COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE BLAKE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE RIMER
| ROOFF LIMITED
|- and -
|SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT
|- and -
|LONDON DEVELOPMENT AGENCY
||1st Interested Party
|- and -
|NEWHAM LONDON BOROUGH COUNCIL
||2nd Interested Party
Daniel Kolinsky (instructed by Treasury Solicitors ) for the Respondent
Guy Roots QC (instructed by Messrs. Eversheds) for the 1st Interested Party
No appearance for the 2nd Interested Party
Hearing dates : Monday 4th & Tuesday 5th April, 2011
Crown Copyright ©
LORD JUSTICE CARNWATH :
"10. The task of the local authority is to treat an application for a certificate as if it were a planning application, but a planning application based on the hypothesis that the development that caused the compulsory purchase order was not going to take place. Although the application can contemplate future development the applicant must identify the times at which such development could be appropriate; where the development proposed by the applicant is not immediately appropriate, therefore, the circumstances in which it would be would have to be identifiable and foreseeable." (para 10)
It should be added that, in a case where there is a possibility that the land might be developed as part of a larger area of land, including land not in the applicant's ownership or control, that possibility must be considered and, if appropriate, reflected in the certificate (Sutton v Secretary of State (1984) 50 P&CR 147). However, the certificate issued by the Secretary of State in this case contained no indication that the site could only be developed in conjunction with other land.
i) Where a certificate states that planning permission for any classes of development would have been granted on all or part of the land, it is to be assumed that permission "would be so granted"; but subject to any conditions specified in the certificate, and (if applicable) only at the future time specified in the certificate (s 15(5)).
ii) Where a certificate indicates that permission for a class of development would not be granted, the tribunal is not precluded from itself considering whether planning permission could reasonably have been expected to be granted, but for that purpose "regard shall be had" to any contrary opinion expressed in the certificate (s 14(3A)).
iii) Nothing in these provisions is to be read as requiring the tribunal to assume that planning permission would necessarily be refused for any class of development (s 14(3)). Accordingly, even apart from the statutory planning assumption arising from a certificate, it remains open to the owner to seek to prove before the tribunal that permission for some form of valuable development would, or would reasonably have been expected to be, granted in the "no-scheme world".
It is to be noted, however, that for valuation purposes there may be a significant difference between a statutory certificate, and a finding by the tribunal that permission was to be expected. In the former case, the assumed permission is treated as a certainty for valuation purposes. In the latter case, the value of the assumed permission may need to be discounted to reflect the relative uncertainty in the no-scheme world of an actual grant (see Spirerose v Transport for London  UKHL 44;  1 WLR 1797).
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how the issue of law or fact was resolved…. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he is genuinely substantially prejudiced by the failure to provide an adequately reasoned decision."
The appeal site and surroundings
"…To the east was Thatched House Yard, dominated by the maintenance and repair of motor vehicles. Caerns Yard to the west was similarly characterised by various units occupied by motor vehicle enterprises. On the southern side of Carpenters Road was a vehicle breaking business and a yard used for the storage of aggregates of this storage industry. Other plots on the south side of the Carpenters Road had already gone out of use but their rundown appearance added to the generally down-at-heel nature of the locality. The railway line on the northern boundary of the land carried frequent freight trains. They often stopped at signals on the line waiting for slots between the frequent passenger trains on the main line out of Liverpool Street station. The noise of accelerating mainly diesel freight locomotives hauling laden and unladen trucks around a tight bend in the tracks and over point work generated significant noise levels on the appeal site." (para 157)
"… a very large comprehensive mixed-use development currently under construction and encompassing the as yet unopened Stratford International station sited on the High Speed Channel Tunnel Rail Link." (para 4)
He noted that this development had been granted planning permission in February 2005, that there were detailed permissions for the construction of access roads to it from Carpenters Road, and that the local authority had indicated willingness to use compulsory purchase powers for that purpose:
"By the relevant date, road proposals affecting the surroundings of the appeal site had been agreed in principle. These involved realignment of Carpenters Road in the direction of a bridge across the railway line on the site of Thatched House yard. On the other hand, the appeal site would have remained essentially intact, served by a short service cul-de-sac of the realigned Carpenters Road."
"Because of its proximity to the site (12 metres in places) the new elevated road over the railway line could be seen as a further detraction from residential development on the site…" (para 158)
"…wherever increases in office floor are proposed they should provide for a mix of uses including housing, unless such a mix would demonstrably conflict with other policies in this plan…"
"Proposed land uses: This site forms a key gateway into the Rail Lands and requires development of the highest quality to reflect this. The Council is seeking a mixed-use employment led scheme in accordance with the UDP designation, which include B1, B2 and supporting residential uses set within high quality landscaping. The close proximity to the Waterworks River provides an ideal opportunity to create residential units fronting onto it. Any residential development should include a mix of unit sizes and provide an element of affordable housing in accordance with Council's UDP policies…"
Other uses, such as B8 (storage) and waste transfer facilities were deemed "inappropriate… due to the proximity of residential properties and the objective to create a high quality environment…".
"The Rail Lands offer considerable scope for new residential development and the potential to create an entirely new community.
Residential development should form both an element of a mixed use scheme and single use developments…."
The Carpenters Road area was referred to as one offering "scope to create concentrations of new residential development", which could include "specialist housing" such as business flats, student accommodation or private apartments for key workers. It added:
"… Where new residential development occurs it should take advantage of proximity to the existing Lee Valley Regional Park and adjacent rivers and waterways and link or draw these features into the schemes. A larger residential population will also increase the demand for an extended range of social facilities to the benefit of the wider area."
