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

In a certificate of appropriate alternative development case, the decision-maker must assess the planning prospects of the subject land in the no-scheme world. The inquiry must distinguish between comprehensive development of a wider area and a separate development of the subject site. An otherwise appropriate use cannot be disregarded merely because it is small compared with wider policy objectives or lacks specific development-plan support. Reasons must be intelligible and adequate, address the principal controversial issues, and explain how law and fact were resolved. A failure justifies challenge where it causes genuine substantial prejudice. Where the statutory development plan gives no direct guidance for the particular site, non-statutory guidance may be treated as a material consideration without the statutory presumption attaching to the development plan.

Rooff’s builders’ yard was compulsorily acquired for the London 2012 Olympic development and legacy uses. Rooff applied under section 17 of the Land Compensation Act 1961 for a certificate of appropriate alternative development. The local authority issued a positive certificate for B1 and B2 uses but excluded C3 residential use. The Secretary of State dismissed Rooff’s appeal, adopting the inspector’s report, and Blake J dismissed Rooff’s application to the High Court.

Before the Court of Appeal, Rooff challenged the adequacy of the inspector’s reasons and his approach to the development plan under section 38(6) of the Planning and Compulsory Purchase Act 2004. The central issues were whether the inspector had properly addressed both comprehensive development of the wider area and a separate mixed-use development of the appeal site, and whether residential use was reasonably foreseeable in the no-scheme world.

The appeal was allowed on ground 1 and the Secretary of State’s decision was quashed. Ground 2 was rejected.

1. Section 17 framework. An application for a certificate under the Land Compensation Act 1961 is considered as if it were a planning application in the no-scheme world. The decision-maker must identify appropriate classes of development, whether immediately or at an identifiable future time. Where development as part of a larger area is possible, that possibility and the likely distribution of uses within the larger scheme must be considered, applying the principle in Sutton v Secretary of State (1984) 50 P&CR 147.
2. Adequacy of reasons. The applicable standard was that in South Bucks District Council and another v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953. Reasons must be intelligible and adequate, explain why the decision was reached, disclose the conclusions on principal important controversial issues, and show how issues of law or fact were resolved. A challenge succeeds where the deficiency causes genuine substantial prejudice.
3. Inspector’s reasoning. The inspector was entitled to conclude that, in a comprehensive development of the Carpenters Road area, residential use would gravitate towards the more attractive waterside parts. He did not, however, clearly determine the distinct case for a separate gateway development of the appeal site. His conclusion that the relevant factors seriously counted against that proposal did not show that they were sufficient to reject it. His reliance on the guidance to disregard a small residential element, or a proposal not following the wider policy pattern, was legally defective. Section 17 required consideration of whether residential use was acceptable as a significant element of development on this site.
4. Development plan. The inspector was entitled to conclude that the statutory plans gave little direct guidance on the particular site. In that circumstance section 38(6) did not prevent him from treating the statutory presumption as of limited relevance and considering non-statutory guidance as a material consideration, without giving it special presumptive status.
5. Order. The decision was quashed under section 21 of the Land Compensation Act 1961. The Secretary of State was to decide, in consultation with the parties, how to proceed.

• Court of Appeal (Civil Division): allowed the appeal on the reasons ground and quashed the Secretary of State’s decision.
• Queen’s Bench Division: Blake J dismissed Rooff’s application challenging the Secretary of State’s decision.