Secretary of State for Transport v Bleep UK Plc & Ors

In determining a certificate of appropriate alternative development, the decision-maker must apply ordinary planning principles and determine the matter afresh. It must decide in accordance with the development plan unless material considerations indicate otherwise, giving proper weight to the circumstances of the cancelled-scheme world.

A substantial housing need and the availability of brownfield land did not outweigh clear policies protecting a Strategic Industrial Location. Residential development risked compromising the industrial area’s integrity and effectiveness. A proposed building’s height, density, relationship with nearby buildings and access to outdoor space were also material to its acceptability. Development was limited to an industrial and workspace-led scheme of no more than ten storeys.

The Secretary of State appealed under section 18 of the Land Compensation Act 1961 against a certificate issued by the London Borough of Ealing on 27 July 2021 for alternative mixed-use development of Rowan House, Victoria Road, London.

The certificate allowed two blocks of up to nine and 19 storeys, including 116 residential units. The respondents sought a larger residential-led alternative of up to 26 storeys. The Secretary of State contended that appropriate alternative development was limited to industrial, office, retail and café or restaurant uses, at a height of no more than ten storeys.

The principal issues were whether residential development could be permitted on land within a Strategic Industrial Location despite the development plan, and whether a tall building would be appropriate in that location.

1. Appeal allowed. The Tribunal cancelled Ealing’s certificate and substituted a certificate for a mixed commercial and workspace development, with commercial uses at ground level and B1 workspace above. Development could not exceed ten storeys.

2. Under section 18 of the Land Compensation Act 1961, the Tribunal determined the certificate application afresh. It applied ordinary planning principles. By section 38(6) of the Planning and Compulsory Purchase Act 2004, the starting point was the development plan, from which departure required sufficiently weighty material considerations.

3. The land remained within a Strategic Industrial Location in the cancelled-scheme world. The relevant plan policies gave strong and unequivocal protection to such land. Residential development conflicted with those policies and created a real risk of constraining neighbouring industrial activity and thereby compromising the location’s integrity and effectiveness.

4. London’s acute housing need, the importance of brownfield development, the wider opportunity areas and the site’s peripheral position within the industrial area were material considerations. They did not outweigh the plan-led protection of the industrial land. Housing provision in the relevant policies was principally directed to Old Oak rather than Park Royal, where the reference land lay.

5. The proposed 19- and 26-storey residential schemes would also be inappropriate in form. They would be overbearing or incongruous at Atlas Junction, particularly in relation to the Victorian cottages. Their densities greatly exceeded the relevant guidance, and they provided inadequate outdoor space and poor access to public open space. Emerging policy specifically indicating eight to ten storeys for the site was given its ordinary meaning.

6. The replacement certificate permitted a mix of industrial uses and offices, with retail and café or restaurant uses at ground level. The precise form and height within the ten-storey maximum remained subject to design considerations. Costs were reserved.

• Upper Tribunal (Lands Chamber): Allowed the Secretary of State’s appeal under section 18 of the Land Compensation Act 1961, cancelled the certificate, and substituted a narrower certificate.
• London Borough of Ealing: Issued a certificate of appropriate alternative development on 27 July 2021 under section 17 of the Land Compensation Act 1961, allowing a residential-led mixed-use development of up to 19 storeys.