The Eastside Partnership Nominee Company Limited & Anor v The Secretary of State for Transport

In determining a Certificate of Appropriate Alternative Development, the acceptability of a single or dominant use is site-specific. Development-plan policies favouring mixed-use development do not require every site to contain the same mix, or to include every identified use. A wholly purpose-built student accommodation scheme may therefore be acceptable where the site’s location, physical characteristics and surrounding uses support it.

Less than substantial heritage harm may be outweighed by the public benefits of appropriate alternative development. However, development adjoining a canal may be unacceptable where its massing creates a continuous, overbearing frontage or dominates the canal’s linear character.

Two references concerned land acquired for HS2 in Birmingham. Eastside applied to Birmingham City Council for a Certificate of Appropriate Alternative Development under section 17 of the Land Compensation Act 1961. The Council failed to determine the first application, creating a deemed negative certificate, and later issued a certificate for a revised scheme.

Eastside appealed against the deemed certificate. The Secretary of State appealed against the issued certificate. The principal issues were whether a wholly or predominantly purpose-built student accommodation scheme was acceptable, what scale and massing would have obtained planning permission, and whether any heritage harm was outweighed by public benefits.

1. Outcome. The Secretary of State’s appeal against the issued certificate was dismissed. Eastside’s appeal against the deemed negative certificate was allowed, but only to the extent that the 2020 CAAD Scheme represented appropriate alternative development.
2. Mix of uses. The Tribunal applied the site-specific approach stated in Quintain City Park Gate Birmingham Ltd v Secretary of State for Transport [2025] UKUT 312 (LC). Development-plan policies favoured variety and balance, but did not require every development to contain a mix of uses. Given the Appeal Site’s self-contained location, its proximity to existing student accommodation and education-related uses, and its relative separation from the city centre, a purely PBSA scheme with some retail would have been consistent with the development plan.
3. Design and heritage. A 24-storey tower at the northern end of the site was acceptable in principle. The canal-side blocks had to be limited to seven storeys. Continuous nine-storey frontages close to the canal, together with the proposed 14-storey element, would be overbearing and would dominate the scene. The varied 2019 proposal was therefore unacceptable.
4. Planning balance. Any less than substantial harm to the setting of the Warwick Bar Conservation Area would have been outweighed by the public benefits of the 2020 CAAD Scheme. The availability of smaller-scale alternatives was not material in the circumstances.
5. Certification. The 2020 CAAD Scheme, corrected to provide 31,187 square metres of floorspace, was appropriate alternative development. The Secretary of State’s Scheme was also appropriate alternative development, but the proposed intermediate variants were not certified.

• Birmingham City Council: failed to determine Eastside’s first CAAD application, resulting in a deemed negative certificate, and later issued a certificate for the revised 2020 CAAD Scheme.
• Upper Tribunal (Lands Chamber): Eastside’s appeal against the deemed certificate was allowed to the extent stated, and the Secretary of State’s appeal against the issued certificate was dismissed.