Mohammed Bashir v The London Borough of Newham

On a section 18 appeal concerning a certificate of appropriate alternative development, the Tribunal must determine the matter afresh, applying ordinary planning principles. Development-plan policies are interpreted objectively in their proper context, but their application commonly requires planning judgment. Where policies pull in different directions, the authority must assess the importance and extent of compliance with each policy and reach an overall judgment on the plan as a whole.

Housing benefits do not outweigh specific policies protecting land for predominantly employment-generating uses where the development would undermine the relevant employment cluster and site allocation. Development causing less than substantial harm to a conservation area must be assessed in the planning balance, with substantial weight given to conservation. A CAAD application need not contain the detail required for full planning permission, but the applicant must establish that the proposed scheme would probably obtain permission.

The appellant’s land in Stratford was compulsorily acquired by the respondent under a compulsory purchase order. The valuation date was 14 November 2016. The appellant applied under section 17 of the Land Compensation Act 1961 for a certificate of appropriate alternative development. The respondent issued a nil certificate.

The proposed alternatives included predominantly residential mixed-use schemes, including towers between 26.8 and 52 metres high. The respondent accepted before the Tribunal that some wholly employment-based development would have been acceptable. The issues included the proper interpretation of competing development-plan policies, the effect of the schemes on the Sugar House Lane employment cluster and site allocation, building height, townscape, conservation-area harm, planning benefits and contributions.

The appeal was allowed. The Tribunal cancelled the nil certificate and directed that an alternative certificate be substituted.

1. Approach to the appeal. Under section 18(2) of the Land Compensation Act 1961, the Tribunal considered the section 17 application afresh rather than reviewing the local planning authority’s decision. It applied ordinary planning principles and asked what a reasonable planning authority, correctly addressing law and policy, could have been expected to decide at the valuation date.
2. Development-plan interpretation and land use. Policies were interpreted objectively and in context. The Tribunal treated policy B1 and site allocation SA4.2 as protecting the appeal site for predominantly employment-generating uses. The proposed residential-led schemes placed substantial housing in the heart of the employment designation and failed to focus business and retail uses in the northern part of the allocation. They therefore conflicted with London Plan policy 4.4 and policies B1 and SA4.2. Housing-supply and affordable-housing benefits did not outweigh that conflict.
3. Height, heritage and townscape. The schemes exceeding the 15-metre generally expected height were tall buildings under policy BN.10. The 52-metre tower, and probably the 42.6-metre towers, would cause moderate to high less-than-substantial harm to the Sugar House Lane Conservation Area and a significant adverse effect on a key view. The residential middle terrace failed to respect the scale and grain of the context and did not provide sufficiently accessible public space. These matters breached policies BN.1, BN.9, BN.10 and BN.16.
4. Appropriate alternative development. The Tribunal concluded that appropriate alternative development would comprise wholly non-residential uses in three detached blocks. It allowed one block at the High Street frontage to rise to 29.1 metres and the southern block to rise to 25.1 metres. The development was subject to planning contributions, including £164,280 CIL and contributions towards the junction and bridges, totalling £811,577 subject to indexation.
5. The parties were invited to agree the form and conditions of the substituted certificate and a timetable for costs. Unresolved matters would be determined by the Tribunal without a further hearing.

Newham issued a nil certificate under section 17 of the Land Compensation Act 1961 on 20 February 2023.

Upper Tribunal (Lands Chamber) allowed the appeal, cancelled the nil certificate and directed substitution of an alternative certificate.