Secretary of State for Transport v Curzon Park Limited

Introduction

1. This is the Tribunal’s fourth determination concerning the planning status of land at Curzon Street in Birmingham, taken by the Secretary of State in 2018 to be the terminus of the new HS2 high-speed rail link between London and Birmingham. The subject of this decision is Curzon Park, the largest of the four Curzon Street sites covering 4.6 ha. Until its compulsory acquisition on 30 August 2018 it belonged to the respondent, Curzon Park Ltd (CPL). In previous decisions it was identified as Site 3, but we will now refer to it as the Appeal Site, or simply the Site, and to the date of its acquisition as the Valuation Date.

2. The proceedings are an appeal by the Secretary of State for Transport against a certificate of appropriate alternative development (a ‘CAAD’) granted to CPL by the local planning authority, Birmingham City Council (the Council), on 18 June 2019 (the Certificate). The Council certified that, making the assumptions required by section 14(5) , Land Compensation Act 1961 , it was likely that planning permission would have been granted on the Valuation Date for development on the Appeal Site of up to 181,260 sqm GIA, in ten separate buildings of between 7 and 41 storeys, intended for office, residential and retail uses, and as PBSA (purpose built student accommodation). It is agreed that for the purpose of this appeal the HS2 project is assumed to have been cancelled on 25 November 2013.

3. The Secretary of State’s case is that the Certificate should not be confirmed and that in its place a certificate should be issued describing a smaller mixed-use development of up to 138,175 sqm in eight buildings of up to 15 storeys. Since obtaining the Certificate, CPL has modified its own proposals and now presents six different schemes of between 181,000 sqm and 194,000 sqm in a variety of configurations. The design choices of the parties are heavily influenced by the view taken by their respective experts of the need to protect and enhance the setting of the Grade I listed former Principal Station Building of the London to Birmingham Railway (to give it its full title in the National Heritage List for England) which opened on 17 September 1838 and immediately adjoins the western end of the Site.

4. One additional feature of this appeal, missing from the three Curzon Street appeals we have already determined, is that after the Valuation Date an archaeological investigation discovered the well-preserved remains of the world’s oldest railway roundhouse below the surface of the Appeal Site. Designed by the pioneering railway engineer, Robert Stephenson, and opened in 1837, the Roundhouse was a circular engine shed, used to store and turn the earliest steam locomotives. Its remains are agreed to be a monument of national or even international significance and the design of HS2’s Curzon Street Station has been modified to ensure that they are preserved. At the Valuation Date it was known that the Roundhouse had existed, but the extent and condition of the remains were unknown. It will be necessary for us to consider whether, in the course of preparing a notional application for planning permission for the development of the Appeal Site, the extent and condition of the Roundhouse would have become better understood than they were in reality at the Valuation Date.

5. At the hearing of the appeal the Secretary of State’s case was presented by Guy Williams KC, Andrew Byass and Brendan Brett who called the same team of expert witnesses as in the previous appeals, Mr Robert King (design), Mrs Amy Jones (heritage), and Mr John Adams (planning). CPL was represented by James Pereira KC and Caroline Daly. As expert witnesses they called Mr Gareth Wilkins (design), Mr Nicholas Bridgland (heritage), and Mr Ben Kelway (planning). We are grateful to them and to all who assisted in the preparation of the appeal.

6. Although the issues in this appeal are rather different from those in the earlier appeals, much of the factual and statutory background is the same, and we will again assume that the reader is familiar with the first of our decisions, Quintain City Park Gate Partnership Limited v Secretary of State for Transport [2025] UKUT 312 (LC) , ( Quintain ). The Appeal Site and its locality

7. At approximately 4.6 ha the Appeal Site exceeds the combined area of the other three Curzon Street sites and is one of the largest regeneration sites in the City Centre. It is an elongated rectangle sitting in the middle of Eastside, between Curzon Street to the north and the main railway line leading to New Street Station to the south. Its western boundary runs along New Canal Street and its eastern boundary abuts the Digbeth Branch canal.

8. At the Valuation Date the Site faced Millennium Point to the north on the opposite side of the new Eastside City Park for half of its length, and the Curzon Building, part of the new Birmingham City University campus, for the remainder. Site 2, which had been acquired by BCU for its proposed campus, lay across New Canal Street to the west and was cleared and awaiting development. At its eastern end, beyond the 30m-wide canal corridor, was Site 4, which was also vacant and cleared for development with an extant planning permission for 260 dwellings. Digbeth lay to the south, on the opposite side of the railway line.

9. At the northwestern corner of the Appeal Site, just outside its boundary at the junction of New Canal Street and Curzon Street, stands the Principal Building. This sandstone building, the world’s oldest surviving piece of monumental railway architecture, was designed by Philip Hardwick in the Greek Revival style to complement the Euston Station arch at the opposite end of the line (demolished in 1962). It was intended to provide an impressive point of arrival and departure for the London & Birmingham Railway Company’s new line, the first to join London to a major city. The building is approximately square on plan and has three storeys with a basement. The main entrance faces west towards the city centre and features four gigantic columns rising from a podium. The east front, facing the former station yard and visible to arriving passengers, is divided into three bays by two further columns. The effect is reminiscent of a massive classical temple to the new era of steam. With its Grade I listed status, the Principal Building is one of the most closely protected buildings in the country.

10. Tall buildings were an emerging feature of Eastside. The 19 storey City Locks building (now known as University Locks) was located at the northeastern end of the Site on the other side of the canal and had been completed by the Valuation Date. The Curzon Gateway PBSA development had also been completed immediately adjacent to Site 4 at the eastern limit of Eastside (it has since been demolished to make way for HS2). At the opposite end of the Appeal Site Birmingham City University still had consent to build its new university campus on Site 2, but its plans had been frustrated by HS2. Further west, residential and hotel development was under construction at Exchange Square in towers of 9, 16 and 27 storeys. On the north side of the Park, a PBSA building was under construction at The Emporium, featuring a 15 storey tower. Between Exchange Square and the Park, adjoining The Emporium, two residential buildings had recently been completed, Masshouse (15 storeys) and The Hive (16 storeys).

11. Beyond the railway line to the south of the Appeal Site, the Warwick Bar conservation area in Digbeth covers approximately 16 hectares of industrial and commercial development of the 19 th and the first half of the 20 th centuries, including canal basins and infrastructure. It also includes the entire length of the Digbeth Branch Canal. After passing through a tunnel beneath the railway viaduct the Canal runs north through Eastside. In this location the conservation area comprises a narrow corridor including the Canal and its associated locks immediately bordering the Appeal Site on its eastern side.

12. The Appeal Site itself had once been occupied by a Parcelforce distribution depot but this had been demolished many years earlier leaving it to be used as a surface level car park while awaiting acquisition for HS2. Relevant planning history and policy

13. Outline planning consent had been granted for the Appeal Site in 2008 for a mixed-use development of up to 130,000 sqm but this expired in June 2018 and was no longer capable of implementation by the Valuation Date. The 2008 consent described the approved development by reference to a number of development parameter plans, which identified the minimum and maximum floorspace which could be devoted to the main uses covered by the consent (office, residential, hotel and retail).

