In the case of Secretary of State for Transport v John Lewis Partnership Pensions Trust , the Upper Tribunal Lands Chamber again grappled with a case arising from HS2, and considered how to apply the cancelled scheme world principle to a scheme proposed in a Certificate of Appropriate Alternative Development (CAAD), and two alternatives also put forward.
It found that neither the residential-led CAAD scheme nor a smaller alternative residential scheme proposed by the respondent, the John Lewis Partnership Pensions Trust, qualified as appropriate alternative development by dint of the tall buildings included within them, and other matters of amenity. This left just the third alternative, being a commercial scheme put forward by the appellant, the secretary of state for transport.
This article considers how the ‘cancelled scheme world’ principle applies to CAADs, and how to treat planning policies influenced by the underlying scheme.
John Lewis secured a CAAD certifying that planning permission would have been given for residential development, including tall buildings of up to 24 storeys. The secretary of state challenged the grant of the CAAD, contending that only industrial and commercial uses would be permissible on the land, the CAAD scheme buildings were too tall, and density was too great.
The respondent, John Lewis, also put forward an alternative residential led scheme with lower heights. The appellant, the secretary of state, considered however that no residential development was appropriate. Both parties agreed that the commercial led scheme put forward by the secretary of state would be appropriate. But John Lewis, for obvious reasons, defended their preference for residential.
The relevant ‘valuation date’ was in 2017, meaning a relatively common exercise in such cases had to be undertaking in considering what was the relevant planning policy at that time.
The site context was addressed in detail by the Upper Tribunal, suffice to say that there were various nearby commercial and industrial uses that would not be happy neighbours to residential blocks.
The Upper Tribunal had to decide which of the three proposals could qualify as appropriate alternative development, assuming the scheme was cancelled and applying the planning policies in place in December 2017 - excluding those policies forming part of the HS2 scheme itself.
In some cases, the parties were easily able to agree that certain policies could be disregarded given their link to HS2. But the question that the parties did not agree on and which the tribunal had to address was “how [to] approach planning polices that are agreed not to be a 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”.
Put simply, the question was whether policies that sit outside HS2 should be ignored if they were created later and assumed an ‘HS2 world’, for example by accommodating or reflecting it. It also raised a further issue: would those policies look different if HS2 had been cancelled before they were drafted?
Section 14 of the Land Compensation Act 1961 is the provision that states that in assessing the compensation due for land that is compulsorily purchased, account is to be taken of planning permission in force on the valuation date or assumed to be in force as appropriate alternative development.
The assumptions in section 14(5), which are applied by the operation of section 17 pertaining to CAADs, are as follows:
Section 14(5) | (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, and (d) [not relevant] |
In this case, the launch date was November 2013, when the HS2 bill was presented to parliament. The valuation date was the vesting date of 23 December 2017.
The assumptions in section 14(5) are important, and establish the cancellation assumption to remove the HS2 scheme from the retrospective considerations.
Section 17 of Land Compensation Act 1961 enables applications to be made to the planning authority for CAADs, and section 18 allows for appeals to the tribunal.
There are then some principles established in case law that the tribunal noted. These can be found in the Supreme Court’s decision in Secretary of State for Transport v Curzon Park Limited , and applied in Quintain Park Gate Birmingham Limited v Secretary of State for Transport . These include:
The scheme is assumed to have been cancelled, but everything else is treated as having happened - including developments not part of the scheme but which would not have occurred without it.
Planning permissions already granted and buildings already built as at the valuation date do exist in the ‘cancelled scheme world’. This is irrespective of whether they would, in the same form or otherwise, or wouldn’t have been built absent the scheme.
The tribunal cannot construct anything in the real world. This slightly confusing statement is meant to reflect that if in the real world the scheme was cancelled on the launch date in 2013, then no doubt there would have been development activity between that date and the 2017 valuation date. But the tribunal cannot speculate as to what form that might have taken.
The decision sets out the tribunal’s review of the planning policies they found relevant in the cancelled scheme world, which we do not need to repeat here as they are very case specific.
As regards the principle of residential development, the tribunal found that whilst they should disregard policies that are part of the scheme itself, and remove references to the scheme, they should not otherwise edit phrases or ideas or indeed numbers. Nor should they give policies limited weight because in a cancelled scheme world they might have been reconsidered.
Critically, the policy that de-designated the reference land as strategic infrastructure land remained in the cancelled scheme world and therefore the principle of residential development being permitted was shown.
However, that was as good as things got for John Lewis. The tribunal found that permission would not have been granted for the CAAD scheme for reasons of noise and amenity, arising from proximity to nearby industrial uses. Their finding that the reference land was unsuitable for residential development knocked out both residential options put forward.
Whilst other factors became moot following that decision, the tribunal did also conclude that:
poor access to open space was a major difficulty,
lack of access to a primary scheme was a factor against the sustainability of development on the reference land and
due to cancellation assumptions, relevant policy would not support tall buildings on the reference land nor high density development.
As a result neither residential scheme, the CAAD or the smaller alternative, were appropriate alternative development, leaving just the commercial option put forward by the secretary of state. Since both parties acknowledged the appropriateness of that, not surprisingly the tribunal granted a CAAD for it.
For further information please contact David Richardson of our planning and infrastructure consenting team.
