United Kingdom Upper Tribunal (Lands Chamber)

UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2014] UKUT 0408 (LC)

UTLC Case Number: ACQ/80/2013

                                                                             

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

COMPENSATION – planning permission – certificate of appropriate alternative development – section 17 application for “full open market residential” – section 18 appeal against a nil certificate – development plan – imminent revocation of saved structure plan policies at relevant valuation date – emerging local plan policies  – material considerations – National Planning Policy Framework – appeal allowed – sections 14, 17 and 18 of Land Compensation Act 1961

 

 

                               IN THE MATTER OF A NOTICE OF REFERENCE

 

 

BETWEEN                                        TESCAN LIMITED                                       Appellant

 

 

                                                                           and

 

 

                                                        CORNWALL COUNCIL                               Respondent

 

 

 

Re:Land at 78 Carn Brea Lane,

Pool,

                                                                Redruth,

                                                                Cornwall TR15 3DS

 

 

Determination on the basis of written representations

 

by

 

A J Trott FRICS

 

 

 

 

© CROWN COPYRIGHT 2014

 

 

The following decisions are referred to in this decision:

 

Fletcher Estates (Harlescott) Ltd v Secretary of State [2000] 2 AC 307

Rooff Ltd v Secretary of State [2011] EWCA Civ 435

Harringay Meat Traders Ltd v Secretary of State and Others [2012] EWHC 1744 (Admin)

Tesco Stores Limited v Dundee City Council [2012] UKSC 13

City of Edinburgh v Secretary of State for Scotland [1997] 1WLR 1447

Tesco Stores Limited v Secretary of State for the Environment and Others [1995] 2 All ER 636

Porter v Secretary of State for Transport [1996] 3 ALL ER 393

 

 

 

DECISION

1.             On 22 November 2012 the Secretary of State for Transport confirmed with modifications the Cornwall Council (Camborne Pool Redruth) (Highway Improvements) Compulsory Purchase Order 2011 ("the order").

2.             Tescan Limited ("the appellant") is the freehold owner of land at and adjoining 78 Carn Brea Lane, Pool, Redruth, Cornwall TR15 3DS that was included in the order.  On 19 March 2013 the appellant made an application to Cornwall Council ("the respondent" or "the council") for a certificate of appropriate alternative development under section 17 of the Land Compensation Act 1961 in respect of the land described as "Tescan site (industrial), 78 Carn Brea Lane (residential)" and shown edged red on an attached plan.  The appellant said that were the land not proposed to be acquired by the respondent it would be appropriate for development as "full open market residential".

3.             In a covering letter dated 5 March 2013 the appellant stated:

          "The entire plot of land shown edged in red is in the ownership of Tescan Ltd and Tescan Pension Fund Ltd and includes the dwelling house No. 78 Carn Brea Lane.  It is proposed that the existing dwelling should be demolished to make way for a flat development with the car parking positioned on the Tescan site which, although it is currently industrial use, because of the adjacent ownership could be designated to the new residential development."

4.             On 16 May 2013 the council certified that were it not proposed to acquire the land compulsorily neither "full open market residential" development nor any other development would constitute appropriate alternative development for the purposes or section 14 of the 1961 Act.  In its statement of reasons the council said that the majority of the site (identified on a plan as being that part of the site excluding the house and garden at 78 Carn Brea Lane) "should remain in use, and allocated for industrial/employment purposes within Pool Industrial Estate, including circulation, access, parking and ancillary operations...".  Residential use would not be acceptable because it would encroach onto established and safeguarded employment land the proximity of which could harm the future amenity and living standards of incoming residents.  The council said that the introduction of the proposed residential use would be contrary to (i) the National Planning Policy Framework ("NPPF") 2012; (ii) various saved policies of the Cornwall Structure Plan 2004; and (iii) certain emerging policies of the Cornwall Local Plan Strategic Policies (2010-2030): pre-submission document, March 2013.

5.             The appellant appealed against the council's decision under section 18 of the 1961 Act on 17 June 2013.

6.             The appellant also seeks "a declaration as to the validity and meaning" of an earlier certificate issued by the respondent on 29 June 2012 following an application made by the appellant under section 17 of the 1961 Act on 3 April 2012.  No appeal was made against the earlier decision and the meaning and effect of the certificate then issued by the respondent is outside the scope of the present appeal and is not considered further in this decision.

7.             Written representations have been made on behalf of the appellant by Stephens Scown LLP solicitors and on behalf of the respondent by the council's housing and litigation department.

Facts

8.             The appeal site is located to the south of Pool, approximately mid-way between Camborne and Redruth.  It lies to the south of the junction of Farnborough Lane and Wilson Way.  There is residential development to the west, Tescan Industrial Estate to the east and the Pool Industrial Estate to the north.  The site is generally flat and comprises an existing dwelling house and garden (78 Carn Brea Lane) to the north west, access from Wilson Way to the north east and the remainder of the site comprising open hard standing areas, and a boundary wall to the north.  Facing the site to the east are the entrances to four units on the Tescan Industrial Estate.  Neither party has provided a measurement of the site area.

9.             It is a brownfield site in a sustainable location forming a transition area between the residential development to the west and the industrial estate to the east.  Not all of the appeal site is subject to the order.  The house at 78 Carn Brea Lane is not to be acquired, although parts of its garden (plots 2/12 and 2/12B) are subject to compulsory purchase.

Statutory provisions

10.         On an appeal to the Upper Tribunal under section 18 of the 1961 Act, as amended by section 232(3) of the Localism Act 2011 (“the 2011 Act”), the Tribunal "must consider the matters to which the certificate relates as if the application for a certificate under section 17 had been made to the Upper Tribunal in the first place."  (Section 18(2)(a)).  Section 17(1) requires the local planning authority (or, on appeal, the Upper Tribunal) to certify whether or not "there is development that, for the purposes of section 14, is appropriate alternative development in relation to the acquisition."

11.         Section 14 of the 1961 Act, as amended by the 2011 Act, states:

          "(1) This section is about assessing the value of land in accordance with rule (2) in section 5 for the purpose of assessing compensation in respect of a compulsory acquisition of an interest in land.

          (2) ...

          (3) In addition, it may be assumed -

(a) that planning permission is in force at the relevant valuation date for any development that is appropriate alternative development to which sub-section 4(b)(i) applies, and

(b) that, in the case of any development that is appropriate alternative development to which subsection (4)(b)(ii) applies and subsection (4)(b)(i) does not apply, it is certain at the relevant valuation date that planning permission for that development will be granted at the later time at which at that date it could reasonably have been expected to be granted.