14. The Appeal Site lies within the Greater Birmingham and Solihull LEP Birmingham City Centre Enterprise Zone and was subject at the Valuation Date to the Birmingham Development Plan 2011 - 2031, which was adopted by the Council in January 2017. It was also subject to certain saved policies carried over from the previous Birmingham Unitary Development Plan including, in particular, policies concerning design and others relating to archaeological remains. We will refer to these in some detail when we consider the issues associated with the Roundhouse.

15. We considered relevant planning policies in Quintain at [74] to [91]. For the purpose of this appeal, the most significant parts of the Development Plan are the following: PG1 specifies overall levels of growth and identifies the intention to provide 51,100 additional homes in the City (against an assessed need for 89,000 homes) and 745,000 sqm of office floorspace, primarily in the City Centre. PG3 is concerned with place making and requires high design quality for new development which should make efficient use of land. GA1.1 identifies the City Centre as the focus for retail, offices, residential and leisure activity. GA1.2 anticipates significant growth in the City Centre, with potential to provide 12,800 new homes and 700,000 sqm of offices and designates the greater part of Eastside (including the Appeal Site) as one of the City’s “wider areas of change” where ongoing regeneration led by well-designed mixed-use development will enable the eastward expansion of the City Centre core. GA1.3 emphasises that development must support and strengthen the distinctive character of the quarters surrounding the City Centre; in the case of Eastside, this will mean maximising its role in learning and technology and realising its extensive development opportunities. TP12 is concerned with the historic environment and emphasises BCC’s commitment to managing new development in ways which will make a positive contribution to the City’s historic buildings and townscapes. TP27 requires new housing to contribute to the creation of sustainable neighbourhoods, which will be characterised by a wide choice of housing sizes, types and tenures to ensure balanced communities catering for all incomes and ages. TP33 is concerned with student accommodation and requires that PBSA development must not have an unacceptable impact on local neighbourhoods and residential amenity and must be of a scale and massing appropriate to its location. The key requirement of the Development Plan as far as Eastside was concerned was to secure the eastward expansion of the City Centre core through the provision of well-designed mixed-use development including office, technology, residential, learning and leisure.

16. A number of planning policy documents were agreed to be material (subject to the need to ignore parts predicated on the existence of HS2). These included the March 2003 High Places Supplementary Planning Guidance (SPG), which describes the policy approach to the development of tall buildings in the City. We summarised its relevant features in Quintain at [88] to [90]. It stipulates that, outside the City Centre core, exceptional circumstances will be required to justify buildings of more than 15 storeys. Other material documents are the Warwick Bar Conservation Area Character Appraisal and Supplementary Planning Policies of March 2008, and the Big City Plan of July 2011 ( Quintain at [91]).

17. It is convenient to mention here that in Secretary of State for Transport v Quintain City Park Gate Birmingham Ltd & Ors [2025] UKUT 7 (LC) , we determined that by 2018 there was a need for around 20,000 student bedspaces in the City as a whole, around 9,000 of which were required in the City Centre. The Certificate and the parties’ rival proposals

19. The Certificate against which the appeal is brought described the following as appropriate alternative development: “Mixed use development comprising buildings ranging between 7 and 41 storeys in height to a maximum of 181,260 sqm GIA floorspace, including up to 59,061 sqm GIA of residential floorspace (Use Class C3), up to 37,013 sqm GIA of purpose built student accommodation (Sui Generis), up to 79,748 sqm GIA of office floorspace (Use Class Bl(a)), up to 443 sqm GIA of incubator floorspace (Use Class B1a) and/or B l(c)) and up to 5,250 sqm GIA of retail floorspace (Use Classes Al-A5), up to 30,000 sqm GIA of educational floorspace, up to 11,148 sqm of hotel space together with up to 20,909 sqm GIA of basement and surface level car parking as well as public realm improvements and associated works.”

20. Illustrative details set out in the design and access statement supporting the CAAD showed four blocks of office development each of 7 storeys (with retail uses proposed at ground floor for blocks A, B and D), three blocks of PBSA of between 8 and 10 storeys and three blocks of residential accommodation of between 9 and 41 storeys. The height of the blocks immediately surrounding the Principal Building are stepped down – from 10 storeys at the ‘shoulder’ to the tall building, to 7 storeys around the Principal Building - such that it maintains its prominence on the skyline. The certified scheme is shown below, viewed from the north-west. CPL’s Alternative AAD and its variants

21. In addition to the Certificate, CPL’s pleaded case invited us to certify three alternative designs (the Alternative AAD), none of which had been included in its application to the Council. In each instance the height of the 41 storey block J has been reduced to 32 storeys, and the lost space redistributed to a higher 21 storey element within a bulkier block H, and by adding a part further storey on each of blocks A, B, and C (surrounding the Principal Building) and E, F and G, each of which changes from a U shape to a square doughnut with a central courtyard space.

22. The overall floorspace differs very little between the three Alternative AAD designs, ranging from 190,076 to 193,728 sqm excluding basements. Office and retail floorspace remain the same, and only the balance between residential, PBSA and education uses differs.

23. The first option comprises 193,728 sqm which could include up to 62,269 sqm of residential space, and 41,623 sqm of PBSA. The second alternative could include 28,564 sqm of residential and 71,676 sqm of PBSA, while the third version introduces 22,824 sqm of education space at the expense of PBSA, which reduces to 52,304 sqm. In each case offices remain at up to 85,516 sqm, and retail at a token 4,320 sqm.

24. Unlike the Certificate, which includes no minimum floorspace parameters, it is proposed that the Alternative AAD should include at least 28,564 sqm of residential space providing 365 bedrooms, or at least 41,623 sqm (1,631 bedspaces) of PBSA.

25. After considering our decision in Quintain , CPL put forward a series of four amendments to the Alternative AAD. Two of these maintained the footprint of the original design. The first lowered the height of blocks J and H to 24 and 19 storeys respectively and reduced the total floorspace to 184,980 sqm; the second further reduced the height of the two towers to 19 and 15 storeys, bringing the total floor area down to 182,316 sqm.

26. CPL’s remaining variants of the Alternative AAD repositioned buildings with the object of avoiding the site of the Roundhouse. The first (the Roundhouse Retained Scheme) combined blocks E and F and increased their height by two and one storeys respectively bringing them both to 10 storeys and relocated and reprofiled block H to open up the space between it and the new block E/F allowing space for a public park over the Roundhouse remains. The total floor area in this configuration would be 190,644 sqm. Viewed from the southeast, it would look like this (with the site of the Roundhouse lying between blocks F and H):

27. An alternative version of the Roundhouse Retained Scheme was also tabled, which we will call the Revised Roundhouse Option, in which block J was reduced in height to 24 storeys, and block H to 19 storeys, resulting in a total floor area of 183,592 sqm. The Secretary of State’s Scheme

28. It is agreed that the scheme designed by the Secretary of State would have been granted planning permission at the Valuation Date and should be included in the certificate issued by the Tribunal. It comprises a mixed use development of up to 138,175 sqm GIA, including retail, office, hotel and residential uses with two buildings of 15 storeys positioned on Plots 5 and 7. As with CPL’s schemes, blocks are located astride a central boulevard area. The scheme avoids building over the site of the Roundhouse. Viewed from the south-east, it would look like this:

29. The Principal Building is not shown on this illustration of the Secretary of State’s scheme, but it is located adjacent to Plot 01. The site of the Roundhouse lies between Plot 04 and Plot 05 and is left open and undeveloped in the Secretary of State’s design. The issues

30. The parties disagreed on matters of detail concerning heritage and design issues, which tended to merge into one another, and on planning issues. In the first category, heritage and design, the issue with the greatest potential significance concerned the Roundhouse, and we will deal with this first. The remaining issues under this heading concerned the scale and location of tall buildings, and the scale of development in the vicinity of the Principal Building at one end of the Appeal Site and the canal side at the other end, having regard to their heritage status. There were other disagreements over matters of design, but it is important to remember that we are required to assess each scheme of development on its own merits and to determine whether it would be likely to have secured planning permission at the Valuation Date. We are not required to choose between alternative proposals, or to rank them in order of preference. Unless a particular design issue is liable to make the difference between a scheme being judged compliant with the development plan (or otherwise acceptable) or being judged non-compliant, it is unlikely to be necessary for us to determine it.

