[2025] UKUT 312 (LC)

Quintain applied to the Council for a CAAD on 11 February 2019, seven months after the Secretary of State took possession of the Appeal Site. The development for which it sought a certificate was described as:

“Mixed use development of up to 108,000 sq.m GIA comprising retail, financial and professional, café and restaurant and hot food takeaway (use classes A1, A2, A3, A5) office (use class B1), residential (use class C3) student accommodation (sui generis) hotel (use class C1) including tall buildings up to 30 residential storeys high.”

At the request of the Council the proposed height of some of the buildings was reduced and, as a result, the gross internal area of the development shrank to 99,490 sq m. An indicative layout and other details were provided in a design and access statement.

The Council was unable to determine the application within the permitted two months and on 10 May 2019 Quintain filed a notice of reference with the Tribunal appealing the non-determination. The Council is not a party to the proceedings and on 29 May 2019, it completed its consideration of the application and issued a certificate describing development in the revised form requested by Quintain. The only limited differences between the proposals which Quintain now seeks and the Council’s certificate relate to affordable housing.

The status of a certificate issued after the time permitted by the LCA is ambiguous and the certificate issued by the Council has been referred to by the parties as a “purported CAAD”. Their agreed position is that the appeal is not against the purported CAAD but is against the nil-certificate which section 18(3) deemed to have been issued on the expiry of the time limit.

It is an important feature of the Curzon Street proceedings as a whole that none of the parties asked the Council to issue a single CAAD covering all four sites. Each of the dispossessed owners sought a certificate for their own site alone. The Secretary of State has not sought any certificate and in particular has never sought a comprehensive certificate specifying what would be appropriate alternative development for the whole of the land taken from all four owners. Section 14(4) defines “appropriate alternative development” as development “on the relevant land alone or on the relevant land together with other land” and there appears to be no reason why land in different ownerships could not be comprised in a single application. Such an application would have been a substantial undertaking, but it would have enabled the comprehensive appraisal which the Secretary of State has always sought.

The Tribunal first determined as a preliminary issue whether, and if so how, development proposed as appropriate alternative development in one CAAD application could be taken into account when determining a CAAD application for different land (Secretary of State for Transport v Curzon Park Ltd & Ors [2020] UKUT 37 (LC)). The answer was that in determining the development for which planning permission could reasonably have been expected to be granted, the decision maker was not required to assume that other CAAD applications or decisions had never been made but should treat such applications and decisions as what they were, and not as notional applications for, or grants of, planning permission. They were not material planning considerations. Subject to those boundaries, it was for the decision maker to give the applications and decisions such evidential weight as they thought appropriate.

The Tribunal’s decision was subsequently affirmed by the Supreme Court ([2023] UKSC 30, at [100] restoring the declaration the Tribunal had made, on appeal from the Court of Appeal, [2021] EWCA Civ 651).

The Tribunal has also ruled on the need for purpose built student accommodation at the valuation dates in Secretary of State for Transport v Quintain City Park Gate Birmingham Ltd [2025] UKUT 7 (LC). We concluded that a need had been demonstrated for accommodation for around 20,000 students in the city, including about 9,000 in the city centre.