Secretary of State for Transport v Curzon Park Ltd and others

When identifying appropriate alternative development for compulsory-purchase compensation, the statutory cancellation assumption removes the underlying scheme but creates no additional consequential assumptions. Relevant real-world evidence known to the market at the valuation date may therefore be considered, including evidence contained in applications or decisions concerning certificates of appropriate alternative development for other land.

Such certificates and applications are neither planning permissions nor material planning considerations. Their evidential value is limited to what they reveal about market circumstances and the development of other sites. The assessment must be objective and broad-brush. It may address alternative sites, cumulative impacts and incompatible development, but must not speculate about events between the scheme’s launch date and the valuation date.

The Secretary of State compulsorily acquired four neighbouring development sites in Birmingham for the HS2 railway terminus. Each owner obtained, or sought, a certificate of appropriate alternative development under the Land Compensation Act 1961. The proposed developments included substantial amounts of student accommodation.

The Upper Tribunal held that certificates and applications concerning neighbouring sites could receive such evidential weight as was appropriate, although they were neither planning applications nor material planning considerations. The Court of Appeal reversed that conclusion in [2021] EWCA Civ 651, holding that the statutory cancellation assumption required those materials to be disregarded.

The central issue was whether, and for what purposes, a decision-maker determining appropriate alternative development for one parcel could consider certificate applications or decisions relating to other land acquired for the same scheme.

1. Appeal allowed to a limited extent. The cancellation assumption in section 14(5) of the Land Compensation Act 1961 requires the underlying scheme to be treated as cancelled on its launch date. It does not require every real-world consequence of the scheme to be assumed away. Subject to the prescribed assumptions, section 14(4)(b) permits any relevant evidence concerning circumstances known to the market at the valuation date. The Court of Appeal therefore erred in holding that certificates and applications concerning other land had necessarily to be disregarded: paras 59–66.

2. In constructing the cancelled-scheme world, the decision-maker may consider planning permissions actually in force at the valuation date and the prospect of permission being granted for other land. Those matters may affect the proposed development through the availability of alternative sites, cumulative impacts or incompatibility between neighbouring uses. The assessment is objective and broad-brush. It excludes speculation about private landowners’ intentions unless those intentions were known to the market: paras 67–73 and 86–91.

3. Section 14 does not authorise a reconstruction of what might notionally have happened between the scheme’s launch date and the valuation date. The reality principle therefore precludes such speculation. The assessment focuses on circumstances actually existing, subject to the cancellation assumption, and known to the market at the valuation date: paras 74–76.

4. An application for a certificate is not equivalent to a planning application, and a certificate is not equivalent to planning permission. Neither is a material planning consideration. A certificate creates notional circumstances solely for calculating compensation and does not satisfy planning need or authorise development: paras 77–81.

5. Material submitted with an application concerning other land may nevertheless be used insofar as it illuminates circumstances known to the market. A pattern of such applications may provide limited evidence of how owners of developable land would be expected to maximise their returns, and therefore of what development proposals for other sites might reasonably have come forward. Relevance and weight are for the planning authority or Upper Tribunal, subject to ordinary public law principles: paras 85 and 92–94.

6. A certificate granted for another site cannot itself engage consistency as though it were planning permission. Consistency may, however, require a planning authority to resolve the same planning issue consistently across successive certificate decisions. The Upper Tribunal’s original declaration was restored: paras 96–100.

1. United Kingdom Supreme Court: Allowed the Secretary of State’s appeal to a limited extent and restored the Upper Tribunal’s declaration: [2023] UKSC 30.
2. Court of Appeal: Dismissed the Secretary of State’s appeal and held that certificate applications and decisions relating to other land could not be considered: [2021] EWCA Civ 651; [2021] PTSR 1560.
3. Upper Tribunal (Lands Chamber): Held that such applications and decisions need not be assumed away and could receive appropriate evidential weight, while remaining distinct from planning applications and permissions: [2020] UKUT 37 (LC); [2020] RVR 154.