31. The approach taken by CPL to the description of development to be included in any certificate we issue has been much more orthodox and straightforward than the approach taken by the owners of the other Curzon Street sites, each of whom sought a hyper-flexible CAAD. CPL has been content to define its proposals more tightly and as a result there are fewer planning issues in this appeal than in the others. Those which remain concern the balance of different uses which would have been likely to be permitted and the way in which they would have been secured. We will draw on our conclusions on the design and heritage issues to make a judgment whether each scheme is compliant with the development plan and on the overall balance between harm and benefit where the schemes infringe on the protection afforded by policy to the heritage assets.

32. The parties continued to debate the effect of the Supreme Court’s decision on the first preliminary issue and disagreed in particular on whether it could be assumed that the notional application for planning permission in respect of the Appeal Site was under consideration before any application had been made on any of the neighbouring Curzon Street sites. For what it is worth, we agree with Mr Pereira KC that that is the proper assumption to make, as no relevant applications had in fact been made and there is no basis on which they can be assumed. But it would nevertheless be a relevant consideration, as we explained in Quintain at [63], that the market, and the decision maker, would have expected proposals to come forward imminently for development on a comparable scale to that which is reflected in the CAAD application. The Roundhouse

33. At the beginning of the 19 th century the Appeal Site was occupied by market gardens and allotments and remained largely undeveloped. That changed, first with the construction of the Digbeth Branch Canal, and then with the coming of the railway in the 1830s, when the Site became the terminus of the first railway line between London and Birmingham. Amongst the structures built to accommodate the new railway were the Principal Station Building and the world’s earliest round house engine shed (the Roundhouse).

34. The Roundhouse was built to a design by Robert Stephenson and first became operational on 12 November 1837. It was a circular building with a central turntable and accommodation for up to 32 engines with their tenders in 16 bays. It was demolished around 1852 to make way for an additional stretch of line to New Street station, but its foundations, turntable base and radial inspection pits remained beneath the surface and, for the most part, have never been built over. Once New Street Station became available for passenger use in the 1850s, Curzon Street was dedicated solely to the transportation of goods. For that reason, it remained largely unaltered until the 1960s.

35. Mrs Jones and Mr Bridgland, the parties’ experts in heritage matters, are in agreement that the loss of the Roundhouse remains would represent the loss of an archaeological feature of national importance equivalent to that of a scheduled monument. No formal steps have been taken under the Ancient Monuments and Archaeological Areas Act 1979 to add the Roundhouse to the list of scheduled monuments (it is presumed because satisfactory arrangements have already been made by HS2 to secure its preservation), but that does not lessen its importance. They also agree that had the extent and condition of the Roundhouse remains been known at the Valuation Date, planning permission would have been refused for any form of development which did not ensure their preservation.

36. The Roundhouse was not mentioned by CPL in the material it submitted to the Council in support of the CAAD. In their report to the Planning Committee officers referred to the fact that archaeological excavations were being undertaken as part of HS2’s enabling works but there is no suggestion that either the City Archaeologist or English Heritage were consulted before the Certificate was issued. The Certificate itself includes a headline reference to a condition requiring prior submission of an archaeological method statement and the carrying out of necessary investigations, but no detailed drafting was supplied.

37. The issue which separates the parties concerns the degree of knowledge of the significance of the Roundhouse which may be taken to have existed at the Valuation Date and how in light of that knowledge a reasonable planning authority applying relevant policies would have required a developer to proceed. None of the important facts are in dispute and, to a large extent, the approach to be taken is a matter of law. The facts

38. Curzon Street station remained operational until its closure in the 1960s. At that point the Site was cleared, station structures were demolished (with the exception of the Principal Building and the substantial screen wall to Curzon Street itself), and the configuration of the remaining railway sidings was modified to facilitate construction of a parcel depot.

39. The design and approximate location of the Roundhouse was known from historical sources, including maps published in 1843 and 1855 and original construction drawings preserved in the archive of the National Railway Museum. A modern study of the early years of the railway in Birmingham which refers to these documents was published in 1990 and was available to be consulted at the Valuation Date.

40. The 2007 application for planning permission for major mixed-use development of the site was accompanied by a report prepared by a heritage consultant and a separate archaeological assessment. The first of these documents referred to the Roundhouse. It acknowledged the risk of damage to railway archaeology including its complete or partial loss as a result of construction and proposed, by way of mitigation, “archaeological investigation [to] assess the significance of any archaeological finds and take appropriate measures for their investigation and recording.”

41. The archaeological report which accompanied the 2007 application was a desk-based assessment which reviewed the available information “in order to clarify the archaeological potential of the site”, and to enable the need for design, civil engineering or archaeological solutions to be considered. Based on ground conditions and the discovery in 1997 of buried archaeological remains at the adjacent Curzon Street Goods Yard, the report concluded that there was a “moderate, rather than a high, potential” for below-ground remains to survive at the Site. The report anticipated that a condition requiring the recording of any remains would be imposed but made no mention of their preservation.

42. Before advising the Council’s planning committee on the application, officers consulted English Heritage. In their subsequent report they recorded that English Heritage did not object to the proposal in principle but summarised its advice as follows: ‘A full archaeological evaluation of the site should be undertaken both above and below ground. There appear to be the remains of early railway buildings on the Curzon Street frontage and there [is] also a likelihood that substantial underground remains may exist. Upstanding remains should be retained in situ whilst below ground remains may also be worthy of retention.’

43. Consistent with the advice received from English Heritage, the planning permission granted on 5 June 2008 included a condition that no development was to commence until an approved programme of archaeological work had been implemented. The extent of that programme of work was not elaborated upon, but the reason given for the condition suggested something less than the preservation of remains was contemplated: “it is important that archaeological remains are appropriately recorded prior to their damage or destruction by the development”. As the planning permission was never implemented, we assume no programme of archaeological works was drawn up or approved; we do not know what it might have provided for if remains of significance were identified in the course of the work required to satisfy the condition.

44. We were shown no other documents pre-dating the assumed cancellation of the HS2 scheme on 25 November 2013. Documents coming into existence after that date were commissioned by HS2 and were referred to as “scheme documents”. It was common ground that these cannot be taken into account as documents which would have existed at the Valuation Date. Whether the information which they contain can be assumed to have been available at that date is a different question, which we will consider later.

