeal Site

[8]The Appeal Site is the most easterly, and the smallest, of the four sites, comprising 1.07 hectares of previously developed land. For context, travelling from west to east, the comparative sizes of the three neighbouring sites were: Site 1 (Quintain), 1.52ha; Site 2 (Birmingham City University), 1.51 ha; and Site 3 (Curzon Park), substantially larger at 4.6 ha.

[9]The Appeal Site sits almost at the eastern fringe of Eastside and is the most self-contained of the four sites. It is bounded by the City Centre ring road (Lawley Middleway A4540) to the east, by a triangle of land used as a Network Rail compound adjoining the Birmingham-Derby railway viaduct to the south, and by Curzon Street to the north. To the west, the Digbeth Branch canal and its curtilage (forming part of the Warwick Bar Conservation Area), provide a 30 metre wide corridor separating the Appeal Site from the three neighbouring sites. Vehicular access to the Appeal Site is by a private right of way over Site 3 by means of a former railway bridge which crosses the canal.

[10]Until early 2018, the Appeal Site was used as a self-storage facility, featuring densely packed rows of shipping containers and a small administrative cabin. Before that, it had formed part of a larger site used as a cement works. Before the valuation date part of the larger site was redeveloped as Curzon Gateway, providing student accommodation operated by Unite. Curzon Gateway was the eastern neighbour of most of the Appeal Site except for a narrow finger of the Site which wrapped round the new buildings and fronted Lawley Middleway. After the valuation date the Curzon Gateway development would be demolished to make way for HS2, but at the date with which we are concerned it was still standing. The Appeal Site itself was cleared and capable of development.

[11]To the north, across Curzon Street, was the City Locks PBSA development (now known as University Locks), and to the north-west lay the Birmingham City University campus. The aerial view below shows these features with the Appeal Site enclosed by the dashed red line and the route of the canal shown by a dashed blue line). Sites 2 and 3 are visible as cleared land to the west.

[12]There are three relevant heritage assets in the vicinity of the Appeal Site. Some distance to the west, close to the junction of New Canal Street and Curzon Street, is the former Principal Station Building of the Birmingham terminus for the London-Birmingham Railway which opened to passengers in 1838. This monumental building in the Greek Revival style is Grade I listed in recognition of its architectural distinction, its historic interest, and the degree of survival of its original fabric. Part of the southern boundary of the Appeal Site is marked by the Grade II listed 1838 former railway bridge which now provides vehicular access to the Site but which formerly carried trains to Curzon Street station over the Digbeth Branch canal.

[13]Most of the Warwick Bar Conservation Area lies to the south, remote from the Appeal Site, but it also includes a narrow corridor north of the railway bridge and immediately bordering the Appeal Site on its western side comprising the canal and its associated locks and wharfs. Relevant planning history

The extant permission

[14]On 6 February 2007 the Council granted planning permission (2003/01734/PA) (“the Extant Permission”) for the former cement works site (comprising both the Appeal Site and the land subsequently developed for student housing, together known as Curzon Gateway), for “canalside development to provide 260 dwellings (residential C3) and 748 student bed spaces with ancillary retail (A1), food and drink (A3), health and fitness (D2) uses, associated access, landscaping and highway works”.

[15]A previous permission for the same site granted in August 2003 had been quashed following judicial review. That permission had been for 245 dwellings plus around 749 PBSA bedspaces - a mix described by officers in August 2003 as resulting in ‘a dominance of residential use on the site’.

[16]The PBSA permitted by the Extant Permission was completed in 2008, and at the valuation date was managed by Unite and was known as Curzon House. It consisted of two blocks of varying heights including a 12 storey tower fronting Curzon Street just off the Lawley Middleway roundabout. At the valuation date the 260 dwellings which had also been included in the Extant Permission were still capable of being lawfully built out, as the permission had been implemented despite having been granted 11 years earlier, and under a different development plan. The 2019 CAAD application

[17]On 22 February 2019, Eastside applied to the Council for a CAAD for a mixed use development (which we will refer to as the 2019 CAAD Scheme) comprising:

“up to 44,000 sqm GIA comprising retail, financial and professional, café and restaurant and hot food takeaway (use classes A1, A2, A3, A5), office (use class B1), residential (use class C3), student accommodation (sui generis), education (use class D1) including tall buildings up to 25 residential storeys high and digital or internally illuminated advertising hoarding on the Lawley Middleway frontage.”

