The Secretary of State for Transport v Quintain City Park Gate Birmingham Limited & Ors

In assessing planning need for purpose-built student accommodation, a decision-maker should normally consider the relevant functional area, including both city-wide need and any localised need. The assessment should reflect the relationship between purpose-built accommodation, privately rented accommodation and wider housing need. Existing HMOs and other rented accommodation should not automatically be treated as equivalent supply, because additional purpose-built accommodation may release housing for the general market.

Future student growth is a relevant consideration, but precise numerical projections are not always necessary. The question is whether need has been demonstrated for at least the scale of the proposed development, applying the relevant planning policy and evidence available to a reasonable decision-maker.

The Secretary of State acquired four neighbouring sites at Eastside, Birmingham, for HS2. The former owners sought certificates of appropriate alternative development under section 17 of the Land Compensation Act 1961. The certificates, or appeals against non-determination, included purpose-built student accommodation.

The parties agreed a preliminary issue concerning the level of planning need for purpose-built student accommodation at the valuation dates in March, July, August and September 2018. The Tribunal was also asked to record agreed distances and travel times, but the parties had reached agreement on that limb. The central issue was whether a reasonable planning authority applying Policy TP33 of the Birmingham Development Plan would have found a demonstrated need for further purpose-built student accommodation.

1. The Tribunal determined the preliminary issue in favour of the respondents. A substantial need for further purpose-built student accommodation had been demonstrated at each valuation date, and the first bullet point of Policy TP33 would not have prevented the proposed developments.

2. On an appeal under section 18(2) of the Land Compensation Act 1961, the Tribunal exercises an original jurisdiction rather than a review jurisdiction. It must put itself in the position of a reasonable decision-maker, determine the meaning of the relevant planning policy for itself and apply it correctly. This followed the approach explained in Leech Homes Ltd v Northumberland County Council [2021] EWCA Civ 198, approving the Tribunal’s earlier decision.

3. The assessment had to apply ordinary planning principles, having regard to the development plan and determining the matter in accordance with it unless material considerations indicated otherwise. Evidence of the local planning authority’s actual decisions could be relevant and persuasive, consistently with Urban Edge Group Ltd v London Underground Ltd [2009] UKUT 103 (LC).

4. The relevant functional assessment area was Birmingham as a whole, although localised need and the suitability of the particular site also required consideration. Policy TP33 did not require need to be confined to a pre-defined sub-market. Student housing markets were fluid, and provision in one location could release accommodation elsewhere.

5. A reasonable planning authority would take account of future growth in student demand. The Tribunal preferred evidence indicating that growth would exceed the historic rate. It was not necessary, however, to quantify growth precisely over the entire development-plan period, particularly where reliable evidence of future supply was limited.

6. HMOs and other privately rented accommodation could not simply be counted as equivalent existing supply. Purpose-built accommodation could release private rented housing for wider housing needs. Nevertheless, it was unrealistic to assume that every student not living at home would demand purpose-built accommodation.

7. The evidence showed a substantial shortfall even on conservative assumptions. The Tribunal therefore concluded that need had been demonstrated for considerably more accommodation than any one Eastside site could provide. The final certificates and compensation issues remained for later determination.

The judgment concerned five related references and appeals concerning certificates of appropriate alternative development and appeals against non-determination. The Tribunal determined the agreed preliminary issue concerning planning need. Any appeal lies to the Court of Appeal on a point of law with permission.