45. HS2 published its own Environmental Statement in November 2013 but it made no reference to the Roundhouse; nor did it appear in HS2’s gazetteer of heritage assets published with that Statement. The list of sources examined in the preparation of the Environmental Statement included one of the historical plans for the building. Mr Bridgland suggested that it was reasonable to assume that the authors were aware of the history of the Roundhouse and had decided to omit it from the gazetteer because there was no evidence of any survival of the structure. But the report refers elsewhere in general terms to the archaeology of the Curzon Street Station buildings being of moderate significance. The scope of the review was limited to designated and non-designated heritage assets within the land required for the construction of HS2, and it is not clear to us whether the authors were looking for archaeological remains. They did not refer to the published material which was available and made no assessment of the likelihood of significant remains being present below the surface. We are therefore not prepared to make any assumption that the omission of HS2 to take account of the Roundhouse was the result of an informed, or any, assessment of that possibility.

46. Of greater significance in the chronology is an Historic England research report prepared for HS2 in October 2015 which examined the surviving structures of the Curzon Street railway terminus (in particular the Principal Building) and considered the possibility of there being substantial archaeological remains beneath the Site. No excavation was undertaken by the authors and their report dealt relatively briefly with the subject of archaeology. They noted first that the warehouses erected after the demolition of the surviving railway buildings in 1966 were light steel structures and considered it “likely that their footings may not have caused widespread disturbance to the hidden archaeology below”. The authors highlighted the opportunity to discover the hidden archaeology of the first mainline railway from London and drew specific attention to the Roundhouse: “The circular Engine House of 1837-8 should also be mentioned. Successful excavations of engine sheds at York and Westbourne Park, Paddington have recently been carried out; the Curzon Street example pre-dates them by many years and would be one of the earliest such structures anywhere in the world to be investigated. The Engine House appears to have been in an area not subsequently concreted over and there is a good possibility that there may be substantial below-ground remains.”

47. Mr Bridgland explained the reference in Historic England’s research report to excavations of engine sheds at York and Westbourne Park. Neither of these had had anything to do with HS2 and both had occurred since the grant of planning permission for the Appeal Site in 2008. The work at York had been the subject of a report prepared in 2012 which was known to Historic England but was only made publicly available through the Archaeology Data Service in April 2019, after the Valuation Date. The excavations at Westbourne Park were the subject of published material and were known to Historic England. In both cases the remains of historic engine sheds were discovered to be in better condition than might previously have been anticipated.

48. The only other Curzon Street material predating the Valuation Date which was drawn to our attention was HS2’s own August 2017 Historic Environment Research and Delivery Strategy for the whole of phase one of the HS2 project. The purpose of this document of almost 300 pages and its intended readership are unclear. In a section headed “examples of urban development along the route” reference was made to the Curzon Street terminus, noting that much of the 19 th century infrastructure at Curzon Street had been demolished and removed.

49. The full extent and condition of the surviving remains of the Roundhouse only became apparent as a result of work undertaken by HS2. As a prelude to the commencement of enabling works a detailed desk-based assessment was published in April 2019 drawing on the Historic England research report of October 2015 and work undertaken by HS2’s consultants since June 2018. The extract with which we were provided was incomplete, but Mr Bridgland stated that reference was made in the document to the buried remains of Curzon Street Station, including potential for buried remains associated with the Roundhouse, which were assessed as being of moderate significance.

50. Following the desk based assessment, excavations were commissioned at a number of locations across the Appeal Site where it was thought remains of former station and railway buildings might be located. A detailed project plan was prepared in anticipation of this work which referred once again to the light-weight nature of the buildings constructed on the Site in the 1960s which were thought unlikely to have caused widespread disturbance of archaeological remains. Under the heading “Significance” the authors placed Curzon Street within a very small group of termini dating from the earliest days of the railways. Regarding the Roundhouse they said this: “Of particular significance is the round house and engine shed which is amongst the earliest known examples in the world. Previous engine shed investigations at York and Paddington have provided a considerable amount of information about their construction and use and, as the round house at Curzon Street is known to pre-date these examples, it has very high research potential.”

51. The authors of the March 2019 project plan noted that the Appeal Site had not been extensively concreted over in the vicinity of the Roundhouse and contrasted the history of Curzon Street as a whole with that of other stations: “The early closure of the original passenger stations and their immediate change of use to a goods station, with relatively little subsequent change, means that the station yard largely comprises two phases of development, whereas other early stations were frequently upgraded and rebuilt. Unlike its sister station at Euston, Curzon Street has been minimally redeveloped since its demolition in the 1960s and as such represents a unique opportunity to investigate a major early railway terminus in its entirety.”

52. The project plan was drawn up on the basis of desk-based studies by English Heritage and HS2 and without a single archaeologist’s trowel being put in the ground (other than at York and Paddington, where excavations of significance appear to have heightened expectations that important remains might be uncovered at Curzon Street). The expectation that remains of value might be uncovered by trial trenching proved to be justified, and in the Spring of 2019 the edge of the central turntable and part of the exterior wall of the Roundhouse were discovered. Further and more extensive work was then commissioned, and by early in 2020 the full extent of the Roundhouse was revealed at foundation level. At that stage, eighteen months after the Valuation Date, the uncovered remains were confirmed to be of high archaeological significance. The rival arguments

53. The Secretary of State’s position is that the presence of the Roundhouse, and the recognition of its remains as a structure of equivalent importance to a scheduled monument, would have precluded the grant of planning permission for any form of development which did not guarantee that the remains were retained and preserved. Of the various schemes before the Tribunal, only the Secretary of State’s Scheme and CPL’s two Roundhouse Retained Schemes would satisfy that condition. Mr Williams KC therefore submitted that the critical question was whether a scheme of archaeological investigation, such as was undertaken by HS2 in the Spring of 2019, would have been required prior to the form of development being approved. He relied on those parts of the Development Plan which concern heritage and archaeological remains in support of his case that at the Valuation Date a reasonable planning authority would only have been prepared to grant planning permission if exploratory work of the sort eventually undertaken by HS2 had already been completed. Had it been, the extent and condition of the remains would have come to light.

54. There is no dispute that, had the extent and condition of the remains been known at the Valuation Date, they would have been protected from harm by any relevant planning permission (as they have been in the development of the new Curzon Street Station by HS2). Nor is there any dispute that, if an evaluation of the remains of the Roundhouse had been required, it would have involved trial trenching which would have made the same discoveries as were in fact made by HS2.

55. CPL’s case was that, although at the Valuation Date the previous existence and location of the Roundhouse were known, no assumption can be made that any archaeological field evaluation had been carried out, because none had in fact been carried out. The extent to which remains were present and intact was therefore unknown and the quality and significance of any remains which might exist was also unknown. These propositions were said to be the result of applying the reality principle and the statutory cancellation assumption.

