Harringay Meat Traders Ltd v Secretary of State for Communities and Local Government

A certificate of appropriate alternative development under the Land Compensation Act 1961 must be determined by applying ordinary planning principles in the hypothetical “no scheme world”. The decision-maker must consider the development plan and other material considerations in accordance with section 38(6) of the Planning and Compulsory Purchase Act 2004. Section 17(7) prevents refusal solely because a proposed use conflicts with the development plan; it does not exclude the ordinary statutory planning framework. A court reviewing the decision cannot reargue planning merits, but it must intervene where the reasoning applies an erroneous legal approach. A certificate need not be quashed where an undertaking adequately protects the claimant against prejudice in subsequent compensation proceedings.

The claimant sought an order under section 21 of the Land Compensation Act 1961 quashing the Secretary of State’s decision upholding a certificate of appropriate alternative development issued by the London Borough of Hackney. The certificate specified business, general industrial, and storage and distribution uses, but rejected additional retail, food, hotel, residential, crèche, and leisure uses for land acquired for the Olympic Games site.

The challenge alleged unfairness, inadequate treatment of traffic, services and facilities, residential development, bus routes, building height, and the treatment of retail and related uses. The central statutory issue was whether section 38(6) of the Planning and Compulsory Purchase Act 2004 applied to a certificate under the 1961 Act.

1. Statutory approach. The application was governed by section 21 of the Land Compensation Act 1961. Section 17 requires the decision-maker to determine what classes of development would have received planning permission on the relevant date, assuming that the compulsory purchase scheme had been cancelled. That question must be answered by applying ordinary planning principles.
2. Development plan. Section 17(7) means that conflict with the development plan cannot, by itself, justify refusal of a certificate. It does not disapply section 38(6) of the Planning and Compulsory Purchase Act 2004. The decision-maker must have regard to the development plan and depart from it only where material considerations indicate that course. The Inspector’s reference to section 38(6) therefore did not invalidate his approach.
3. Review of planning judgment. The Inspector was entitled to assess the site’s heavy commercial traffic, neighbouring industrial uses, poor transport accessibility, planning policy designations, and the uncertainties in the emerging planning guidance. Those conclusions involved planning judgment and did not disclose an error of law or inadequate reasons.
4. Retail and related uses. The Inspector wrongly treated paragraph 8 of Appendix P to Circular 06/2004 as permitting small-scale retail and food uses to be subsumed into broader land uses because they would have little effect on land value. Following the reasoning in Rooff Ltd v Secretary of State [2011] EWCA Civ 435, the certificate had to address uses appropriate for the site, regardless of their scale in the wider area. The Inspector gave no adequate reason based on significant and insuperable planning objections for excluding the contemplated convenience-store and café uses.
5. Disposition. Ground 6 succeeded, but the other grounds failed. The court accepted the Greater London Authority’s undertaking to recognise specified retail, food, and crèche uses, including relevant expenses, in compensation proceedings. The certificate was not quashed at that stage, but the claimant was given permission to apply for a quashing order if the undertaking proved insufficient to prevent prejudice.

The Secretary of State had upheld the London Borough of Hackney’s certificate following an inquiry and the Inspector’s report. The Administrative Court allowed one ground of challenge but declined to quash the certificate at that stage, accepting an undertaking by the Greater London Authority and reserving permission to apply for a quashing order if prejudice arose.