          (4) for the purposes of this section development is "appropriate alternative development" if -

(a) it is development, on the relevant land alone or on the relevant land together with other land, other than development for which planning permission is in force at the relevant valuation date, and

(b) on the assumptions set out in sub-section (5) but otherwise in the circumstances known to the market at the relevant valuation date, planning permission for the development could at that date reasonably have been expected to be granted on an application decided -

(i) on that date or

                        (ii) at a time after that date."

The effect of these provisions is that the Upper Tribunal must consider whether development is appropriate alternative development by reference to the "relevant valuation date" as defined in section 5A of the 1961 Act.  In this appeal the parties have agreed that the relevant valuation date is 28 February 2013.

12.         Section 70 of the Town and Country Planning Act 1990 (“the 1990 Act”) sets out the general considerations for the determination of planning applications.  It provides in sub-section (2) that:

          "In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application and to any other material considerations."

13.         Section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) states:

“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”

 

Planning Policy

14.         The following planning policies are referred to by the parties and are relevant in this appeal.

National Planning Policy Framework (“NPPF”)

15.         Although the starting point for decision making remains the development plan, the NPPF "constitutes guidance for local planning authorities and decision-takers both in drawing up plans and as a material consideration in determining applications" (paragraph 13).  The main emphasis of the NPPF is a presumption in favour of sustainable development “which should be seen as a golden thread running through both plan-making and decision-taking” (paragraph 14).  The NPPF then sets out in paragraph 17 a list of twelve core land-use planning principles which should underpin both plan-making and decision-taking.  In summary, insofar as they are relevant to this appeal, those principles are that planning should:

·           Be plan-led, providing a practical framework on which to make decisions on planning applications with a high degree of predictability and efficiency;

·           Proactively and objectively "drive and support" sustainable economic development to deliver the necessary homes, business and industrial units and infrastructure while setting a clear strategy for allocating sufficient land which is suitable for development;

·           seek to secure high quality design and a good standard of amenity for all existing and future occupants of land and buildings;

·           contribute to conserving and enhancing the natural environment and reducing pollution.  Allocations of land for development should prefer land of lesser environmental value, where consistent with other policies in the NPPF;

·           encourage the use of brownfield land provided that it is not of high environmental value;

·           promote mixed use developments;

·           focus significant development in locations which are or can be made sustainable.

16.         The NPPF goes on to consider how sustainable development should be delivered by examining thirteen different topics of which numbers 1 (building a strong, competitive economy) and 6 (delivering a wide choice of high quality homes) are the most relevant to this appeal.  These are considered in turn.

(i)  Economy

17.         Paragraph 18 of the NPPF stresses the Government's commitment to securing economic growth in order to create jobs and prosperity.  Paragraph 19 states:

"The Government is committed to ensuring that the planning system does everything it can to support sustainable economic growth.  Planning should operate to encourage and not act as a impediment to sustainable growth.  Therefore significant weight should be placed on the need to support economic growth through the planning system."

18.         Local planning authorities are urged in paragraph 21 to:

          "Set out a clear economic vision and strategy for their area which positively and proactively encourages sustainable economic growth."

Existing business sectors should be supported but policies should be flexible enough to accommodate needs not anticipated in the plan and to allow a rapid response to changes in economic circumstances.

19.         Paragraph 22 states:

          "Planning policies should avoid the long-term protection of sites allocated for employment use where there is no reasonable prospect of a site being used for that purpose.  Land allocations should be regularly reviewed.  Where there is no reasonable prospect of a site being used for the allocated employment use, applications for alternative uses of land or buildings should be treated on their merits having regard to market signals and the relative need for different land uses to support sustainable local communities."

(ii)  Housing

20.         To boost significantly the supply of housing the NPPF says that local planning authorities should use their evidence base to ensure that their local plan meets the full objectively assessed needs for market and affordable housing.  They should identify and update annually a supply of specific deliverable sites sufficient for five years worth of housing requirements with an additional buffer of 5%.  They should also identify a supply of specific deliverable sites or broad locations for growth for years 6-10 and, where possible, years 11-15 (paragraph 47).

21.         Paragraph 49 states:

          "Housing applications should be considered in the context of the presumption in favour of sustainable development.  Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites."

22.         Paragraph 51 states that local planning authorities:

“should normally approve planning applications for change to residential use and any associated development from commercial buildings (currently in the B use classes) where there is an identified need for additional housing in that area, provided there are not strong economic reasons why such development would be inappropriate.”

Cornwall Structure Plan: status

23.         The council relied upon four saved policies in the Cornwall Structure Plan 2004 in its decision not to grant a certificate of appropriate alternative development.  That decision was made on 16 May 2013.  On 20 May 2013 the Regional Strategy for the South West (Revocation) Order came into force under which the directions preserving the structure plan policies were revoked.

24.         For the purposes of determining whether there is any appropriate alternative development it is necessary for the Tribunal to make the assumptions required by section 14(5) of the 1961 Act and to consider the circumstances known to the market at the relevant valuation date.  That date in this appeal is agreed to be 28 February 2013.  At that time the saved structure plan policies had not been revoked and therefore they should be taken into account in accordance with section 70(2) of the 1990 Act and section 38(6) of the 2004 Act.

25.         But in November 2012 the Government published the "Strategic Environmental Assessment of the Revocation of the South West Regional Strategy" ("the SEA") in which it reiterated its intention to "rapidly abolish regional spatial strategies and return decision-making powers on housing and planning to local councils" and for local plans to be the basis for local planning decisions.  The Localism Act 2011 had repealed Part 5 of the Local Democracy, Economic Development and Construction Act 2009 thereby removing the legal framework for the review of regional strategies or the adoption of new or revised regional strategies, giving the Secretary of State powers to revoke in full or in part existing strategies by order.

26.         County level structure plans were abolished under the 2004 Act but the policies in them remained in force for a transitional period.  In 2007 the Government wrote to advise local planning authorities which policies would be saved after 27 September 2007.  Appendix B of the SEA dealt with the revocation of saved structure plan policies.  None of the 28 saved policies from the Cornwall Structure Plan were considered relevant, with all of them being identified as either generic or policies where an applicable national policy was in place.

27.         By the relevant valuation date therefore it would have been known that although the saved structure plan policies were extant they were likely to be revoked in the near future.

Cornwall Structure Plan: the relationship with the NPPF

28.         The NPPF was published on 27 March 2012 and its policies applied from that date.

29.         Paragraph 214 of the NPPF states that for twelve months from 27 March 2012, decision-takers may continue to give full weight to relevant policies adopted since 2004 even if there is a limited degree of conflict with the framework.  Reference "to relevant policies adopted since 2004" is subject to a footnote which states:

          "In development plan documents adopted in accordance with the Planning and Compulsory Purchase Act 2004".