56. Mr Pereira KC relied on the outcome of the 2007 planning application, when permission was granted on the basis of purely desk-based assessments, without any prior excavation of the Appeal Site and without any condition inhibiting the full implementation of the consent even if remains of significance were subsequently discovered. English Heritage had raised no objection in principle to the grant of permission, despite being aware of the possibility that important remains might be present. Unless there had been some material change of circumstances, the outcome of the 2007 application was said to provide a firm foundation for the Tribunal to conclude that planning permission would have been granted at the valuation date without an intrusive archaeological assessment having first been required. On Mr Pereira’s case there had been no changes of substance in relevant planning policy between 2007 and 2018, and the only relevant change in the state of knowledge occurred after the valuation date, when the Roundhouse remains were uncovered by HS2.

57. Reliance was placed by CPL on the statutory cancellation assumption and on the question of what information would have been “known to the market” at the Valuation Date. It was not enough, Mr Pereira KC suggested, that certain facts (for example about excavations of engine sheds at York or Westbourne Park) might have been known in 2015 to a few specialists in railway archaeology working for Historic England. The relevant question was whether particular facts would have been known to the decision maker tasked at the Valuation Date with determining an application for planning permission for the Appeal Site. Mr Bridgland’s evidence was that it was unlikely that the Historic England research report prepared for HS2 in October 2015 would have been commissioned by any other developer. The likelihood was that Historic England would not have been involved at all in commenting on the potential for archaeological remains, which would have been left to the City archaeologist. A desk-based assessment undertaken to satisfy policy requirements would have been unlikely to include reference to the significance of excavations in York or Westbourne Park which would not have been known to most archaeologists and would not have been within the relevant geographical study area.

58. Mr Pereira KC also submitted that, even if the possibility of schedulable remains was known to the decision maker at the Valuation Date, that would not be an obstacle to the grant of planning permission for any of the schemes under consideration, because the condition of the remains was not known. The appropriate way to proceed in those circumstances would have been for a condition to be imposed to the effect that if remains were discovered and judged to be of schedulable quality, the developer would be required then to submit a scheme for their retention if it wished to develop. The cancellation assumption and the reality principle

59. As considerable stress was placed by Mr Pereira KC on the importance of the cancellation assumption required by section 14(5) , Land Compensation Act 1961 , we begin by considering its relevance. In this case, at the Valuation Date the material elements of the assumption were: (a) that the scheme of development underlying the acquisition had been cancelled on the launch date, and (b) that no action has been taken (including acquisition of any land, and any development or works) by the acquiring authority wholly or mainly for the purposes of the scheme.

60. The cancellation assumption obviously precludes reliance on actions taken by HS2 after the cancellation date, 25 November 2013, for the purpose of the scheme; these would include commissioning archaeological studies, whether desk-top or on the ground. Nobody has suggested in this case that reliance could be placed on the Historic England research report prepared for HS2 in October 2015, which plainly falls within the scope of section 14(5) (b).

61. The cancellation assumption requires that certain things which have happened should be ignored and treated as if they had not happened. But the Secretary of State’s case does not depend on removing real world events from the record. On the contrary, it invites us to take account of matters which were not known at the Valuation Date, namely the extent and state of preservation of the remains of the Roundhouse. Those matters were not known to the market, or to anyone else, at the Valuation Date and the cancellation assumption has no effect on them.

62. The Secretary of State’s pleaded case was based on the reality principle, not on any finessing of the cancellation assumption. It was asserted that the Roundhouse existed and that the reality principle required that its existence be taken into account. But that rather missed the point, since there has never been any debate about the existence of the Roundhouse. The issue is about knowledge of its existence, or to be more specific, it is about knowledge of the extent of its surviving remains and their state of preservation. Nothing was known of those matters at the Valuation Date because the only study which had been undertaken, in 2007, was a desk based review of sources, and there had never been any sample excavation of the Site.

63. The reality principle is a fundamental and long established principle of valuation in both statutory and contractual contexts which requires that any valuation take place against the background of the real world, except in so far as specified hypotheses otherwise require. It was analysed, with extensive reference to authority, by Lewison LJ in Harbinger Capital Partners v Caldwell [2013] EWCA Civ 492 , at [22]-[23]. It is enough to refer to his explanation of the scope and essence of the principle, at [22]: “There are many areas of the law in which an amount is to be ascertained by postulating a hypothetical transaction of one kind or another. Rating is perhaps the oldest example, for which purpose rateable value was measured by postulating the hypothetical grant of a tenancy from year to year. But hypothetical transactions abound in other areas of the law: for example compulsory acquisition, taxation and rent review clauses. Sometimes the hypothesis is statutory and sometimes it is contractual. The courts have developed a well-established set of principles that apply to both kinds of case. The most important of these is that things are to be taken as they are in reality on the valuation date, except to the extent that the instrument postulating the hypothetical transaction requires a departure from reality. In the old cases this is summarised in the Latin phrase rebus sic stantibus . In the more modern cases it has been described as the principle of reality: Hoare v National Trust (1998) 77 P & CR 366.”

64. But the reality principle is subject to exceptions. Lord Neuberger of Abbotsbury gave examples of these in Transport for London (formerly London Underground Ltd) v Spirerose Ltd [2009] UKHL 44 , at [50], in a passage quoted by Lord Sales and Lord Hamblen in their joint judgment in Secretary of State for Transport v Curzon Park Ltd & Ors [2023] UKSC 30 (the preliminary issue in these proceedings), at [64]: “…if a statute directs that property is to be valued on an open market basis as at a certain date, one would not expect any counterfactual assumptions to be made other than those which are inherent in the valuation exercise (such as the assumption that the property has been on the market and is the subject of a sale agreement on the valuation date) or those which are directed by the statute”.

65. The stage of the valuation exercise with which we are concerned is the identification of the planning status of the Appeal Site, which it is the purpose of a CAAD to define. Section 14(3) of the 1961 Act requires that it be assumed planning permission is in force at the valuation date for development which is appropriate alternative development. At the Valuation Date appropriate alternative development was defined in section 14(4) as: “(a) […] 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 subsection (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.”

66. Section 14(4) (b) requires an assumption that an application has been made for planning permission and that it has been decided on the valuation date or at some later date. Of course, in reality no such application will have been made, but it must be assumed to have been made, because the statute directs that assumption.

67. In Harbinger Capital Lewison LJ included in his explanation of the reality principle the qualification that, where the hypothesis “inevitably entails” a particular consequence, the valuer must take that consequence into account (referring to East End Dwellings Co Ltd v Finsbury BC [1952] AC 109 ). In Spirerose, Lord Neuberger gave examples of counterfactual assumptions “inherent” in a valuation exercise, such as that the property has been on the market and is the subject of a sale agreement on the valuation date. Similar unstated assumptions are inherent or inevitably entailed in the hypothesis of an application for planning permission. An application for planning permission must meet the requirements of the local planning authority regarding the information to be provided, and any application which fails to provide the required information is likely to be refused rather than to be granted. An assumption that a notional application has been made and that it complied with the requirements of the local planning authority is therefore an inherent or essential part of the exercise of identifying appropriate alternative development. The assumption must be made, although it departs from reality; in reality, there was no application for planning permission, and no information was provided.

