Secretary of State for Transport v John Lewis Partnership Pensions Trust

In the statutory “cancelled scheme world”, the Tribunal must apply the real-world facts, policies and planning permissions at the valuation date, subject only to the narrow disregards required by section 14(5) of the Land Compensation Act 1961. It must not edit policies, reduce their stated targets, give them less weight because they would have been reconsidered, or speculate about what would have happened after cancellation.

Policies independently directed to the de-designation of strategic industrial land remained material considerations capable of supporting residential development in principle. Permission nevertheless depended on the particular scheme. Noise, air quality, open-space provision, access to schools, and the plan-led approach to tall buildings and density made the residential schemes proposed unsuitable. A certificate of appropriate alternative development was therefore granted for the acquiring authority’s commercial scheme.

The Secretary of State appealed under section 18 of the Land Compensation Act 1961 against a certificate granted by the London Borough of Ealing under section 17. The certificate stated that residential development comprising 722 dwellings and commercial space would have been appropriate alternative development on land compulsorily acquired for HS2.

The reference land was designated strategic industrial land at the agreed valuation date of 23 December 2017. The parties disputed whether residential development could be permitted in the cancelled scheme world, and, if so, whether the proposed height, density, design and mitigation measures were acceptable. The Tribunal had to determine whether the CAAD scheme, either reduced-height alternative, or the appellant’s commercial proposal satisfied the statutory test.

1. Outcome. The appeal was determined by the Tribunal’s own decision-making jurisdiction. Neither the CAAD residential scheme nor either reduced-height alternative was appropriate alternative development. A CAAD was granted for the appellant’s proposed commercial scheme.
2. Cancelled scheme world. Applying Secretary of State for Transport v Curzon Park Limited [2023] UKSC 30, the cancellation assumption was narrow. The Tribunal had to take the real-world position at the valuation date, subject only to the statutory disregards. Buildings, permissions and policies remained, even if they would have been different without the scheme. Policies forming part of the scheme were disregarded, but policies with an independent function remained.
3. The Tribunal rejected attempts to edit Annex 1 to the London Plan 2016, reduce its housing or employment figures, give it limited weight because it would have been reconsidered, or construct a timetable for policy reconsideration. The policy for de-designation of strategic industrial land at Old Oak Common was not part of the scheme and therefore remained a material consideration indicating that residential development could in principle have been permitted.
4. The proposed schemes nevertheless failed on their particular planning merits. The evidence showed that noise from the neighbouring Quattro waste site would dominate external amenity areas. Internal mitigation would effectively seal residents behind winter gardens and closed windows, contrary to local amenity policy. Air quality was also unresolved, and the proximity of the residential blocks risked complaints compromising the continuing industrial use.
5. The schemes also suffered from serious shortfalls in children’s play space and public open space, poor access to parks, and difficult access to the nearest primary school. These matters independently reinforced the conclusion against residential development.
6. The Tribunal further observed that tall buildings and high density had to be plan-led. In the cancelled scheme world the site was not designated for tall buildings or high-density development. Without the scheme-dependent station cluster and high street, the proposed towers lacked a sufficient function and appeared intrusive. A lower-rise residential form might have been acceptable on height, but no residential scheme before the Tribunal overcame the noise and amenity difficulties.

• London Borough of Ealing: granted a certificate under section 17 of the Land Compensation Act 1961 certifying the proposed residential development as appropriate alternative development.
• Upper Tribunal (Lands Chamber): on the Secretary of State’s appeal under section 18, rejected the certified residential scheme and the alternatives and granted a CAAD for the appellant’s commercial proposal.