"Development plan documents" in this context means a local development document forming part of the development plan (section 37 of the 2004 Act) and does not include a structure plan.

Cornwall Structure Plan: policies

30.         The council said in its reasons for issuing a nil certificate on 16 May 2013 that the proposed residential development would be contrary to saved policies 1, 11, 12 and 17 of the Cornwall Structure Plan.  The relevant features of these policies are summarised below.

Policy 1:  principles for sustainable development

·           The development must contribute towards sustainable development and the enhancement of the quality of life.

·           Development should enable economic prosperity, reasonable access to services and facilities and make a positive contribution to the environment.

·           The focus should be on the regeneration of towns and villages; the location of development in relation to transport provision; and environmental protection and the stewardship of resources.

Policy 11:  the urban and rural economy

·           Economic growth and employment will be encouraged through the regeneration and investment in Strategic Urban Centres (“SUC”) - which include Camborne, Pool, Redruth (“CPR”) - and other towns.

·           This will be achieved by:

-  prioritising the regeneration of urban areas and town centres as the focus for retail, commercial and business activity;

-  maintaining a range and choice of sites to meet the needs of existing and new firms within or well integrated with built up areas; and

-  giving particular attention to the role of SUCs as locations for housing and employment growth.

Policy 12:  sites and premises for employment

·           A range and choice of marketable and quality sites for employment should be made available based on an assessed demand from existing and new firms, the need for local employment, the prospect of development and accessibility.

·           In considering land allocations or development proposals relevant factors include:

-  avoiding significant adverse effects on the built environment;

-  reduced travel;

-  supporting traditional sectors and encouraging new ones; and

-  considering the potential benefits of mixed use development.

·           Land for employment should be retained and sites in local plans should be reviewed for alternative uses where development for employment purposes is no longer likely to be appropriate or feasible.

·           Major employment needs will be focused on regeneration throughout the CPR area and in other towns in Cornwall.

Policy 17:  Camborne - Pool - Redruth

·           A strategic priority for regeneration and growth.

·           Development for employment uses will be encouraged on a range of sites.

·           The Pool/Tuckingmill area should be the focus for business growth and housing.

·           The number of new homes in CPR between 2001-2016 will be about 3,400 dwellings.  Construction should be phased to facilitate regeneration priorities and supported by improved local transport.

31.         The following saved structure plan policies are also relevant to the issues in this appeal:

Policy 8:  housing

·           Development should enhance the opportunities for a home for everyone in Cornwall.

·           About 29,500 (annual average 1,970) dwellings should be built in the period 2001-2016 of which 5,100 (annual average 340) dwellings should be built in Kerrier District (which includes CPR).

·           New housing will be distributed according to the guidance set out in the spatial strategy (Policies 16 to 26).

·           Table 1 of Policy 8 gives housing distribution, completions and commitments data based upon housing land availability surveys conducted in 2004.  Table 2 gives average annual house building rates between 1976 and 2004.

Policy 10:  location of housing development

·           Most housing should be located in, and well integrated with, existing built up areas of towns.

·           Priority should be given to re-using previously developed sites.

·           Regard should be taken of the character of settlements.

·           In order of preference housing development should:

-  re-use brownfield sites in urban areas;

-  use other urban area sites which should include the re-assessment of sites identified for employment purposes where such a use is unlikely to proceed or be suited to future circumstances; and

-  extend existing urban areas which have, or can provide, good public transport links.

·           40% of Cornwall’s housing development between 2001 and 2016 should be on brownfield sites and local plans should phase development so as to secure priority for the release of such sites.

Policy 16:  overall distribution of development

·           A significant proportion of new houses should be built in or adjacent to SUCs.

Cornwall Local Plan Strategic Policies (2010-2030): Pre-submission document March 2013

32.         In its schedule of reasons for granting a nil certificate the council referred to three “emerging policies” contained within the Cornwall Local Plan Strategic Policies pre-submission document that was subject to public consultation between 11 March and 22 April 2013.  In summary insofar as relevant to this appeal those policies are:

Policy 2:  key targets and spatial strategy

New development should provide the most sustainable approach to accommodating growth over the plan period.  Overall, development should seek to:

1.  Improve conditions for business and investment providing for an overall increase of over 50,000 jobs.

2.  Provide for 420,000 sq m of employment floorspace (divided equally between B1a office and B1, B2 and B8 industrial premises)

…

4.  Provide for 42,250 homes at an average rate of about 2,100 per year to 2030.

…

7.  “Re-enforce” the spatial strategy of a continued dispersed development pattern providing homes and jobs, in a proportional manner, where they can best sustain the role and function of local communities.

8.  Reflect the importance to the strength of Cornwall’s economy as a whole through:

(a)      supporting the economic regeneration of Camborne and Redruth…

(b)     supporting town centres, housing renewal and regeneration.

Policy 5:  jobs and skills

Existing and potential strategic employment land and buildings along with sites considered locally important will be safeguarded.  In all other cases existing employment land and buildings will be safeguarded where they are viable.  Such land and buildings will only be considered for alternative uses where this does not result in the loss of economic performance, i.e. through the redevelopment for a mix of uses.  Employment proposals should be located, inter alia, on existing employment (uses B1, B2 and B8) locations where re-location would be impractical or not viable.

Policy PP4:  Camborne, Pool and Redruth Community Network Area (“CNA”)

Development will be permitted where it can be demonstrated that the following priorities for Camborne, Pool and Redruth can be satisfied:

…

(b)  the provision of around 42,500 sq m of B1a office accommodation and 24,850 sq m of new industrial space has been identified (with a potential for 2,850 jobs);

(c)  the provision of around 4,000 dwellings in the period up to 2030;

…

(f)  the regeneration of underused or derelict sites for housing, leisure and employment uses.

33.         In the introductory text to Policy PP4 the plan sets out eight objectives, the first two of which are:

“Objective 1 - Employment

Enable higher quality employment opportunities by sustaining and enhancing the area’s role as one of Cornwall’s primary employment hubs.

Objective 2 - Housing

Deliver housing growth that will help facilitate the area’s economic aspirations, whilst also delivering much needed affordable housing for local residents.”

34.         The “Development Strategy” under the PP4 introductory text states at paragraph 7.4 that given its central location and significant amount of underused and brownfield sites “Pool should deliver employment space and strategic services and facilities that the whole of the CPIR area would seek to benefit from.”  Paragraph 7.5 says that “Gravitating out from this central location the use of other underused or derelict brownfield resources are being prioritised for development.”  Three such sites are identified but exclude the appeal site.  The sites will deliver “residential focused development” but also introducing some employment uses. Paragraph 7.7 states that it would be expected that some light industrial and office uses will be dispersed amongst the larger residential developments to offer a mix of uses.