68. We therefore agree with Mr Williams KC that the critical question is whether a scheme of archaeological investigation such as was undertaken by HS2 in the Spring of 2019 would have been required by the local planning authority prior to any application for planning permission being approved. Relevant national and local policy

69. In his written and oral evidence, Mr Bridgland explained in detail why he considered that there had been no relevant change in planning policy between 2008 and 2018. He emphasised that relevant policy and guidance had been expressed in discretionary terms, leaving choices to the planning authority about what to do in the light of the evidence. For that reason he considered it relevant to consider the way in which the Council acted in such matters, and he included an example showing how it had applied its policies in respect of a potentially important archaeological site in the City. But we will begin with the policy position.

70. In 2008, relevant national guidance was provided by Planning Policy Guidance PPG 16 which set out the Secretary of State's policy on archaeological remains on land, and how they should be preserved or recorded. The guidance encouraged early discussion between developers and planning authorities before detailed design work was undertaken. Where a site has been identified as having archaeological sensitivity it suggested that a developer “may wish to commission their own archaeological assessment by a professionally qualified archaeological organisation or consultant.” This would normally be a desk-based assessment of existing information. If such research indicated that important archaeological remains may exist, it would be reasonable for the local planning authority to request further field evaluation (“a rapid and inexpensive operation, involving ground survey and trial trenching”). If it was not provided, permission could be refused on the grounds that the proposals were inadequately documented.

71. The Council’s own policy at the time of the 2008 planning permission was explained in its Archaeology Strategy, Supplementary Planning Guidance issued in 2004. This placed emphasis on ensuring that all archaeological work in the City was conducted in accordance with the best professional practice. The purpose of archaeological assessment (a desk-based process), and evaluation (involving limited fieldwork) was to ensure the Council had sufficient information. “Where existing information suggests that a proposed development is likely to affect archaeological remains, above or below ground, the City Council will require a Planning Application […] to be accompanied by an archaeological assessment, normally including an archaeological evaluation, depending on the extent of proposed development and the archaeological sensitivity of the location. Such information should also include details of appropriate mitigation measures. The application will be refused if this information is not submitted.”

72. PPG16 was replaced in 2010 by a new national policy document, which in turn was replaced by the 2018 edition of the National Planning Policy Framework, in force at the Valuation Date. Paragraph 189 advised that: “… Where a site on which development is proposed includes, or has the potential to include, heritage assets with archaeological interest, local planning authorities should require developers to submit an appropriate desk-based assessment and, where necessary, a field evaluation.”

73. The Birmingham Development Plan adopted in 2017 emphasised the importance of maintaining and improving the quality of the City’s built environment (including its historic environment) to help strengthen its local distinctiveness, and suggested that: “[the City’s] design and archaeology standards must be higher to reflect that of a major international City. Birmingham’s unique heritage assets have a positive role to play in this.”

74. These general aspirations found expression in Policy TP12. The historic environment would be “valued, protected, enhanced and managed” and “great weight” would be given to the conservation of the City’s heritage assets. Proposals for new development affecting heritage assets would be determined in accordance with national policy. Applications for development on sites that potentially included heritage assets of archaeological interest would be “required to provide sufficient information to demonstrate how the proposals would contribute to the asset’s conservation.” This information would include desk-based assessments and archaeological field evaluation “as appropriate.” As Mr Bridgland suggested, whether it would be appropriate in any particular case to require a field evaluation would depend on whether the Council considered that it already had sufficient information to enable a decision to be taken concerning the impact of the proposed development.

75. Although the reference in the Development Plan to the need for the City’s archaeology standards to be higher might suggest a change in approach, we are sure that Mr Bridgland is correct in thinking that the general effect of policy, and what was expected of developers, was broadly the same in 2018 as it had been in 2008. In particular, both the 2004 SPG and Policy TP12, required the provision of sufficient information, garnered “normally” (2004) and “as appropriate” (2017) from a limited intrusive physical investigation of the site, before a decision was taken. Without it, an application was likely to be rejected.

76. Mr Bridgland drew our attention to two sites close to the Appeal Site for which planning permission had been granted in 2019 and 2020 on the basis of desk-based assessment only, without any requirement for an archaeological evaluation. In one case it was considered that the remains of 19 th and 20 th century industrial and residential properties were likely to be of low significance, but in the other, at Martineau Galleries, the remains of a medieval settlement of potentially medium or high significance were recognised. The potential for high significance was attributed to burial remains rather than the remains of built structures. Planning permission was granted subject to a condition that significant archaeological assets should not be removed from the site without record. Mr Bridgland relied on the willingness of the Council to grant permission in those cases when the only information available to it was a desk based assessment in support of his view that permission is likely to have been granted for the Appeal Site without any prior excavation being required, as it had been in 2008. Discussion

77. What happened in 2008, when planning permission was last granted for the Appeal Site, is relevant but not decisive in considering what is likely to have happened on an application in 2018. That is for two reasons. First, because a fresh decision would have been required in 2018 and on matters involving professional judgment, different decision makers might quite reasonably come to different conclusions. And secondly, because the question for us is not about how the Council would have determined an application in 2018. In Leech Homes Ltd v Northumberland County Council [2021] EWCA Civ 198 , at [21], the Court of Appeal approved the approach taken by this Tribunal in that case in determining an application for a Certificate: "… when considering under s.14(4) (b) whether planning permission for the appellant's scheme could reasonably have been expected to be granted at the valuation date, or later, the Tribunal is not required to ask itself how Northumberland County Council is likely to have determined the notional application for consent. The Tribunal must put itself in the position of a reasonable decision maker, properly applying the law. It follows that, if at the statutory valuation date the County Council's officers and members had a particular understanding of the meaning of a relevant planning policy, the Tribunal is not required to adopt that understanding or to interpret the policy in the same way, but must decide for itself what the policy means, and apply it correctly."

78. How then would a reasonable decision maker have responded to an application for comprehensive development of the Appeal site at the Valuation Date? We assume pre-application discussions would have taken place in which the fact that the Roundhouse had existed on the site would have been acknowledged. It is likely that an initial desk-based assessment would have been provided, but it seems unlikely that any intrusive evaluation would have been undertaken at that stage. The question is whether one would then have been required by officers.

79. We do not know what information a desk-based assessment would have contained, but it is reasonable to assume that it would have been no less detailed than the archaeological study provided in support of the 2007 application. That referred to the discovery in 1997 of buried archaeological remains at the adjacent Curzon Street Goods Yard, and concluded that there was a “moderate, rather than a high, potential” for below-ground remains to survive. It is possible, but less than likely, that a suitably qualified consultant would have been aware of the excavations at Westbourne Park which were public knowledge, and even those at York, which were not yet the subject of published study. Had that additional information been available, it is reasonable to assume that it would have increased the expectation that significant remains might have survived.

80. It is also reasonable to assume that officers would have been familiar with the fact that advice had been sought from English Heritage in 2007, because it was referred to in their Committee report of June 2008. The advice was summarised in the report as having identified “a likelihood that substantial underground remains may exist” and that these “may also be worthy of retention”. The recommendation from English Heritage at that time, as reported to the Committee, had been that “[a] full archaeological evaluation of the site should be undertaken both above and below ground.”

81. The Council’s officers might have consulted English Heritage again but, according to Mr Bridgland, budgetary considerations had caused it to draw back from involvement in giving advice on below-ground archaeology and his expectation was that it would not have been able to contribute anything meaningful. In particular, he was fairly positive that the specialist at English Heritage who had prepared its research report for HS2 in October 2015 would not have been consulted on any application for advice received from the Council in 2018.