“up to 44,000 sqm GIA comprising retail, financial and professional, café and restaurant and hot food takeaway (use classes A1, A2, A3, A5), office (use class B1), residential (use class C3), student

[18]The application was supported by a design and access statement (the “February 2019 DAS”), which featured development in two blocks. The northern block, in a C-shape, ranged in height from 7 to 18 storeys, with the higher element fronting Curzon Street (the 25 storeys mentioned in the description did not find its way into the design). The southern block, formed in a square donut, ranged from 7 to 14 storeys, with the tallest element on the south-western corner. On the western side of the Site, where the proposed development would front the canal, both blocks were of 9 storeys with the 18 and 14 storey towers at either end. On the eastern side, the blocks were of 7 storeys, to mirror the adjacent Curzon House PBSA scheme.

[19]The February 2019 DAS included a schedule of maximum floor areas which suggested the scheme could accommodate up to 1,105 PBSA bedspaces over 30,949 sqm, residential accommodation of up to 43,742 sqm, and retail of 344 sqm.

[20]The Council did not determine the application within the statutory determination period which expired on 18 April 2019 and so is deemed to have issued a negative or nil-certificate. Eastside responded by submitting the first of the two references which are now before us, appealing against the Council’s deemed nil-certificate. The 2020 Certificate

[21]Notwithstanding the commencement of Eastside’s appeal, discussions with the Council continued, and on 16 May 2019 Eastside submitted a revised design and access statement (the “May DAS”). This featured a smaller development of up to 30,143 sqm. The 18-storey tower remained, but was re-oriented to face ‘north-south’. The 14-storey element terminating the canal side frontage in the southern block was reduced to 11 storeys, and the remainder of the development was reduced in height from 9 to 7 storeys. An alternative “U” shaped configuration was proposed for the southern block if it was to be developed for general residential use, with the original square-donut being retained only if the use was to be PBSA.

[22]The schedule of maximum areas which accompanied the May DAS comprised retail of 440 sqm, residential of 30,143 sqm, and PBSA of 26,158 sqm.

[23]On 18 November 2019, Eastside submitted a second application for a CAAD based on the May DAS, which sought:

“up to 30,143 sqm GIA comprising retail, financial and professional, café and restaurant and hot food takeaway (use classes A1, A2, A3, A5), office (use class B1), residential (use class C3), student accommodation (sui generis), education (use class E1) including tall buildings up to 25 storeys high, and digital or internally illuminated advertising hoarding on the Lawley Middleway frontage.”

“up to 30,143 sqm GIA comprising retail, financial and professional, café and restaurant and hot food takeaway (use classes A1, A2, A3, A5), office (use class B1), residential (use class C3), student

[24]Discussions with the Council’s City Design Team resulted in a further design change, altering the scale of the proposals to a mixed-use development of 30,747 sqm (although the parties agree the correct figure was 31,187 sqm to include 440 sqm of retail space inadvertently omitted). The Council’s concerns in relation to the height of the blocks adjacent to the canal and adjoining the Unite building were met by reducing the height of those blocks, but increasing the height of the northern tower.

[25]A floor area schedule of alternative uses included up to 30,747 sqm of residential space, PBSA of up to 24,870sqm, and retail of up to 440 sqm. The 18 storey tower was increased to 24 storeys, the western elements adjoining the canal remained at 7 storeys, but the height of the eastern elements, adjoining the Unite development, was reduced to 5 storeys.

[26]The proposed form of the development is shown below (with the southern block configured for PBSA use).

[27]On 16 January 2020 the Council granted a CAAD for that scheme, and the Secretary of State now appeals against that certificate. We will refer to this form of development as the 2020 CAAD Scheme.