35.         The housing section of the PP4 introductory text states at paragraph 7.6 that “In delivering CPIR’s housing target, priority should be given to the existing brownfield assets…”  Under the heading “Housing requirements” it states:

“7.12  The Community Network Area should plan for around of (sic) 4,500 dwellings (about 225 dwellings per year) over the period between 2010 and 2030.

7.13 As the main settlements with good employment and transport provision, Camborne, Pool and Redruth will be required to accommodate the majority of those dwellings. …”

The case for the appellant

36.         The appellant submitted that the Tribunal should cancel the respondent’s certificate and issue in its place a different certificate specifying that the application land is suitable for open market residential development (section 18(2)(b)(iii) of the 1961 Act).

37.         The appellant disputed that any of the application land is safeguarded for employment purposes in any extant or expired policy.  The council’s statement of case did not suggest that the land was in fact safeguarded.  In its statement of  reasons to the nil certificate the council said that the land shown hatched green on the plan attached to its decision, namely the appeal site excluding 78 Carn Brea Lane, “should be safeguarded for industrial/employment purposes” (appellant’s emphasis), thus recognising that it was not already safeguarded.

38.         The proposed residential development would cause no harm to the industrial estate.  Only a minimal area would be lost that was available (but not currently used) for circulation and parking.  There was a significant number of vacant industrial and employment buildings both on the Pool Industrial Estate generally and on Tescan’s own estate where the appellant had 140,000 sq ft (13,000 sq m) of industrial and employment space available and approximately 10% of its landholding undeveloped.  The appellant estimated that a further 46,000 sq ft (4,275 sq m) of industrial and employment floorspace could be provided elsewhere on its estate.  But there was no demand for such development given that the appellant only had a 70% occupancy rate.

39.         The council had twice obtained planning permission for the road scheme forming the subject of the order.  If the local planning authority considered that the proposed road would cause harm to the operation of employment and industrial land then it was incumbent upon them to say so and to weigh such harm against the need for the development.  But no such harm was identified in the context of the planning application for the road in respect of the loss of parking or circulation areas.  Nor was any adverse effect identified on local employment/industrial land in general or on the Tescan Estate in particular.  There had been no material change in circumstances since those planning permissions had been granted in 2008 and 2011 and therefore the appellant saw no reason for the respondent to argue now that the appeal site should be safeguarded for industrial or employment purposes.  No representation had been made on the matter by the council’s own economic development officer.  There was no demonstrable need for the appeal site to be kept available for industrial or employment use.

40.         The appeal site formed the boundary between the residential and industrial areas and there were currently no adverse impacts on the amenity of residents and none would occur in future were residential development to take place.  The main concerns about amenity appeared to be about visual impact and noise.  These could be resolved by design and would be no worse than was presently experienced by the occupiers of the house at 78 Carn Brea Lane.  The history of Tescan’s industrial estate was one of the replacement of manufacturing businesses by service and employment based uses which could operate in proximity to residential areas without an adverse effect on amenity, a point recognised in the accompanying text to Policy PP4 of the emerging draft Cornwall Local Plan.

41.         The appellant criticised the council for using the words “employment land” and “industrial land” synonymously.  The council said that the draft local plan policies applied to all types of employment land but then referred just to Class B1, B2 and B8 (and to Class D2 when it suited them).  When referring to the amenity of residents the council spoke of the harm caused by being nearer to “industrial buildings”.  Neither Class B1 nor D2 were industrial uses and, notwithstanding the appellant’s views that neither B2 nor B8 use would adversely affect amenity, it followed that the Tescan estate could be used for employment land in a manner that was not incompatible with residential development on the appeal site.  In their previous planning decisions and in their emerging policies the council had not sought to safeguard industrial uses.  Instead they had permitted changes of use to other employment uses that were compatible with residential development.  The council had adduced no evidence of the previous use of the site for employment or industrial purposes and could show no need for the same because none existed.

42.         The appeal site was not of strategic or local importance.  It had been unused for a long period.  There was no prospect of its future use for employment purposes.  At no time, including the inspector’s consideration of the compulsory purchase order, had anyone sought to indicate that the appeal site was important to the functioning of the Pool Industrial Estate.

43.         The appellant referred to the council’s grant of planning permission in 2011 for the change of use of Unit 5A, Wilson Way, Pool from a Class B8 warehouse to use as a fitness centre (Class D2).  It said that this showed that the council were not overly concerned about the loss of Class B8 uses in the area where alternative employment was provided.  It also showed that other uses were capable of occupying buildings adjacent to residential areas without an adverse impact on the amenity of residents or upon the occupying business.  The unit in Wilson way was closer to residential property than were the units on the Tescan Estate to the appeal site.

44.         The appellant reviewed the 12 core planning principles contained in paragraph 17 of the NPPF and concluded that only two of them were relevant to the council’s decision: (i) to proactively and objectively drive and support sustainable economic development; and (ii)  to seek to secure high quality design and a good standard of amenity (see paragraph 15 above).  With respect to core principle (i) the appellant said that the “minimal amount of land” with which the appeal was concerned would not undermine the industrial units at the Tescan estate and would contribute to sustainable economic development by delivering housing.  Regarding core principle (ii) the appellant said that it had addressed the amenity argument (see paragraph 40 above) and that the council did not appear to take issue in respect of the design of the proposed development.  The remaining core principles had either been satisfied or were not relevant to the appeal.

45.         The appellant said that it had addressed the council’s concerns about paragraphs 18, 19 and 21 of the NPPF, all of which dealt with building a strong, competitive economy.  The proposed development caused no harm to economic growth in the area.  Paragraph 21 stated that planning policies should recognise and seek to address potential barriers to investment in business, including the lack of housing.

46.         The appellant identified a number of paragraphs in the NPPF which it submitted supported the appeal.  The presumption in favour of sustainable development set out in paragraph 14 meant that where, as here, the development plan was absent, silent or out of date planning permission should be granted unless the harm of doing so would demonstrably outweigh the benefits when assessed against the policies in the NPPF taken as a whole or where specific policies indicated that development should be restricted.  The council accepted that the appeal site was in a sustainable location and had raised no issues about sustainable development except for amenity and the effect upon the industrial estate, both of which the appellant had addressed.