82. Faced with a moderate potential for below-ground remains of early railway archaeology to exist across the Site, all of which would be at risk from the development proposed, we can see no reason why a reasonable planning authority would not require further clarification of the significance of any remains before being willing to approve a grant of planning permission. In agreement with Mrs Jones, we find that trial trenching would have been insisted on. That trial trenching would have revealed the remains which are now known to exist. As a result any application for planning permission decided on the valuation date would have been determined in the knowledge that the Site contained remains of schedulable quality.

83. The critical consideration to our mind is that, making the cancellation assumption, the extent and condition of any remains could not be assessed at all on the basis of the known facts. A limited field evaluation was therefore essential to enable an informed decision to be made on any application. The relevant policies of the development plan do not exist to protect only those archaeological remains which are known to be significant; they are designed to enable planning authorities to deal with sites where the facts are unclear, and to put them in a position to assess the significance of any remains which may exist. Applying NPPF, paragraph 189, a reasonable planning authority would have concluded that the Appeal Site had the potential to include heritage assets of archaeological interest. A field evaluation could therefore quite reasonably be called for if it was necessary. The extent and quality of the remains were unknown, but those were the matters which would determine what, if any, protection was merited. Without clarity regarding the extent and quality of the remains an informed decision could not be taken. Instead, the authority would have to proceed on the basis of speculation, or to assume that nothing worth preserving still existed. To proceed on the basis of speculation or indifference would not have been consistent with Policy TP12, which afforded “great weight” to the conservation of the City’s heritage assets.

84. This conclusion is entirely consistent with the advice given by English Heritage in 2007, that a full archaeological evaluation , and not simply an assessment, should be undertaken. There is no basis on which to assume that different advice would have been available from English Heritage in 2018. Accepting Mr Bridgland’s evidence, the likelihood is that there would have been no new advice from English Heritage.

85. Our conclusion is not undermined by the grant of planning permission in 2008. No reason was given in the officer’s report for disregarding the advice of English Heritage. Nor was the committee advised whether or how the standard archaeological condition proposed in the report would protect or enhance the substantial underground remains which were thought likely to exist and which might be found to be worthy of retention.

86. We bear in mind that the Council has been willing to take a more relaxed view of the need for intrusive investigations at other sites, but every site is different and, as we have explained, our task is not to determine how the Council would have dealt with an application. On the other hand, we give no weight to the fact that the Secretary of State did not rely on the presence of the Roundhouse until after its remains had been uncovered by HS2, which seems to us to have no relevance to the issue we have to determine. Conclusion

87. The parties agreed that the only proposals which could have secured planning permission if the extent and condition of the remains of the Roundhouse were known to the decision maker were the Secretary of State’s scheme and CPL’s Roundhouse Retained scheme. All other schemes would have been refused permission because of the damage they would have done to the remains.

88. We do not accept Mr Pereira KC’s fall-back argument that lack of knowledge of the condition of the remains would have led to the imposition of a condition requiring a future evaluation of the Site after permission was obtained, on the understanding that if schedulable remains were discovered a scheme for their retention would have to be agreed before the development could proceed. That suggestion appears to us to be inconsistent with the consensus between the experts. Nor were we shown any example of such a condition being imposed. National and local policy provided for decisions to be taken only after any necessary investigations had been undertaken, which is the converse of what Mr Pereira proposed. Heritage and design issues

89. There is much common ground.

90. First, all of the alternative designs feature roughly rectangular buildings arranged either side of a primary central boulevard that runs from the rear of the Principal Building in the west towards the canal in the east, with a secondary road structure which seeks to mirror the historic grid pattern of the roads to the south of the railway line. The Principal Building is respected and enhanced by the formation of a new public square leading to the boulevard.

91. Secondly, it was agreed that the principle of tall buildings on the Site would be acceptable, subject to size, location, and orientation. They could act as gateway markers and way finders and would be best placed at the eastern end of the Site, remote from the Principal Building; both parties’ designs place taller buildings in this location.

92. Thirdly, the heritage experts agreed that in principle, development of the Appeal Site could bring regeneration benefits, but that each of the options before us would result in less than substantial harm to the most significant heritage assets.

93. It was a feature of the disagreements between the design experts that they were each asked, in effect, to defend their own work. Mr King designed the Secretary of State’s scheme, and Mr Wilkins had been involved in the Appeal Site since 2017 when he and his firm drew up the design which became the subject of the Certificate. This put them in a problematic position and made objectivity difficult; it also framed the debate between them as a competition between rival designs, which is not the object of the exercise. Many of the issues which separated the experts were matters of detail which seem to us to be out of place in a CAAD appeal. The purpose of a CAAD is to aid in the valuation of the Appeal Site, not in its development in the real world, and our focus is on broader parameters rather than on minutiae.

94. Each of the proposed schemes would entail the demolition of the last remaining section of the screen wall which separated the station from Curzon Street, but neither of the heritage experts saw this as an obstacle to planning permission being granted. The disagreements on heritage issues concerned the impact of the proposals on the setting of the heritage assets. Mrs Jones considered that the Secretary of State’s scheme would result in less than substantial harm at the low end of the spectrum of harm; the Certificate scheme, the Alternative AAD, and the Roundhouse Retained Schemes would, in her opinion, cause harm at the high end of the spectrum; and the three variants (24 storeys, 19 storeys and the Revised Roundhouse Option) would lie in the middle of the spectrum. Mr Bridgland considered that in all cases, the effect on the heritage assets would be minimal. Tall buildings

95. The design certified by the Council in the CAAD features a building of up to 41 storeys, Block J, at the eastern end of the Site. In reporting to the planning committee on the proposal officers considered that the tall building would provide a bold and positive addition to the city’s skyline, with the view from the East being particularly dramatic. Its elevations were thought to create “visual drama” by combining relatively narrow width with significant height. Officers pointed out that many of the locations identified in the High Places SPG had already been developed or consented and that tall buildings which were now coming forward needed to be justified on the grounds of exceptional circumstances if they were to be supported. They were nevertheless satisfied that such a case had been made out for a tall building on the Site, positioned at the “eastern gateway” into Eastside from Lawley Middleway. That assessment has not been questioned by either of the design experts and we consider that it is a reasonable one.

96. The design for which CPL sought and obtained its Certificate from the Council proposed a single tall building, Block J. The Council’s City Design team commented approvingly on what they saw as an “overarching architectural language” adopted across the Site which tied the whole scheme together. This overarching language combined extensive public realm and buildings of a consistent “human scale” appropriate to the emerging character of the area. Officers noted that Block J was an exception to this scale, but considered it justified by its gateway position and by the scale of redevelopment emerging in Eastside. The tower would have a satisfactory relationship to the shoulder element of the building, which itself would be enhanced by the adoption of a standard height for all of the buildings fronting Curzon Street.

97. The Alternative AAD now proposed by CPL departs further from the principle of a development on a consistent scale by introducing significant changes to Block H. What had previously been a 10 storey building with an open courtyard at its centre now includes a second 21 storey tower in an arrangement which dispenses with the courtyard and is higher and bulkier. As Mr Bridgland accepted, the addition of a second tower has an unfortunate effect on the setting of the Principal Building, which we will consider further below.