"Where there is little disagreement between the parties (and it is a consensus with which I concur) is that the state of the land and surroundings, by themselves, were not suited to any form of residential development on the relevant date, as determined alone by the pattern of development existing at that time. However, the policy framework that had developed over the previous five years indicated that the site and its surroundings were not going to stay the same with or without the Olympic Games being held in London in 2012."
He identified the issue between the parties as he saw it:
"The question therefore to be determined is whether those changes from the previous pattern of development were going to be so drastic, prior to the award of the Games in London, as to permit residential development to be reasonably foreseeable on the appeal site, as postulated by the appellants, or whether those changes would result in a continuation essentially of employment uses on this land, albeit following redevelopment, as argued by the local planning authority and the acquiring authority…."
Against that background he turned to consider the policy framework for the period 2000-2005, which he thought "should, in this particular case determine the outcome of this appeal."
"170. Drawing these somewhat dispersed policy threads in the 2020 Vision Supplementary Planning Guidance together, it seems to me that a logical overall pattern, to determine the outcome in this appeal, can be discerned. In the no-scheme world of Carpenters land, mixed comprehensive development, incorporating a significant amount of housing but primarily employment generating led, could take place in the locality even before Stratford City had taken off. The housing element would tend to gravitate towards the attractive waterside location of the Waterworks River where its potentially quick implementation would bring about significant improvements to the waterway's landscape qualities and the provision of important new pedestrian and cycle links…."
"171. The need for comprehensive development would seriously count against the development of the appeal site in isolation. Were it to come forward for redevelopment in a more piecemeal manner, the land's inability to benefit from a waterside location, coupled with proximity of the freight-carrying railway line even with adjoining "bad neighbour" commercial uses removed, would militate against its development for part of the significant residential element on the Carpenters land as a whole.
172. It may be that an all-office development on the appeal site, which would not be in breach of the CAAD issued by the council, would require a proportion of residential accommodation in accordance with London Plan Policy 3B.4. 
It may also be the case that, contrary to the guidance expressed in the 2020 Vision Supplementary Planning Guidance, early redevelopment of the Carpenters land did not take place and a landmark building incorporating a preponderance of residential accommodation could be erected in isolation to act as a suitable gateway to Stratford City adjoining its approach road and kick starting redevelopment in the remainder of the Carpenter lands. 
However, the advice in paragraph 8 of Appendix P to Circular 06/2004 is that general policies of the development plan should be followed, so that small pockets of residential provision associated with office development can be disregarded for the purposes of issuing a certificate.
Moreover, paragraph 16 requires a decision to be based on the current and reasonably foreseeable policies prior to the cancellation of the scheme, not a development that deliberately ignored such policies to simply stimulate redevelopment that was otherwise showing signs of severe delay in getting off the ground."
(For ease of reference I have split the paragraph into its four sentences. It is common ground that the first two sentences are to be taken separately, referring respectively to separate parts of the appellant's case as previously summarised by the inspector (see para 20 above). They are then answered in turn in the third and fourth sentences.)
"… the Secretary of State would expect the local planning authority to exercise its planning judgement, on the basis of the absence of the scheme, taking into account those factors which would normally apply to consideration of planning applications e.g. the character of the development in the surrounding area, any general policy of the development plan, and national planning policy along with other relevant considerations where the site raises more complex issues which it would be unreasonable to disregard. Only those forms of development which for some reason or other are inappropriate should be excluded. Local planning authorities will note from section 17(7) that their certificate can be at variance with the use shown by the development plan for the particular site." (emphasis added)
The other reference is to paragraph 16 of the same Appendix, which summarises the "three main issues" to be addressed in determining an application under section 17: (a) the physical considerations; (b) "the current and reasonably foreseeable planning policies"; and (c) identifying and disregarding the planning consequences of the scheme.
The Issues in the Appeal
"33. I note that paragraph 172 is prefaced by the word may. The question for the inspector is would such planning permission be granted. In that context I accept the defendant's submission that what was going on in this paragraph is some engagement with the alternative or further submissions advanced by the claimant at the inquiry. But once the central hypothesis of overall comprehensive development of both the Stratford City area and the adjacent Carpenters Road lands is put aside, then the claimant's case necessarily becomes very much weaker and more speculative as to the degree of reasonable likelihood there would be of either adverse factors disappearing or positive factors emerging. (The judge's emphasis)
34. In any event the contention that was being addressed in paragraph 172 depended upon 3B.4 having some mandatory requirement to add residential space to any new stand alone office building, but the policy properly construed imposes no such requirement independent of environmental considerations or planning proposals for the area. Thus even if the appeal site were to be examined as the first piece of land on which planning permission would be granted its unsuitability for residential accommodation remained. The planners would also be able to identify that development plans for the rest of the land (even if not yet implemented) would provide ample accommodation for residential needs in more suitable areas particularly (though not necessarily exclusively) the waterside area.
35. This is perhaps the thread of the reasoning in 172, but even if the inspector's reasons failed the standards of clarity required by the South Bucks v Porter decision, I conclude no detriment has been suffered by the claimant for the reasons set out in the preceding paragraphs of this judgment."
"…In the real world, both authorities, the planning authority and the regeneration authority, would have welcomed a scheme that would have secured the beneficial redevelopment of the appeal site. Far from seeking to frustrate and defer development that would get the regeneration process moving, they would have done all in their power to bring it to fruition…." (para 46)
The Development Plan
LORD JUSTICE RIMER :
LORD JUSTICE LONGMORE :