Planning policy context

[28]We described relevant planning policies in Quintain at [74] to [91]. In Secretary of State for Transport v Quintain City Park Gate Birmingham Ltd & Ors

[2025] UKUT 7 (LC)

(the ‘PBSA demand decision’), we determined that by 2018 there was a need for around 20,000 student bedspaces in the City as a whole, around 9,000 of which were in the city centre.

[29]For the purpose of this appeal, the most relevant policies of the Birmingham Development Plan, covering the period to 2031, are the following: PG1, which specifies overall levels of growth and identifies the intention to provide 51,100 additional homes in the City (against an assessed need for 89,000 homes) and 745,000 sqm of office floorspace, primarily in the city centre; PG3, which is concerned with place making and requires high design quality for new development and that it should make efficient use of land; GA1.1, which identifies the City Centre as the focus for retail, offices, residential and leisure activity; GA1.2, which anticipates significant new levels of growth in the city centre, taking advantage of its potential to provide 12,800 new homes and 700,000 sqm of offices, and designates part of Eastside (including the Appeal Site) as one of the City’s “wider areas of change”; GA1.3, which describes the distinctive qualities of the City’s seven Quarters, including Eastside, with its emphasis on learning and technology; TP12, which is concerned with the historic environment; TP27, which requires new housing to contribute to the creation of sustainable neighbourhoods; and TP33, which is concerned with student accommodation.

[30]The key requirement of the development policy as regards the Eastside wider area of change (and in particular the GA1 policies) is to secure the eastward expansion of the city-centre through the provision of well-designed mixed-use development including office, technology, residential, learning and leisure.

[31]The March 2003 High Places Supplementary Planning Guidance, which describes the policy approach to the development of tall buildings in the City, was also referred to. We summarised its relevant features in Quintain at [88] to [90]. It stipulated that, outside the city centre core, exceptional circumstances would be required to justify buildings of more than 15 storeys.

The parties’ rival proposals

[32]Eastside has further altered the design of its original CAAD Scheme following advice from Mr Coleman on heritage and townscape matters. In the new design distances between buildings have been increased, and the southern block has been moved further from the canal and is slimmer. In the residential version of the scheme, the ‘donut’ has become a ‘U’, with an open side facing north to ensure better amenity space. In the PBSA configuration, the southern block remains enclosed but the courtyard has been enlarged. 500mm vertical ‘steps’ have been introduced in the facades, to better articulate the taller elements allowing them to be read down to ground level.

[33]The maximum floor area in the revised design comprises residential space of up to 34,120 sqm, up to 1,105 PBSA units in 30,789 sqm, and retail of 344 sqm. The maximum permitted floorspace would be 34,464 sqm. We will refer to this as the varied 2019 Proposal. In PBSA use, the scheme would look like this:

[34]The Secretary of State accepts that the Appeal Site is capable of accommodating substantial mixed-use development, but argues this should be limited to 29,136 sqm. She agrees that a tall tower would be acceptable at the northern end of the site, but limited to a maximum height of 19 storeys. The remaining blocks would be 7 storeys, with a 5 storey element in the southeastern corner. The development, which we shall call the Secretary of State’s Scheme, would include a substantial basement and podium. Schematically it would look something like this (viewed from the south east):

[35]The Secretary of State’s Scheme would provide 12,468 sqm of residential space, 15,315 sqm of PBSA, and 1,353 sqm of retail space. The tower on Plot 1 would accommodate PBSA, Plot 2 adjoining the canal would contain residential units, with residential also the preferred use for Plot 3, but with PBSA as an acceptable alternative. The scheme could be modified to omit PBSA and in that case it would extend to 27,783 sqm of residential space with 1,353 sqm of retail.

[36]In Quintain we explained (at [18]) our unwillingness to redesign the parties’ proposed schemes for ourselves or to issue a certificate for forms of development which were unsupported by evidence. In response to those observations, Eastside submitted yet further designs explained by further expert evidence. It put forward a range of ‘intermediate options’ between its own and the Secretary of State’s proposals on design, form and massing. These introduced versions of the 2020 CAAD with the tower lowered from 24 to 21 storeys, and variants of the Secretary of State’s Scheme with the podium removed, and with 21 and 24 storey towers, with, in each case a wholly PBSA scheme, or including some residential space.