47.         The proposed residential development of the site was consistent with paragraph 51 of the NPPF (see paragraph 22 above) and there were no strong economic reasons why such development would be inappropriate.  There was an identified housing need in this locality and paragraph 51 of the NPPF therefore applied in favour of the proposal.  The appellant said that this conclusion was supported by paragraphs 187 and 197 of the NPPF which reiterated the positive support for sustainable development.

48.         The appellant said that the Cornwall Structure Plan was out of date and that the saved policies were revoked on 20 May 2013.  As such the policies in the structure plan only carried weight according to their degree of consistency with the NPPF (see paragraph 215 of the NPPF).  Besides it was generally known that the Cornwall Structure Plan was to be revoked (see paragraphs 23 to 27 above).  The appellant submitted that:

“To the extent therefore that the CSP may have acted against a planning permission for the development reasonably having been expected to have been granted on an application decided on the relevant valuation date, it could not have acted against a planning permission for the development reasonably having been expected to have been granted on an application decided at a time after that date.”

The appellant submitted that the structure plan could therefore be ignored where the Tribunal was considering the position under section 14(4)(b)(ii) of the 1961 Act.

49.         Notwithstanding these submissions the appellant gave brief comments, insofar as it was necessary to do so, on those structure plan policies to which the council referred in their schedule of reasons for refusal:

Policy 1.  The proposed residential development did not conflict with this policy.  It did not adversely affect the economic prosperity of the area and was a proposal for sustainable development.

Policy 11.  This policy encouraged regeneration and reinvestment in strategic urban centres.  It did not discriminate between industrial and residential development, both of which were compatible with the policy.

Policy 12.  The appellant had addressed the amenity issues associated with the construction of housing next to an industrial estate (see paragraph 40 above).  It submitted that there would be no adverse effect upon the amenity of any new residential occupier.  The current industrial estate had sufficient parking for its existing use and the loss of a small area of such parking would be immaterial to the ability of the estate to operate efficiently.

Policy 14.  The focus of this policy as it applied to Pool was on business growth and housing.  It was a strategy for mixed development which the proposed development of the appeal site did not contravene.  

50.         In addition to its comments on the policies referred to in the council’s schedule of reasons, the appellant also said that Policy 10 was highly relevant in the appeal.  That policy dealt with the location of housing development and identified existing built up areas of towns and the re-use of previously developed brownfield sites as being the preferred location for most new housing.

51.         The appellant submitted that the policies in the Cornwall Local Plan Strategic Policies (2010 - 2030): pre-submission document should be given limited, if any, weight.  Paragraph 216 of the NPPF stated that the more advanced the preparation of the plan the more weight could be given to it.  The policies of the draft local plan did not form part of the development plan for the purposes of section 70(2) of the 1990 Act and section 38(6) of the 2004 Act.  They could only be taken as material considerations.  The appellant said that the housing land availability figures shown in the draft local plan were being reviewed and therefore only limited weight could be given to the policies in the draft local plan which were supported by such figures.

52.         The appellant commented briefly on the three emerging policies of the draft local plan that were relied on by the council:

Policy 2.  The use of the appeal site for housing would not prevent the council from meeting its overall objective of providing 420,000 sq m of employment floorspace over the plan period.  By contrast the proposed residential redevelopment of the site would contribute to the key target of providing 42,250 homes by 2030.

Policy 5.  The appellant said that this policy would not apply to the appeal site because it was not strategic employment land and its redevelopment would not cause any loss of economic performance.  The site was located at the edge of the industrial development in Pool and had not performed any employment or industrial function for a long time.

Policy PP4.  The appellant submitted that this policy identified both employment and housing as development objectives in the Camborne Pool Redruth CNA. There was nothing in this policy that would prevent the development of housing on the appeal site since there would be no loss of potential employment floorspace.  But there was a “current and future acute need for housing in this location”.  Even excluding the appeal site Tescan could provide some 8,000 sq m of industrial land for development within their holding on the Pool Industrial Estate, approximately one-third of the requirement identified in Policy PP4.

The case for the respondent  

53.         The council submitted that planning permission would not have been granted for the residential development of the appeal site.  The site had long been part of the Pool Industrial Estate and there was a need to retain such employment land in the area.  Residential development would be out of character and would be harmful to the amenity and living standards of incoming residents.

54.         The council relied upon the results of its Strategic Housing Land Availability Assessment (September 2013) to show that it had a demonstrable five-year supply of deliverable housing sites.  It said that in the CPR urban area some 70% of the target number of 4,000 homes for the local plan period (2010 - 2030) had been commenced or committed since 2010.  In response to a request from the Tribunal to explain how a document published in September 2013 was relevant to the circumstances known to the market at the relevant valuation date (28 February 2013) the council said:

“(1)  The document is not a ‘policy’ but an evidence base that assists the Council in developing housing policies.

(2)   The document has no real relevance to the determination of this matter.

(3)  In any event, it was not undertaken on the land that is relevant to the determination.”

Nevertheless the council relied in its written representations on the SHLAA to show that there was an adequate supply (6.7 years) of housing land and therefore there was no need for housing on the appeal site.

55.          The council also relied upon the NPPF and the emerging policies of the Cornwall Local Plan: Strategic Policies. The council said that the NPPF sought to promote sustainable development against a background of core planning principles.  The NPPF also said that planning policies should aim for a balance of land uses within their area (paragraph 37).  The council referred to paragraph 22 of the NPPF (see paragraph 19 above) and emphasised that consideration of the alternative use of sites allocated for employment use was dependent on there being no reasonable prospect of a site being used for that employment purpose.  Paragraph 17 of the NPPF established the core planning principle that there should always be a good standard of amenity for all existing and future occupants of land and buildings.

56.         The council relied upon policies 2, 5 and PP4 of the emerging local plan.  It said that Policy 2 applied to all types of employment land and was not restricted just to industrial land “such as the B1, B2 and B8 permitted uses on the application site”.  Policy PP4 also emphasised the importance of retaining land in employment use in the CPR CNA (see objective 1 at paragraph 33 above).  The council noted that the appeal site was not one of the brownfield sites identified as priorities for residential development in paragraph 7.5 of the accompanying text to Policy PP4.

57.         The council submitted that there was no likelihood of residential planning permission having been granted in the light of the NPPF and emerging local plan policies which emphasised the importance of retaining and expanding the stock of employment land and of the need to protect residential amenity.  There was no pressing need for new residential development given the adequate supply of housing land over the local plan period.

