Secretary of State for Transport v Quintain City Park Gate Birmingham Ltd and others

Compulsory purchase – Compensation – Certificate of appropriate alternative development – Appellant secretary of state acquiring land for construction of railway terminus – Respondent former landowners seeking compensation – Local authority granting certificates of appropriate alternative development – Appellant appealing –  Tribunal asked to determine as preliminary issue planning need for purpose built student – Preliminary issue determined accordingly The respondents were the former owners of four neighbouring plots of land at Eastside, Birmingham. Each of the sites was acquired by the appellant secretary of state for the construction of the new Curzon Street terminus for the HS2 railway. The land was close to the centre of Birmingham and, had the sites not been acquired, it was likely that they would have been redeveloped for a variety of uses, including commercial, cultural, residential and educational uses. The respondents made five separate claims for compensation and each applied to the local planning authority for a certificate of appropriate alternative development under section 17 of the Land Compensation Act 1961. Each application identified purpose-built student accommodation (PBSA) as an appropriate alternative form of development. The appellant argued that at the relevant valuation date the need for student accommodation in the centre of Birmingham was fully satisfied by the existing supply of PBSA and other forms of accommodation available to students; and that a reasonable planning authority would not have granted planning permission for further PBSA at any of the sites. The respondents maintained that there was a substantial unmet need for PBSA at each valuation date which could have been satisfied by development at Eastside had their land not been acquired for HS2. The tribunal was asked to determine as a preliminary issue the level of planning need for PBSA. Held: The preliminary issue was determined accordingly. (1) In broad terms, planning need was calculated by comparing demand for and supply of student bedspaces across a geographic area. The appropriate conclusion of the issue of planning need was numerical. Planning need related to the level of need for new PBSA to be met by the proposed development of PBSA on sites 1-4 (each at its own valuation date). The legal framework for the preliminary issue was provided by sections 14, 17 and 18 of the 1961 Act. In assessing the value of land for the purpose of determining the amount of compensation payable for its compulsory acquisition, section 14(3) provided that it might be assumed that planning permission was in force on the valuation date for any development that was appropriate alternative development, as defined in section 14(4) (ie, 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). (2) The assumptions required to be made by section 14(5) were that the scheme underlying the acquisition had been cancelled on the launch date (in these cases 25 November 2013), that no action had been taken by the acquiring authority wholly or mainly for the purposes of the scheme, and that there was 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. Section 17 enabled the acquiring authority or the landowner to apply to the local planning authority for a CAAD stating that there was, or was not, appropriate alternative development in relation to the land acquired and describing it.  Section 18(1) provided a right of appeal to the tribunal which had to consider the matters to which the certificate related as if the application had been made to it in the first place, and had to confirm, vary8 or cancel the certificate and issue a different certificate in its place as it considered appropriate (section 18(2)).  (3) The tribunal had to determine the preliminary issue applying ordinary planning principles. It was required to have regard to the development plan, so far as material, and make its determination in accordance with the plan unless material considerations indicated otherwise. In making its determination, evidence of actual decisions made by the planning authority would be relevant and no doubt persuasive: see section 38(6) of the Planning and Compulsory Purchase Act 2004.  In the present case if the tribunal considered that the local authority’s own decisions on any of the CAAD applications were of assistance on the question whether planning permission could reasonably have been expected to be granted, the tribunal was not prevented by the assumptions required by section 14(5) from taking those decisions into account: Urban Edge Group Ltd v London Underground Ltd [2009] UKUT 103 (LC) [2009] PLSCS 181 and Secretary of State for Transport v Curzon Park Ltd and others [2023] UKSC 30; [2023] EGLR 36 considered. (4) The preliminary issue fell to be considered in the context of national and local planning policy and guidance in 2018. Policy TP33 (the local authority’s development plan policy on PBSA, which required consideration of whether there was a demonstrated need for the development) required that a need for PBSA be demonstrated by reference to a particular development involving a particular number of bedspaces. If a need could be demonstrated for at least as much accommodation as the particular proposal was intended to provide, and if the application site was well located to satisfy that need, the extent of any greater need was unlikely to be of much significance.  On the evidence, the tribunal was satisfied that it would have been assumed in 2018 that future growth would be at a higher rate than that seen in previous years. Whilst it might be permissible in terms of planning policy to project growth through to the end of the plan period in 2031, it was not obligatory to do so when considering an application for a specific site.  (5) Putting itself in the position of a decision maker considering the need for PBSA on the valuation dates, the tribunal was confident that growth in student numbers – whether over four years or longer – at the Birmingham universities would be significant, and higher than in previous years. The substantial shortfall which was demonstrated on current figures would be expected to increase unless sufficient additional PBSA was made available. Those considerations would contribute to demonstrating a need for PBSA. A planning need had been demonstrated for far more PBSA than any one of the sites would be capable of accommodating.      Guy Williams KC, Nina Pindham and Isabella Buono (instructed by DLA Piper) appeared for the appellant; David Elvin KC and Richard Moules KC (instructed by BCLP LLP) appeared for the first respondent; Richard Glover KC (instructed by Mills & Reeve LLP) appeared for the second respondent; James Pereira KC and Caroline Daly (instructed by Town Legal LLP) appeared for the third respondent; David Elvin KC and Richard Moules KC (instructed by Ashurst LLP) appeared for the fourth and fifth respondents. Eileen O’Grady, barrister Click here to read a transcript of Secretary of State for Transport v Quintain City Park Gate Birmingham Ltd and others