[37]In summary, Eastside asks us to grant a CAAD in the terms sought for the varied 2019 proposal, or the 2020 CAAD scheme, or its intermediate option with a 21 storey tower, or the intermediate forms of the Secretary of State’s Scheme. The Secretary of State invites us to determine that none of those options would have had a reasonable expectation of receiving planning permission at the valuation date or, if they did, it would be subject to conditions and obligations that her planning expert, Mr Adams, proposed, and which we discuss below.

[38]It is common ground that the Secretary of State’s Scheme would have a reasonable expectation of receiving planning permission and represents appropriate alternative development which should be certified by the Tribunal.

The issues

[39]There is therefore no dispute that a positive certificate should be issued in both appeals. Two principles concerning the form of development which would have been acceptable are agreed: at least seven storeys should be permitted along the canal frontage; and a tall building of at least 19 storeys may be positioned at the northern end of the site. It is also agreed that at least some PBSA use would be appropriate.

[40]The main issue between the parties relates to use, and specifically whether a fully PBSA scheme (with some retail) would have been acceptable to a reasonable planning authority. The only other issue concerns the extent of the development for which consent would have been likely to be granted, and whether it would have been greater than the minimum agreed between the parties. We heard design, townscape and heritage evidence on that issue.

[41]It is convenient to consider the issue of use first. Mix of uses

[42]As in Quintain, we heard planning evidence from Mr Paul Rouse MRICS for Eastside, and Mr John Adams MRICS for the Secretary of State.

[43]The real battleground between the parties was whether a reasonable planning authority would grant planning permission for a mixed-use scheme which was dominated by PBSA use. Would the development of the Appeal Site effectively for a single use be consistent with the development plan? And if such a development would be inconsistent with the development plan are there other material considerations which would nevertheless make it likely that planning permission would be granted?

[44]In Quintain we said this, at [185]:

“We are satisfied that, read as a whole, the development plan places considerable emphasis on the importance of mixed-use development and of “diversifying the overall offer”, as it was put in the text accompanying Policy GA1.3. It is not prescriptive of any particular mix and does not define what it means by mixed-use, but the thrust of the relevant policies leans away from uniformity or the dominance of a particular use to the exclusion of others and towards variety. The application of policy will depend on the context and the nature of the site. There is no requirement for every development to include a mix of uses, irrespective of its scale, and no necessity for every development to include every one of the uses identified as appropriate for Eastside. But, in our judgment and in the context of this appeal, the domination of a significant part of a large area by a single use would not be consistent with the requirement of mixed-use development; it would not diversify the overall offer and would not contribute to sustainable neighbourhoods.”

“We are satisfied that, read as a whole, the development plan places considerable emphasis on the importance of mixed-use development and of “diversifying the overall offer”, as it was put in the text

[45]It is uncontroversial that there was a need for both PBSA and residential uses at the valuation date. In our decision on the PBSA preliminary issue, we determined that at the valuation date there was demand for 9,000 student bed spaces. The City’s need for general housing was also a matter of record. Policy PG1 of the development plan identifies a requirement for 51,100 new dwellings during the plan period. If it was achieved, that provision would still leave a shortfall of 37,900 dwellings against the City’s assessed housing need of 89,000, leaving the City dependent on the cooperation of neighbouring authorities to provide the housing required to meet its aspirations for growth. The evidence shows that in 2018 the City was on track to meet the quantity of new housing indicated in the development plan. The annual monitoring report for 2017/18 showed a housing land supply some 36% greater than the required 5-year minimum, and completions were meeting the housing trajectory in policy TP29.

