Secretary of State for Transport v Curzon Park Limited

For a certificate of appropriate alternative development, the cancellation assumption does not exclude real-world facts which were unknown at the valuation date. It excludes only specified acts and works undertaken for the cancelled scheme. A notional planning application must be treated as complying with the information requirements of the planning authority. Where a site has potential to contain heritage assets of archaeological interest, and existing information is insufficient to assess their extent, condition or significance, a reasonable decision maker may require intrusive field evaluation before determining the application. The Tribunal must decide for itself what the relevant planning policy means and apply it correctly. Development proposals must then be assessed on their own merits, including their effects on heritage assets and the adequacy of proposed conditions.

The Secretary of State appealed against a certificate of appropriate alternative development granted by Birmingham City Council to Curzon Park Ltd following the compulsory acquisition of the site for HS2. The certificate contemplated a mixed-use development of up to 181,260 square metres in buildings of up to 41 storeys.

After the valuation date, archaeological investigations revealed substantial remains of the 1837 Curzon Street Roundhouse. The central issue was whether, applying the statutory assumptions under the Land Compensation Act 1961, a notional planning application would have required prior intrusive archaeological evaluation and, if so, what development would probably have obtained permission.

1. Appeal allowed. The certificate was not confirmed. The Tribunal would substitute a certificate for the Secretary of State’s scheme and a modified version of CPL’s Roundhouse Retained Scheme.
2. The cancellation assumption under section 14(5) of the Land Compensation Act 1961 required the Tribunal to disregard actions taken by HS2 after cancellation for the purposes of the scheme. It did not require the Tribunal to disregard the actual extent and condition of the Roundhouse remains, which were facts unknown at the valuation date.
3. The reality principle required valuation against the real-world background, subject to statutory assumptions. Section 14(4)(b) also required an inherent assumption that the notional planning application had been properly prepared and complied with the local planning authority’s information requirements.
4. Applying the planning policies in force at the valuation date, a reasonable decision maker would have required intrusive archaeological evaluation. The site had potential to contain heritage assets of archaeological interest, the proposed development placed any remains at risk, and the existing desk-based information was insufficient to assess their extent, condition and significance. Trial trenching would have revealed the Roundhouse remains. A condition postponing investigation until after permission was granted would not have been appropriate.
5. Under [2021] EWCA Civ 198, the Tribunal had to determine for itself the meaning and application of the relevant planning policy, rather than replicate the likely approach of the local authority. If the Roundhouse remains were known, only the Secretary of State’s scheme and the Roundhouse Retained Schemes could have secured permission. The 41-storey and 32-storey Block J designs were acceptable, but the additional 21-storey Block H, the lower Block J variants and the revised doughnut form of Block G were not.
6. The acceptable variant required retention of the Roundhouse, a 10-storey Block H in the Roundhouse Retained Scheme position, and Block G in its original U-shaped form. Minimum floorspace requirements, single principal uses for each block, and appropriate phasing conditions were necessary to secure a genuine mixed-use development.

• Upper Tribunal (Lands Chamber): allowed the Secretary of State’s appeal against Birmingham City Council’s certificate and directed substitution of certificates for specified alternative development schemes.