58.         Residential development of the appeal site would mean the loss of areas that assisted the operational capacity of the Pool Industrial Estate.  It would adversely affect circulation, access, parking and ancillary operations elsewhere on the estate.  The appeal site was physically part of the industrial estate and it fulfilled an important function in support of the estate’s attractiveness and viability.  There was a strong need for employment land in the CPR area with a policy objective of providing 420,000 sq m of such land over the plan period, with Pool identified in Policy PP4 (paragraph 7.4) as the centre for growth in employment opportunities.  The Pool Industrial Estate was one of the largest and most important industrial estates in Cornwall and as such was a strategically and locally important employment site.  It should be safeguarded and the council’s view that planning permission should not be granted for the residential development of the appeal site was consistent with the relevant planning policy.

59.         The council said that the appellant’s references to the planning permissions that the council had obtained for its highway scheme were irrelevant.  Those permissions were granted prior to the introduction of the relevant planning policies and were to facilitate wider regeneration benefits to the CPR area and the delivery of over 100,000 sq m of employment space.  Those benefits outweighed the harm of the loss of employment land.

60.         The council accepted the transitional nature of the appeal site as an area lying between residential and employment land uses.  It acknowledged the existence on the site of the house at 78 Carn Brea Lane but said that this was set further away from the adjoining commercial premises than the remainder of the proposed development and was physically separated from it by a car park bounded by a low wall.  The proposed development would erode the effectiveness of the buffer between employment and residential uses.  The council said that the permitted uses on the neighbouring industrial estate included Class B1, B2 and B8 uses which “could reasonably be supposed to have an adverse impact on the amenity of future occupiers in such close proximity through excessive noise, disturbance and smell/odours, from any industrial process”.  The proposal would also reduce car parking and circulation areas on the industrial estate which in turn would lead to these activities being “forced into very close proximity” to the proposed housing.  The council said that there were “certain situations” in which light industrial/office use could co-exist with residential uses but submitted that in the case of the Pool Industrial Estate it would not be appropriate to redevelop the appeal site for housing directly adjoining employment land with permitted B1, B2 and B8 uses any closer than 78 Carn Brea Lane was at present.

61.         The appellant’s reference to the change of use of Unit 5A Wilson Way from Class B8 to Class D2 was not relevant.  Both uses generated employment and the planning policy was to protect such employment uses generally.  The residential redevelopment of the appeal site would involve the loss of employment land.  Furthermore the application at Unit 5A involved the alternative use of an existing building rather than the creation of new housing closer to an adjoining industrial site.

62.         The concept of sustainability required the promotion of a balanced mix of land uses for the locality as a whole.  The proposed redevelopment was not sustainable because it was not needed and because of the adverse effect upon residential amenity and the loss of important employment land.

The legal framework of the decision

63.         The Tribunal must consider the matters to which the certificate relates as if the application for a certificate under section 17 had been made to it in the first place (section 18(2)(a) of the 1961 Act).  I am therefore considering the application de novo and I am not constrained by the schedule of reasons given by the council in its decision.

64.         In determining the appeal the Tribunal should apply ordinary planning principles: see Fletcher Estates (Harlescott) Ltd v Secretary of State [2000] 2 AC 307 per Lord Hope of Craighead at 324 and Rooff Ltd v Secretary of State [2011] EWCA Civ 435 per Carnwath LJ (as he then was) at paragraph 5.  Those ordinary planning principles are contained in section 70 of the 1990 Act and section 38(6) of the 2004 Act under which the Tribunal shall have regard to the provisions of the development plan for the purposes of determining the appeal and shall make its determination in accordance with that plan unless material considerations indicate otherwise.

65.         Section 38(6) of the 2004 Act refers to a determination that is required to be made under the planning Acts.  The definition of the planning Acts is contained in section 117(4) of the 2004 Act and does not include the 1961 Act.  In Harringay Meat Traders Ltd v Secretary of State and Others [2012] EWHC 1744 (Admin), McCombe J said at paragraph 35:

“In somewhat convoluted terms section 17(4) of the 1961 Act provides that a CAAD must contain an opinion on what classes of development would have been allowed on an application for planning permission, i.e. an application for permission under the ‘planning Acts’.  Section 17(4) refers in four places to the hypothetical question of whether planning permission would have been granted.  Thus, the matter has to be considered in the same way as if an application for such permission had been made, which in turn requires that regard be had to the development plan in the terms specified in section 38(6) of the 2004 Act.”

The decision in Harringay Meat was concerned with the wording of section 17 before it was substituted by section 232(3) of the Localism Act 2011.  The amended version of section 17 requires an applicant to specify in the application each “description of development” that is considered to be appropriate alternative development.  The definition of “appropriate alternative development” under section 14 (as amended) is development for which planning permission could at the relevant valuation date reasonably have been expected to have been granted on an application decided on that date or at a time after that date.  In my opinion the reasoning of McCombe J in Harringay Meat also applies to section 17 of the 1961 Act as amended and requires that regard be had to the development plan in accordance with section 38(6) of the 2004 Act.

66.         The Tribunal is therefore required to consider whether the proposed development was in accordance with the development plan and, if not, whether material considerations justified departing from that plan.  In Tesco Stores Limited v Dundee City Council [2012] UKSC 13 the Supreme Court considered the requirements for interpreting the provisions of a development plan.  Lord Reed said at paragraph 17:

          “It has long been established that a planning authority must proceed upon a proper understanding of the development plan … the need for a proper understanding follows, in the first place, from the fact that a planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them….

18. In the present case, the planning authority was required by section 25 [of the Town and Country Planning (Scotland) Act 1997] to consider whether the proposed development was in accordance with the development plan and, if not, whether material considerations justified departure from the plan.  In order to carry out that exercise, the planning authority [was] required to proceed on the basis of what Lord Clyde described [in City of Edinburgh v Secretary of State for Scotland [1997] 1WLR 1447 at 1459] as “a proper interpretation” of the relevant provisions of the plan…  The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it.  It is intended to guide the behaviour of developers and planning authorities.  As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained.  Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality.  On the contrary, these considerations suggest that in principle, in this area of public administration as in others…, policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.

19. That is not to say that such statements should be construed as if they were statutory or contractual provisions.  Although a development plan has a legal status and legal effect, it is not analogous in its nature or purpose to a statute or a contract.  As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another.  In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment.  Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse… Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”

67.         What constitutes a “material consideration” is a matter of law; what weight should be given to it is solely a judgment for the decision-maker.  In Tesco Stores Limited v Secretary of State for the Environment and Others [1995] 2 All ER 636 Lord Hoffmann said at 657 [13]:

          “The Law has always made a clear distinction between the question of whether something is a material consideration and the weight that it should be given.  The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority.  Provided that the planning authority has regard to all material considerations, it is at liberty (provided it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all.  The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.”

