The Secretary of State for Transport v Birmingham City University

In determining a certificate of appropriate alternative development, the Tribunal must assess a defined hypothetical planning application on its own merits, applying ordinary planning principles subject to the statutory cancellation assumption. A flexible menu which leaves the developer free to select uses without securing a proper mix may be inconsistent with the development plan. Large Eastside sites require an appropriate variety of uses, although the plan does not prescribe an identical mix for every site. Harm to a highly significant heritage asset requires clear and convincing justification and must be weighed against public benefits. Where harm can be materially reduced by omitting an unnecessary element, that alternative is relevant. Appropriate floorspace, phasing and design conditions may cure uncertainty and secure compliant mixed-use development.

The Secretary of State appealed under section 18 of the Land Compensation Act 1961 against a certificate granted by Birmingham City Council for mixed-use development on land at New Canal Street, Eastside, Birmingham. The land had been acquired for HS2 and the certificate was assessed by reference to the statutory cancellation assumption.

The Council’s certificate permitted a flexible range of uses, including substantial student accommodation, residential, office, retail, education, hotel, theatre and concert hall space. The Secretary of State proposed a more modest scheme. Birmingham City University advanced five defined development scenarios, including student-led and residential-led schemes. The central issues were whether the proposed uses and flexibility complied with the development plan, whether the height and number of towers caused unacceptable harm to heritage assets, and what conditions were required.

1. Outcome. The Secretary of State’s appeal was allowed. The Tribunal substituted a certificate, subject to a draft being submitted, for mixed-use development of up to 82,805 sqm comprising retail, residential, PBSA and office floorspace.
2. CAAD assessment. A certificate must be determined by applying normal planning principles to a hypothetical planning application, with circumstances shaped by the cancellation assumption but otherwise reflecting the real facts known at the valuation date. Applications for adjoining CAAD sites were not themselves relevant circumstances. Each proposal had to be assessed on its own merits, although evidence of alternative forms of development could be relevant to reducing heritage harm.
3. Mixed uses. Applying Quintain City Park Gate Birmingham Ltd v Secretary of State for Transport [2025] UKUT 312 (LC), the development plan required variety and diversification in the context of a large and important Eastside site. It did not require every development to contain every identified use. A proposal effectively devoting the whole site to PBSA, with only minimal retail, would not secure mixed-use development or a sustainable neighbourhood.
4. Flexibility and conditions. The Council’s menu-based certificate was unacceptable because its advantages and disadvantages could not properly be measured and it did not secure minimum residential or office provision. The defect could be cured by conditions defining maximum and minimum floorspace, requiring each building to have a single use, controlling height and layout through parameter plans, and securing appropriate phasing.
5. Heritage balance. The twin towers would cause less than substantial harm at the lower end of the scale to the setting of the grade I listed Principal Building. Great weight was required to be given to conservation, and the availability of a single-tower alternative materially reduced the justification for the additional harm. The public benefits outweighed the reduced harm from the single-tower variants, but not the harm from the twin-tower schemes. No unacceptable harm was found to the Warwick Bar conservation area.
6. The substituted certificate required at least 1,416 sqm of retail, 11,000 sqm of residential and 10,794 sqm of office floorspace. The residential element was also required to include at least 35% two-bedroom units.

1. Birmingham City Council: Certificate granted on 31 July 2019 for flexible mixed-use development on the Appeal Site.
2. Upper Tribunal (Lands Chamber): The Secretary of State’s appeal under section 18 of the Land Compensation Act 1961 was allowed and a revised certificate was substituted.