[46]In essence, the parties’ cases were a re-run of those in Quintain, outlined at [190] to [193]. Our conclusions in this appeal are little different from those summarised at [194]:

“It seems to us that the development plan can fairly be said to favour the provision of general needs housing of different sizes, styles and tenures. That does not mean that a decision maker would refuse a proposal to provide PBSA or would insist on a general residential use for every site (especially in Eastside). But where permission is sought for a very large site including both residential and PBSA uses, Policy TP27 is engaged, and the proposal will need to demonstrate how it contributes to creating a sustainable residential neighbourhood. Such a neighbourhood is characterised by variety and balance and caters for all incomes and ages. In the assumed circumstances at the valuation date, and especially with large neighbouring sites ready for development being at least as suitable for PBSA, it would not be an answer to say that the desired variety and balance should be insisted on elsewhere in the neighbourhood. A dominance of PBSA on one site, to the complete or substantial exclusion of general residential provision, would risk its dominance of the newly emerging neighbourhood as a whole, and that would be inconsistent with the development plan.”

“It seems to us that the development plan can fairly be said to favour the provision of general needs housing of different sizes, styles and tenures. That does not mean that a decision maker would ref

[47]However, as we emphasised in Quintain, the application of policy depends on the context and nature of the site in question, and not every site would be required to have the same mix of uses. A single (or dominating) use might be acceptable in some locations. Mr Adams was content to suggest that a wholly residential scheme would be acceptable for the Appeal Site. That is a reflection of the greater priority which the development plan affords to general needs housing over PBSA, but it also recognises that because of its shape and location this site is not particularly suitable for an office or educational use.

[48]Mr Rouse identified four factors which he thought supported the use of the Appeal Site for a wholly PBSA scheme: the extant planning permission; that master planning would allow the Appeal Site effectively to ‘borrow’ the PBSA element of Site 3; relevant planning policy; and the physical characteristics of the Appeal Site. The first three of these largely fell away under cross-examination. Mr Rouse accepted that the extant permission featured a dominance of residential use, in the context of the regeneration of the area as a learning quarter, and that there was nothing in the planning history including the extant permission that indicated that a PBSA-led scheme would be acceptable. The unimplemented residue of the extant permission was for the development of 260 homes. He made the point, which we accept, that the position on the ground in 2003 was much different. He also accepted in his oral evidence that there was nothing directly in the Big City Plan, to which we attach limited weight in any event, that offers support for a purely PBSA development of the Appeal Site, and that in this appeal there is nothing to control what occurs on Site 3.

[49]We have more sympathy for Mr Rouse’s evidence on the particular characteristics of the Appeal Site. It was surrounded by education-related uses, with which PBSA would be highly compatible. It was in a part of Eastside which already featured student housing, at Curzon Gateway and University Locks, but which was also particularly suitable for that use. The separation of the Appeal Site from the centre of Eastside achieved by the canal would enable a sensible ‘accumulation’ of PBSA to be self-contained. There were also other opportunities for attractive residential development on land nearby, including adjacent to University Locks to the north, or on Sites 2 and 3 to the west overlooking the Park.

[50]In terms of the number of student bedspaces in the vicinity, Unite’s Curzon Gateway scheme adjoining the Appeal Site comprised 748 spaces, and University Locks 625. On their preference for a wholly PBSA scheme, Eastside’s varied 2019 proposal would provide a further 1,105 bedspaces; on the 2020 CAAD scheme, a further 871. In combination with the neighbouring properties, this would take the total number of bedspaces in the immediate vicinity to between 2,244 and 2,478. That is no doubt a significant amount of PBSA accommodation in close proximity, but as Mr Rouse pointed out, it would not be unique for Birmingham (or for Eastside) in that respect. There is a comparable concentration of PBSA at Aston University’s student village only a short distance away.

[51]We accept that there are features which distinguish the Appeal Site from its neighbours in the context of PBSA. It is physically self-contained, bounded by roads or the canal, and is the smallest of the four sites in issue. At the valuation date, it was immediately adjacent to the Unite PBSA development to the east, and University Locks to the north. It is ‘very well located’, in the words of Policy TP33, to BCU (although is not alone among the four sites in issue in that respect). It is also relatively remote in its relationship to the city centre, and in a fringe location within Eastside itself. In contrast, Site 1 lies at the edge of the city core, while Sites 2 and 3 are at the heart of Eastside adjoining the Park. The Appeal Site is among the learning and learning-related uses at the opposite end of Eastside. We are satisfied that, given these specific characteristics of the Appeal Site, a purely PBSA development, with a smaller amount of retail space, would be consistent with the development plan. And it follows that a part residential, part PBSA scheme would also, in principle, be acceptable.