68.         The Tribunal must be satisfied on the balance of probabilities that planning permission would have been granted for the description of development applied for and it does not have to assess more precisely the chances or prospects of that development happening or of the permission being implemented: see Harringay Meat per McCombe J at [11] and Porter v Secretary of State for Transport [1996] 3 All ER 393 per Stuart-Smith LJ at 704e.

Discussion

69.         I am required to determine whether, on the balance of probabilities, planning permission for “full open market residential” use could reasonably have been expected to be granted on the relevant valuation date (28 February 2013) in the circumstances known to the market on that date and on an application decided on that date or at a time after that date.  I must determine the issue in accordance with the development plan unless material considerations indicate otherwise.

70.         At the relevant valuation date it would have been known in the market that:

(i)       the saved policies of the Cornwall Structure Plan remained extant but would soon be revoked (see paragraphs 23 to 27 above); and

(ii)     the Cornwall Local Plan had not been adopted or approved.  The publication of the Strategic Policies Pre-submission document was imminent and would be the subject of consultation.

71.         The council referred to the saved policies of the Cornwall Structure Plan 2004 in the schedule of reasons attached to its decision notice but then did not refer to them in either its response to the appellant’s statement of case or its written representations.  In an email to the Tribunal dated 20 June 2014 the council said:

          “At the relevant valuation date, the Cornwall Structure Plan 2004 was due to be revoked.  Therefore, little weight was placed on the policy.”

The council gave no evidence in support of the reason for refusal that referred to the proposed residential development being contrary to saved policies 1, 11, 12 and 17 in the Cornwall Structure Plan 2014. It was known at the relevant valuation date that the local plan would replace the structure plan, the saved policies of which were to be revoked shortly.  I therefore give limited weight to those saved policies.

72.         At the relevant valuation date the local plan had not been adopted.  It was about to enter its pre-submission consultation phase following which there would be further consultation stages before submission to the Secretary of State and examination in public.  The parties agreed in further submissions made at the request of the Tribunal that the emerging policies of the local plan pre-submission phase would have been known to the market at the relevant valuation date since the document had been presented to various committees of the council before its publication.  The claimant invited the Tribunal to place no weight on the local plan while the council said that “for the local authority the plan would have had limited weight in decisions although a material consideration.”

73.         In my opinion some weight should be given to the local plan pre-submission document.  Although it was an emerging plan in the early stages of its development it nevertheless represented the local planning authority’s latest policy views and was known to the market at the relevant valuation date.

74.         Both parties, in their further written submissions to the Tribunal, sought to introduce evidence of planning policies that could not have been known about at the relevant valuation date.  The claimant referred to a proposed schedule of Focused Changes to the Local Plan Strategic Policies Proposed Submission Document 2010-2030 (March 2014) that was issued for consultation from 4 September to 16 October 2014 while the council referred to the Cornwall Allocations Development Plan Document.  Section 14(4)(b) of the 1961 Act as amended specifically requires the determination of whether planning permission could reasonably have been expected to be granted to be made in the circumstances known to the market at the relevant valuation date.  Section 14(4)(b)(ii) refers to the application being decided at a time after the relevant valuation date.  But in my opinion that sub-section does not allow a consideration of the planning policy as it actually developed after the relevant valuation date and I place no weight on these documents.

75.         I place significant weight upon the NPPF given its declared function as guidance for the council’s emerging local plan and as a material consideration in determining planning applications.  The “golden thread” of the NPPF is its presumption in favour of sustainable development.  The parties agree that the appeal site is in a sustainable location and both the appellant and the council fairly point to passages in the NPPF that support their position.  In my opinion the key provision of the NPPF under these circumstances is paragraph 22 (see paragraph 19 above) which states that planning policies should avoid the long-term protection of sites allocated for employment use when there is no reasonable prospect of a site being used for that purpose.  This statement was echoed in policy 12 of the Cornwall Structure Plan (see paragraph 30 above).  Policy 5 of the emerging local plan (see paragraph 32 above) seeks to safeguard strategic and locally important employment sites.  In all other cases the policy will safeguard such sites if they are viable and alternative uses will only be considered if they will not result in the loss of economic performance.  

76.         The question is therefore (i) whether there was a reasonable prospect of the appeal site being used for employment purposes in the circumstances known to the market at the relevant valuation date; and (ii) whether the appeal site is a strategic or locally important site.  The answer to both parts of the question, in my opinion, is no.  The appeal site is, by the agreement of the parties, in a transitional area between an industrial estate and residential development.  The council argue that any residential development of the site would prejudice the amenity of incoming residents due to the proximity of the Tescan Estate, but there is already a house on the site and I am not persuaded that the future amenity of residents would necessarily be harmed.  Careful layout and design would, in my opinion, mitigate any such problems.  The nature of the existing uses on this part of the Tescan Estate at the relevant valuation date was not such as to harm residents.  The claimant correctly stated that both classes B1 and D2 uses are compatible with residential areas and that changes of use to permit such D2 employment uses had already been allowed by the council.  There was no policy to safeguard industrial – as distinct from employment – uses.  The appeal site was not in active employment use and there was no evidence about its historic use.

77.         The council said there was no pressing need for new residential development given the adequate supply of housing land over the local plan period.  But at the relevant valuation date there was no evidence of such an adequate supply.  The Cornwall Structure Plan contained details of housing completions and commitments based upon information from a 2004 housing land availability survey.  This showed that in CPR there was a proposed housing provision of 4,200 dwellings between 1996 – 2016 of which 2,250 (53.4%) remained outstanding in 2004.  This was the highest percentage outstanding of any region in the county.  While these are historic figures upon which I place limited weight the level of required housing provision remained similar in the emerging local plan.  Thus Policy 2 gave as a key target the need to provide for 42,250 homes at an average rate of about 2,100 per annum from 2010-2030.  The structure plan had identified the need for 40,000 homes between 1996 and 2016 at an average proposed rate between 2001 and 2016 of 1,973 per annum (the historic rate being 2,280 per annum).  Policy PP4 identified the provision of 4,000 dwellings in CPR between 2010-2030 as a priority, a very similar target to that set in the 2004 Cornwall Structure Plan.  In my opinion these figures support the claimant’s assertion that there was still a need for housing in the vicinity of the appeal site at the relevant valuation date.

78.         The local plan also identifies a requirement to provide 420,000 sq m of employment floor space (specifically Use Classes B1(a). B1, B2 and B8) of which 42,500 sq m of B1(a) office accommodation and 24,850 sq m of industrial space should be provided in the CPR area.  Policy 5 seeks to safeguard “strategic employment land and buildings” together with “local important sites”.  These sites were not identified in the evidence and I accept the appellant’s submissions that the appeal site was not on its own a strategic or locally important site.

