Rooff Ltd v Secretary of State for Communities & Local Government & Ors

In determining a certificate of appropriate alternative development, the decision-maker must apply the planning framework to the statutory hypothetical: what permission would reasonably have been granted if the compulsory acquisition scheme had not been proposed. Development-plan policies, supplementary guidance and environmental conditions must be assessed together. A policy supporting mixed-use development does not necessarily require housing on every site or within every office scheme. Comprehensive development and the availability of more suitable locations may justify refusing residential use on a less suitable site. An inspector’s reasons must be read fairly and as a whole. Individual elliptical phrases will not establish a material error of law or substantial prejudice where the essential reasoning is intelligible.

Rooff Ltd challenged, under section 21 of the Land Compensation Act 1961, the Secretary of State’s decision dated 9 July 2009 upholding an inspector’s recommendation that its appeal be dismissed. The dispute concerned a certificate of appropriate alternative development issued by Newham London Borough Council for land at Carpenters Road, London E15.

The certificate identified B1 and B2 uses but excluded C3 residential use. The central issue was whether, assuming the Olympic development scheme giving rise to the compulsory purchase order had been cancelled, residential planning permission would have been granted or would have been reasonably foreseeable on the claimant’s land.

1. The application was dismissed. The court’s task under section 21 of the Land Compensation Act 1961 was to determine whether the Secretary of State’s decision was outside the statutory powers or whether a material failure to comply with statutory requirements had substantially prejudiced the claimant.

2. A certificate of appropriate alternative development requires the planning authority to consider the statutory no-scheme hypothesis. The authority must assess what development would have been permitted, taking account of the development plan and other material considerations. Any future development must be reasonably foreseeable at an identifiable time.

3. The inspector had correctly treated the planning policies as requiring a site-specific assessment. The mixed-use policies did not impose an unconditional requirement that every office development include residential accommodation. Comprehensive development of the wider Carpenters Road area could meet housing objectives by locating housing in more suitable waterside areas.

4. The inspector was entitled to conclude that the railway, the proposed road bridge and the surrounding environmental conditions militated against residential development on the appeal site, even on the assumption that other commercial uses might be removed. The availability of more suitable land meant that residential development requiring substantial mitigation was not reasonably likely to receive permission.

5. The principles in South Bucks District Council v Porter (2) [2004] UKHL 33 required the inspector’s reasons to be intelligible and adequate when read as a whole. Although paragraph 172 contained elliptical reasoning, the essential reasoning was clear and no substantial prejudice was established. The inspector was also entitled to regard the claimant as bearing the forensic burden of meeting the council’s particularised objections.

There was consequently no irrationality, illogicality or material error of law in the inspector’s report or the Secretary of State’s confirmation of it.