[52]We do not regard this conclusion as inconsistent with the approach we took in Quintain, on which the Secretary of Stated relied heavily. The proper approach is site specific, and as we emphasised in Quintain, there is no requirement for every development to include a mix of uses.

Design, townscape and heritage

[53]As in Quintain, evidence on urban design and architecture was given by Mr Stephen Townsend RIBA and Mr Robert King RIBA, and heritage evidence by Mr Richard Coleman RIBA and Mrs Amy Jones MCIfA, for the claimant and the Secretary of State respectively.

[54]There is a range of proposed schemes before us, each with PBSA and residential variants. Until a month or so before the hearing, Eastside contended for the revised version of its varied 2019 proposal and also maintained that the 2020 CAAD should be confirmed. Following Quintain, Eastside submitted its further evidence (without objection from the Secretary of State) describing ‘intermediate schemes’.

[55]In their largest PBSA-led variants, the developments under consideration are the varied 2019 proposal comprising 34,464 sqm, the 2020 CAAD Scheme at 31,187 sqm, and the Secretary of State’s Scheme of 29,136 sqm. When some residential space is introduced in place of PBSA the parameters narrow to 31,603 sqm, 27,021 sqm, and 29,136 sqm respectively.

[56]The northern end of the site is agreed to be suitable for a tall building of at least 19 storeys. The scale and orientation of that tall building is in issue. The heights above ordnance datum (AOD) of the alternative designs are the following: 2019 CAAD development:18 storeys (164m) 2020 CAAD Scheme:24 storeys (182m) 2020 CAAD Scheme: (intermediate form) 21 storey (173m) with variation 1:21 storeys (171.5m) with variation 2:24 storeys (180.5m)

[57]For reference, the height of the tallest element of University Locks, on the opposite side of Curzon Street, is 19 storeys, or 166.2m, and the extant permission featured a 12 storey building of a height of 144.5m.

[58]The dispute between the heritage experts is a narrow one, confined to the impact of the various proposals on the setting of the Warwick Bar conservation area. First designated in 1987, it is largely located to the south of the Birmingham to Derby railway line, but extends to the north incorporating the Digbeth Branch Canal, including the section immediately to the west of the Appeal Site. The canal has historic interest as a major trade route, and the Digbeth branch is particularly significant in this location as evidence of the historic relationship between the canal and the burgeoning railway at Curzon Street. The Council’s conservation area appraisal described it as ‘the most complete remaining canalside quarter in Birmingham’ whose significance derives from a concentration of surviving canalside structures.

[59]Mr Coleman and Mrs Jones agreed that no other nearby heritage asset, including the Grade II listed railway bridge, would be affected by any of the options before us. They also agreed that in principle, development of the Appeal Site could bring regeneration benefits. Mr Coleman did not consider that any of the schemes would cause harm to the setting of the conservation area. Mrs Jones believed that the 24 storey tower in the 2020 CAAD Scheme would have an overbearing effect and would cause harm which she classified as less than substantial at the lower end of the scale. Reducing the height of the tower to 21 storeys would not allay her concerns. In explaining why she considered 19 storeys acceptable, but 24 storeys objectionable, Mrs Jones said that the taller building really drew the eye upwards and away from the canal and disrupted a proper appreciation of the horizontal quality of the canal. In her opinion this detrimental effect would begin when the tower reached 21 storeys and at that level and above it would affect the viewer’s appreciation of the canal’s significance. As regards the varied 2019 proposal, she considered that the combination of the nine-storey elements fronting the canal, and the two taller 18 and 14 storey towers would have a dominating effect on the canal, again resulting in less than substantial harm at the lower end of the scale.

