Certificate of Appropriate Alternative Development considerations for the Upper Tribunal

In this article we provide an overview of the Quintain City Park Gate Birmingham Ltd v The Secretary of State for Transport case, exploring the considerations of the Upper Tribunal concerning Certificates of Appropriate Alternative Development (CAAD). We set out four important take aways from the Upper Tribunal’s decision under the Land Compensation Act 1961.

Background 

Quintain City Park Gate Birmingham Ltd v The Secretary of State for Transport concerned an appeal under section 18 of the Land Compensation Act 1961 by the landowner following the acquiring authority’s use of compulsory purchase powers to acquire the site for the construction of the HS2 terminus station in Birmingham. 

The landowner applied for a certificate of appropriate alternative development (CAAD) in relation to a mixed use development (uses included offices, a hotel, retail, PBSA). This was not determined, and the landowner appealed against that non-determination by the local planning authority (LPA. A CAAD certifies developments as an appropriate alternative to the purpose or scheme the land is being taken for  under compulsory purchase powers, and assists in determining the value of the interest acquired for calculating compensation. On receiving a CAAD application, an LPA must consider whether planning permission could reasonably been expected to be granted on the valuation date, subject to four statutory assumptions. Those four assumptions, set out in section 14(4) of the Land Compensation Act 1961, are:

1. The scheme underlying the compulsory acquisition is taken to have been cancelled at the ‘launch date’ (defined in section 14(6) of the same Act);
2. The acquiring authority has taken no action for the purposes of the scheme underlying the compulsory acquisition;
3. There is no prospect of the same scheme or any project meeting substantially the same need being carried out in the exercise of a statutory function of compulsory purchase powers; and
4. If the scheme was for use of land for or connected to construction of a highway (‘the scheme highway land’), no highway will be constructed to meet the same or substantially the same need as the need the scheme highway was meeting.  

The Upper Tribunal’s conclusion

The Upper Tribunal concluded that, at the valuation date the proposed development would likely not have obtained planning permission without the inclusion of conditions requiring minimum levels of residential development, as it was concerned regarding the height and massing of the development, and the impermeability of the development. The Tribunal considered four important points:

1. Section 14 of the Land Compensation Act 1961 identifies assumptions that can be made. The site must be taken as known to the market at the time, except for the required assumptions. This ‘reality principle’ precludes analysis of further fictitious scenarios. This is consistent with the Fletcher Estates case . No assumptions other than those permitted by statute could be made.
2. Where a tribunal (as opposed to an LPA) is required to issue a new replacement CAAD under section 18(2)(b) of the Land Compensation Act 1961, it is not required to certify 'every description' of development. Their decision is a judicial one and is therefore constrained by the evidence received, and there is limited flexibility to change the scheme the subject of the CAAD (for example by changing its scale).
3. An insufficiently specific application could result in the decision maker determining that such planning permission could not reasonably be expected to be granted. 

To read the full case, click here. For further information please contact our planning & infrastructure consenting team.