Bashir v Newham London Borough Council

Compulsory purchase – Compensation – Certificate of appropriate alternative development (CAAD) – Respondent authority acquiring appellant’s land under compulsory purchase order – Appellant applying for CAAD to inform level of compensation – Respondent issuing “nil” certificate – Appellant appealing – Whether notional scheme proposed by appellant contrary to planning policy and design and having harmful effect on heritage and townscape – Appeal allowed The appellant owned a site that was formerly 117 and 119-121 High Street, Stratford, London (the reference land) until it was compulsorily acquired by the respondent, as acquiring authority, under a compulsory purchase order (CPO). The CPO formed part of a wider acquisition of properties in the Sugar House Lane conservation area to facilitate a significant mixed-use development known as Strand East. The reference land had been cleared and developed, but at the valuation date 117 High Street comprised a three-storey 1930s building, with a café on the ground floor and residential accommodation above. 119-121 High Street was a 2-3 storey building, with a single-storey rear element. Neither building was listed. To help inform the level of compensation to which he was entitled, the appellant applied to the respondent, as local planning authority, for a certificate of appropriate alternative development (CAAD) under section 17 of the Land Compensation Act 1961. The respondent issued a “nil” certificate but the appellant appealed. The appellant contended that, but for the CPO, he would have developed the reference land in conjunction with the owners of another plot which comprised a large industrial building and outbuildings surrounded by areas of hardstanding. It was used as part of a tool hire storage facility. The application for a CAAD encompassed both sites with an agreed site area of 2,656 sq m, on which the buildings comprised a gross internal area of 1,140 sq m. Held: The appeal was allowed. (1) In assessing the amount of compensation payable under rule 2 of section 5 of the 1961 Act, section 14(2)(a) provided that account might be taken of any planning permission in force on the valuation date for development on the reference or other land. Under section 14(3), it might also be assumed that planning permission was in force on the valuation date for “appropriate alternative development”, as defined in section 14(4), which could constitute development on the relevant land alone, or with other land. That meant 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 granted on an application determined on or after the valuation date. The assumptions in section 14(5) were that the scheme underlying the acquisition had been cancelled on the launch date, no action taken by the acquiring authority wholly or mainly for the purposes of the scheme and no prospect of the same scheme, or any other similar project which met substantially the same need, being carried out in the exercise of a statutory function, or compulsory purchase powers. (2) Section 17 of the 1961 Act enabled the acquiring authority or the landowner to apply to the local planning authority (or the body with power to issue the certificate) for a CAAD stating that there was, or was not, appropriate alternative development in relation to the land acquired, and describing any such development. Under section 17(5)(b), when granting a certificate, the tribunal had to give a general indication of any conditions to which any planning permission could reasonably have been expected to be subject and of any precondition, such as a planning obligation, that could reasonably have been expected to be met. (3) Section 18(1) provided the appellant with a right of appeal to the tribunal which, by section 18(2), had to consider the matters to which the certificate related as if the section 17 application had been made to the tribunal in the first place; secondly, it had to confirm the certificate, vary it, or cancel it and issue a different certificate as appropriate. The tribunal was required to consider the matter afresh, rather than reviewing the local planning authority’s certificate and the appeal had to be decided in accordance with ordinary planning principles: see Secretary of State for Transport v Bleep UK PLC [2022] UKUT 331 (LC); [2023] PLSCS 3 considered. In determining a section 18 appeal, “the proper approach” was to determine what a notional reasonable planning authority, correctly addressing both law and policy, could have been expected to decide at the valuation date; evidence of actual decisions made by the planning authority would be relevant and persuasive: Urban Edge Group Ltd v London Underground Ltd [2009] UKUT 103 (LC); [2009] PLSCS 181 considered. (4) When dealing with an application for planning permission, the authority had to have regard to the development plan and local finance considerations, so far as material, and any other material considerations. If the application was for development in a conservation area, the authority had to pay special attention to the desirability of preserving or enhancing the character or appearance of that area. Development plan policies had to be interpreted objectively. Even though the interpretation of planning policy was a matter of law, planning policies did not normally require intricate discussion of their meaning, and there was an expectation that the interpretation would be straightforward, without the need for undue or elaborate exposition: R (on the application of Mansell) v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2017] PLSCS 174; [2019] PTSR 1452 considered. If development plan policies pulled in different directions, the planning authority had to make a judgment bearing in mind such factors as the importance of the policies and the extent of the compliance or breach, and determine whether the proposal accorded with the development plan as a whole: R v Rochdale Metropolitan Borough Council, ex parte Milne (no 2) [2001] Env LR 22 considered. (5) In the present case, the respondent now accepted there was a scheme of development which would be acceptable as appropriate alternative development. Other than height, the essential differences were that the notional scheme put forward by the appellant and its variations were primarily residential in use, while the alternative encompassed wholly employment uses, in three separate blocks with open areas between them. Bearing in mind the requirements for compliance with planning and design policies together with consideration of heritage impacts and townscape harm, the tribunal would cancel the “nil” section 17 certificate and substitute an alternative based on a variation of the amended proposal. James Pereira KC and Mark O’Brien O’Reilly (instructed by Holmes & Hills LLP) appeared for the appellant; Neil Cameron KC and Nick Grant (instructed by DLA Piper LLP) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Bashir v Newham London Borough Council