[60]Mrs Jones, fairly, did not give a view as to overall planning balance – that was for the planning witnesses – and did not seek to persuade us that the heritage harm which she perceived would cause a reasonable planning authority to refuse planning permission. Her evidence was that the heritage harm would need to be considered in that balance.

[61]The experts agreed that the Secretary of State’s Scheme would not cause harm to the setting of the conservation area, but in Mrs Jones’ view, increasing the height of the tower (as Eastside proposed in its intermediate schemes) would result in harm at the lower end of the scale. She did not consider that the presence or otherwise of the podium affected her judgment.

[62]Mr King accepted that a 21 storey tower (only 2 storeys taller than in the Secretary of State’s Scheme) would be acceptable in principle subject to design. As far as his evidence is concerned the issue lies between 21 storeys, and the 24 storeys which the Council considered acceptable when it certified the 2020 CAAD Scheme. In their report to the planning committee, officers considered that the proposed 24 storey tower would not cause substantial harm to designated heritage assets, and would be a positive addition to the city centre. In their view it would be a bold and positive addition to the city’s skyline, with views from outside the city centre being particularly dramatic. It is apparent that officers applied the criteria laid down by the High Places SPG and were satisfied that the 2020 CAAD Scheme had made a successful case and it would be supported.

[63]We agree with the officer’s assessment, on the assumption that the 24 storey tower would be of the highest quality design. Mr King very fairly accepted that a tower in excess of 19 storeys would be acceptable, and we see no reason to depart from the reasoning of officers in accepting the principle of 24 storeys. As for orientation, as Mr Elvin KC submitted in closing, in the end this proved to be of very minor significance. Accordingly we conclude that a 24-storey tower would in principle be acceptable.

[64]Turning to the height of the two blocks immediately adjoining the canal in each of the schemes, a height of seven storeys (131m) is uncontroversial, while nine (137m) is in dispute. It is common ground that there is a need to manage canal-side massing to avoid overbearing development, to maintain appropriate scale, and to protect the canal’s linear character and openness. As Mr Williams KC pointed out in closing, the Council appeared to have rejected anything above seven storeys; in granting the 2020 CAAD certificate, it had already had sight of the February 2019 design, which featured 18, 9 and 14 storeys alongside the canal, and the May 2019 design, which featured seven storeys with 18 and 11 storeys at either end. The officers’ report recounted to the committee that extensive discussions had taken place with the applicant around scale and massing, as if the application had been for planning permission. At paragraph 9.24, officers reported that:

“Following discussions with the applicant regarding the scale of the proposal, the revised drawings illustrate a much more sympathetic proposal that would not detrimentally impact on the important canal feature or the (former) adjacent Unite Building. The heights at these points have been significant lowered providing a better relationship with these features. Of particular note is the relationship with the canalside, with the development proposing a maximum height of 7 storeys which has balanced the engagement with the canal whilst not overlooking and dominating this space.”

“Following discussions with the applicant regarding the scale of the proposal, the revised drawings illustrate a much more sympathetic proposal that would not detrimentally impact on the important can

[65]It was on this basis that officers went on, at paragraph 9.25, to conclude that the development would not cause substantial harm to designated heritage assets and would provide a positive addition to the city centre.

[66]Mrs Jones thought the seven storey blocks alongside the canal which were permitted by the 2020 CAAD certificate were appropriate, and that their consistency of roof heights created a horizontal line which balanced with the linear canal; it was the introduction of the tower that she objected to. She felt that the increase to nine storeys in the varied 2019 proposal coupled with the 14 storey tower at the end of the southern block, lost the consistent roof height and eroded the horizontal quality of the waterway. Mr King agreed, saying that the nine storeys, set 4m above the canal would be overbearing.

[67]Mr Townsend thought the increase from seven to nine storeys made no material difference to the perception of the space around the canal, because of the generous width of the canal corridor itself, which would be some 31 metres from wall to wall.