79.         There is a need to balance the objectives of Policy PP4 for employment (“enable higher quality employment opportunities”) and housing (“deliver housing growth”) and there are policy arguments in favour of them both.  A particular difficulty in this case is the fact that there was a policy vacuum at the relevant valuation date with the saved structure plan policies about to be revoked but their replacement by the local plan still in its infancy.  That vacuum means that more weight needs to be given to the NPPF but that is national guidance which, while informing the process of drawing up development plans, is not easily applied to specific sites.  The NPPF espouses sustainable development as its overriding principle but both employment generating development and residential development are key elements in building a sustainable community.

80.           It appears that the application made by the appellant on 19 March 2013 included the whole curtilage of 78 Carn Brea Lane, not all of which was to be compulsorily acquired.  Under section 14(4)(a) of the 1961 Act development is “appropriate alternative development” if it is development on the relevant land alone (the land to be compulsorily acquired) or on the relevant land together with other land, other than development for which planning permission is in force at the relevant valuation date.  The certificate requested related to all of the land identified in the section 17 application made on 19 March 2013 and included that part of 78 Carn Brea Lane that was not being compulsorily acquired but which constituted “other land” for the purpose of section 14(4)(a).

81.         The council in their decision divided the appeal side into two parts: the whole curtilage of the house at 78 Carn Brea Lane and the remaining land as shown hatched green.  They said nothing in terms about the former but in the reasons for their decision said that “the majority of the site [the land hatched green] should remain in use and allocated for industrial/employment purposes.”  Later the council referred to the need to safeguard the site for such purposes.  Two points arise from this:

(i)            the council acknowledged that at least part of the appeal site (78 Carn Brea Lane) should be residential; and

(ii)          the council are prepared to see an employment use in contiguity with a residential use.

82.         The council issued a nil certificate and said that there was no development in relation to the appeal site that constituted appropriate alternative development.  The council was not constrained to consider only the type of development specified in the appellant’s application (residential).  It was also open to them under section 17(5)(a) of the 1961 Act to identify every description of development (whether specified in the application or not) that in the local planning authority’s opinion is appropriate alternative development in relation to the acquisition concerned.  The definition of appropriate alternative development under section 14 of the 1961 Act excludes development for which planning permission is in force at the relevant valuation date.  The details of the planning history of the appeal site were not in evidence but there was no suggestion that there was any outstanding planning permission to redevelop the appeal site for industrial or other employment purposes.

83.         The tenor of the council’s argument is that the appeal site should contribute to the identified need in the structure plan and the emerging local plan for additional industrial/employment floor space.  But their decision on the application suggests they did not wish to see new buildings developed on the land shown hatched green but only wanted it to “remain in use” for “circulation, access, parking and ancillary operations” in association with industrial/employment use.  Otherwise they would presumably have identified such development as appropriate alternative development.  In my opinion the loss of the appeal site would not have compromised the efficiency, function or economic performance of the Tescan Estate since the site’s contribution to these ancillary uses was, on the evidence, at best marginal.  The council’s approach maintains the status quo ante, an approach that would do nothing to achieve the NPPF’s objective of sustainable development.  The council did not identify any appropriate alternative development for the site, a stance which would have left it as a partly vacant and overgrown brownfield site making no contribution to either housing or employment requirements and objectives.

84.         I am satisfied (i) that there was not an established need to keep the appeal site available for employment use; (ii) there was a need for housing development in the CPR area; and (iii) the appeal site was suitable for residential development given appropriate conditions on layout and design.  I therefore allow the appeal and cancel the negative certificate under section 18(2)(b)(iii) of the 1961 Act and issue a positive certificate for residential development as shown in the attached Appendix A.

85.         I am required under section 17(5)(b) to give a general indication of the conditions to be imposed on the development and I adopt those conditions contained in the schedule attached to the positive certificate of appropriate alternative development granted by the council on 29 June 2012.  The condition that the development shall be in accordance with approved plans includes, in particular, the need to approve a layout and design which will mitigate any impact of neighbouring industrial/employment use on the new residential development.

86.         The Cornwall Structure Plan (Policy 9), the NPPF (paragraph 50) and the Cornwall Local Plan Strategic Policies Pre-submission document (Policy 8) are concerned with the provision of affordable housing.  I am satisfied that the planning permission for residential development at the appeal site could reasonably have been expected to be subject to a condition providing for affordable housing.  The target level for CPR is stated in Policy 8 of the local plan pre-submission document as 40% but in individual cases this would be based upon viability and the application of supplementary planning guidance.  The mix of affordable housing products (whether rented or intermediate housing) would be the subject of negotiation and would depend upon the evidence of housing need and viability constraints. 

87.         This decision is final.  The question of costs is dealt with under section 17(10) of the 1961 Act which states:

“In assessing any compensation payable to any person in respect of any compulsory acquisition, there must be taken into account any expenses reasonably incurred by the person in connection with the issue of a certificate under this section (including expenses incurred in connection with an appeal under section 18 where any of the issues are determined in the person’s favour).”

88.         The appellant has succeeded in its appeal and is entitled to its expenses reasonably incurred of making the section 17 application and the section 18 appeal as part of any compensation payable by the acquiring authority (the council) as yet to be agreed or determined.

 

                                                                                    Dated:  3 November 2014

 

 

                                                                                    A J Trott FRICS

[2014] UKUT 0408 (LC)

UTLC Case Number: ACQ/80/2013

 

APPENDIX A

LAND COMPENSATION ACT 1961 (AS AMENDED)

CERTIFICATE OF APPROPRIATE ALTERNATIVE DEVELOPMENT

LAND AT AND ADJOINING 78 CARN BREA LANE, POOL, REDRUTH, CORNWALL TR15 3DS

PURSUANT TO the Tribunal’s powers under section 18 of the Land Compensation Act 1961 (as amended) it is hereby CERTIFIED in relation to the said land that for the REASONS set out in its decision dated 3 November 2014:

(1)          The nil certificate issued by Cornwall Council on 16 May 2013 is cancelled;

(2)          Planning permission would have been granted for residential development on the relevant land and other land (together shown edged in black on the attached plan) subject to:

(i)      STAT - Statutory time limits (3 or 5 years)

(ii)     CON - Contaminated land

(iii)    DRAN - Surface water disposal

(iv)    HIGW - Parking provision

(v)     LAN - Means of enclosure

(vi)    MINE - Ground stability

(vii)   PLAN - Development in accordance with approved plans

(viii)  Affordable housing provision       

                                                            Dated 3 November 2014

                                                            Signed: A J Trott FRICS

                                                            Member Upper Tribunal (Lands Chamber)