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CAADs, Curzon Street and the Court of Appeal – HS2’s Appeal Dismissed

Richard Glover QC
James Pereira QC
Caroline Daly

The Court of Appeal has dismissed an appeal (Secretary of State for Transport v Curzon Park Ltd and others [2021] EWCA Civ 651) made by the Secretary of State for Transport against a decision of the Lands Chamber in respect of a preliminary issue in four cases relating to neighbouring sites compulsorily acquired for the construction of the HS2 Curzon Street terminus in Birmingham. 

The question for determination by the Court of Appeal was whether on an application for a certificate of appropriate alternative development (CAAD) under s. 17 of the Land Compensation Act 1961, the decision-maker ought, when determining the development that could reasonably be expected to be granted planning permission under s. 14, to take into account other applications for, or grants of, CAADs as though they were planning applications or decisions, or material planning considerations. 

The Court of Appeal upheld the Lands Chamber’s decision that applications for, or grants of, CAADs are not to be treated as notional applications for, or grants of, planning permission or as material planning considerations. The Court of Appeal departed from the Lands Chamber’s view and agreed with the Respondents that it is an inevitable consequence of the cancellation assumption that no CAAD applications on other sites could have been made, with the effect that the issue of CAADs on different sites must be entirely disregarded. A costs appeal regarding s. 17(10) of the Land Compensation Act 1961 was also rejected by the Court of Appeal.

James Pereira QC and Caroline Daly acted for the First Respondent (Curzon Park Ltd).

Richard Glover QC acted for the Fourth Respondent (Birmingham City University). 

A copy of the judgment can be found here