[68]Mr Elvin KC submitted that the 10-storey elements of University Locks, adjacent to the canal to the north of the Appeal Site, established a precedent for the 9 storeys proposed in the varied 2019 proposal, being of similar height, at 140m AOD. But as Mr King pointed out, this element of University Locks is some distance from the canal, and the taller elements are not continuous but are gable ends as opposed to the two more continuous longer frontages proposed for the Appeal Site.

[69]The Council’s acceptance of a 24 storey tower was one of a number of changes to Eastside’s original design and appears to have been permitted at the expense of the nine storey elements. There is no evidence that a reasonable planning authority would permit both. We accept the evidence of Mrs Jones and Mr King that buildings presenting a continuous nine-storey frontage so close to the canal would be overbearing and would dominate the scene. They were not acceptable to the Council and we do not consider they would have obtained permission. We will therefore limit the height of the blocks alongside the canal to 7 storeys. The proposed tower of 14 storeys which features at the south-west corner of the donut block in the varied 2019 CAAD proposal is objectionable for the same reason.

[70]The remaining issue on the 2020 CAAD is the quality of the accommodation facing into the courtyard to the southern block. Mr King raised concerns about privacy, overlooking, and poor quality amenity space when the building was in its PBSA configuration. But we accept Mr Elvin’s submissions in closing, that there is no policy requirement to provide outdoor amenity space for PBSA, and that issues of overlooking and privacy could be alleviated at the design stage, which could include the introduction of balconies and rooftop amenity spaces.

[71]Drawing the threads together at this point, we see no issues in design terms with the 2020 CAAD development, either in wholly PBSA use (with some retail), or in a mixed PBSA/residential configuration. The varied 2019 proposal is unacceptable on design and heritage grounds owing to the heights at 9 and 14 storeys along the canal side.

[72]It is common ground that the Secretary of State’s scheme is acceptable and would be granted planning permission. The remaining design issue for us to consider is the proposed variations to that scheme suggested by Eastside. In summary, we are not prepared to certify these as appropriate alternative forms of development. They were presented without much enthusiasm and appear to us to be half-baked and unnecessary. Mr King agreed that increasing the height of the north tower in the Secretary of State’s Scheme to 21 storeys would be acceptable but both it and the 24 storey version appear much bulkier and less satisfactory than the slimmer tower featured in Eastside’s proposals. We are not persuaded that either would have obtained permission.

[73]While we heard evidence on the removal or retention of the podium in the Secretary of State’s scheme, this didn’t really lead anywhere. Mr Townsend proposed that the podium could be removed but provided no alternative arrangements for parking. No doubt this could be left to the detailed design stage and Mr King did not consider the absence of a podium would lead a reasonable planning authority to refuse planning permission. Nevertheless, we are not prepared to certify the intermediate schemes.

Planning Balance

[74]We can deal with this very shortly. In recommending the 2020 CAAD Scheme for approval, officers acknowledged that the development would have some impact on the setting of the conservation area but concluded that such less than substantial harm would be outweighed by the public benefits of the proposals.

[75]Mr Adams, while maintaining that it was relevant that there were alternative proposals which would cause less harm, very fairly accepted that if the various CAAD proposals were acceptable, the public benefits would be sufficient to outweigh the low scale less than substantial harm. We agree, and we do not consider that in this case the availability of development on a lesser scale is a material consideration.

Conclusions

[76]In our judgment, a reasonable planning authority would have granted permission for the 2020 CAAD Scheme, as the Council did (subject to a minor correction to floor areas which the parties agree should total 31,187 sqm).

[77]The varied 2019 proposal would not have been granted consent.

[78]The Secretary of State’s Scheme is also appropriate alternative development but the evidence did not persuade us of the merits of the intermediate schemes.

[79]The Secretary of State’s appeal against the 2020 CAAD certificate is therefore dismissed. Eastside’s appeal against the deemed negative certificate is allowed, but not on the basis either of the original 2019 proposal which was before the Council when time for determination expired, or the amended 2019 CAAD scheme. Martin Rodger KC Mr Peter D McCrea OBE FRICS FCIArb Deputy Chamber President Right of appeal