98. All we were told about CPL’s early discussions with the Council’s officers was that they had encouraged the positioning of a tall tower at the eastern entrance to Eastside. We do not know if a scheme featuring a second tower was discussed with them at any stage. It should be appreciated that while the Tribunal will consider each scheme on its merits, a scheme which has been certified as appropriate by the Council starts with a distinct advantage over larger schemes which the Council and its professional officers have never been asked to consider. The Tribunal will give weight to the views of the Council, positive or negative, but will also be sceptical of larger schemes which have not been tested at the application stage. If no explanation is offered why a larger scheme was not included in the original application so that it could be assessed, the proposer risks creating the impression that it did not believe its larger scheme would be acceptable to officers and chose not to submit it. If it takes its role seriously, as BCC clearly has in these cases, a local planning authority is in the best position to make the initial decision. The legislation gives the Tribunal the role of determining appeals against an authority’s decision and parties may expect that a scheme which has bypassed that initial scrutiny will be viewed with scepticism.

99. We are satisfied that a second tower, added to Block H, would not have been met with approval. It is not consistent with the High Places SPG and cannot claim to be justified on exceptional grounds because it does not occupy the gateway position taken by Block J. The inclusion of a taller element, visible from viewpoints in the Park and along Curzon Street, would compromise the original design principle which took its lead from the Principal Building to create the “overarching architectural language” which officers were keen on. For Block H to protrude above the Park-side buildings in important views would degrade the impact of the consistent parapet of Blocks B, D and G and upset the relationship between the whole façade and the 41 storey tower at the eastern end of Block J.

100. As for the lower variants of CPL’s Alternative AAD, each of these reduces the height of the tall tower of Block J (to 32, 24 or 19 storeys), and by doing so diminishes the visual impact and attraction which officers saw in the original 41 storey version.

101. In our judgment the 41 storey tower would have been acceptable and would have obtained planning permission, but the bulkier Block H which features in the Alternative AAD would not. The 32 storey Block J would also have been acceptable. The 24 and 19 storey versions might have been thought insufficiently ambitious for an important gateway position but we note that Mr King considered that the gateway function would be performed satisfactorily by a building of 15 storeys. Mr King’s objections to Block J were, first, that he considered it overbearing above 15 storeys (with a 10 storey shoulder) and, secondly, that he thought it was in the wrong place. Our own assessment, accepting Mr Wilkin’s evidence and informed by the officers’ enthusiasm for a dramatic building at the entrance to Eastside, is that Block J is located in the most appropriate place and that a particularly tall building (41 or 32 storeys) would have obtained consent. Paradoxically, we consider that the case for an exception to the High Places guidance diminishes in its force as the height of the tower is reduced. Buildings of 15, 19 or even 24 storeys might lack much of the impact which justifies the taller structures. These iterations of the original design were conceived as an afterthought and never put to the Council; we were left unconvinced by them and are unable to find that they would have achieved permission in that form. The setting of the Principal Building

102. All of the variants before us seek to enhance the setting of the Principal Building by creating a new public square on what was originally the rear, or track, side of the building. Mr Wilkins explained the careful thought behind his design of the square and buildings surrounding it, each having a direct dimensional relationship to the height and width of the Principal Building, the intention being for it to become the most prominent member of a harmonious group rather than being seen, as it is currently, as an isolated object.

103. The parapet of the Principal Building is approximately 17m high, at 127.5m AOD. The expired 2008 consent for the Appeal Site featured adjoining buildings whose shoulders stepped down to this height, with higher elements more centrally in each block. The extant consent for Site 2 (which lies opposite the Principal Building on its western side) adopted the same approach, by limiting the height of the buildings adjoining the Principal Building so that they did not exceed the height of its parapet. But none of the options presented to us, including the Secretary of State’s design, respect that principle and in all cases the buildings adjacent to the Principal Building exceed the height of its parapet.

104. In recommending the grant of the Certificate, Council officers were satisfied that taller buildings surrounding the square would be acceptable, with 7-storey (30.75m high) shoulders and plant rooms on an eighth storey. They believed that, because of its position in the new square, the Principal Building would successfully relate to the surrounding office buildings which would not be overly dominant. The proposed square would ‘allow the building “room to breathe” as a free standing object building’. Overall, officers considered that the blocks would not cause substantial harm to any of the designated heritage assets and would provide a positive addition to the city core.

105. CPL’s Alternative AAD and its variants add further storeys to the office blocks which surround the new square, but these are stepped back. Mrs Jones very fairly focussed her concerns on the shoulder heights, which remain the same in all of CPL’s designs. The Secretary of State’s scheme has buildings with 6-storey shoulders, which at 131.95m AOD are some 4 metres higher than the Principal Building’s parapet, with 8 and 9 storey elements towards the rear of the blocks. Accordingly, the dispute on what would be an appropriate height for the buildings immediately surrounding the Principal Building is limited to whether 6 or 7 storeys would be acceptable. In Mrs Jones’ view, 7 storeys structures would be overbearing and would dwarf the Principal Building and detract from its prominence. We do not agree and believe that Mrs Jones makes insufficient allowance for the separation between the various buildings and the effect of the open space. We regard Mr Wilkins’ design as sympathetic and having considered key views and visualisations of the proposed arrangement while on our walking tour, we agree with the Council’s officers that 7 storeys would be acceptable.

106. As regards the effect of the bulkier block H on the setting of the Principal Building, there was little between the experts, Mr Bridgland fairly accepting that the effect was ‘unfortunate’. We agree that this is a further objection to Block H in the alternative AAD schemes proposed by CPL. The conservation area

107. The heritage experts’ fairly narrow disagreement concerned the extent of less than substantial harm which the various options would cause to the setting of the Warwick Bar conservation area. Mrs Jones considered that both the Secretary of State’s scheme and CPL’s version with a 19-storey tower on Block J would cause harm to the setting of the conservation area at the low end of the spectrum, while all other options would cause harm lying in the middle of the spectrum. Mr Bridgland considered any impact would be minor and assessed harm at the low end of less than substantial harm in all cases.

108. Mrs Jones’ assessment of harm was based on three adverse impacts. The first concerned the impact of the proposals on the canal corridor adjoining the Appeal Site to the east. She considered that a 41 or 32 storey tower would distract someone walking along the canalside, drawing their eye up and away and affecting their appreciation of the linearity and horizontality of the canal, whereas a 24 storey tower would be less distracting. She clarified in cross examination that as far as the effect on the appreciation of linearity was concerned, all options resulted in less than substantial harm at the low end of the spectrum; her assessments at the middle of the spectrum were based on an overall analysis. We agree that any distraction which the tower would create from an appreciation of the conservation area in this location would be minor, and the difference between the various options would, in this respect, be imperceptible. Mrs Jones’s second concern was the impact of the proposals on specific views from the main part of the conservation area to the south. However, having walked the conservation area and considered the parties’ visualisations, we agree with the Council officers who commented that ‘while the development would be visible in views from the south, the railway viaduct formed a clear boundary between the large format blocks of Eastside and the finer/lower scale within the conservation area.’ Mrs Jones’ third, and most significant, objection was that the proposals would sever what she perceived as the important historic link between the canal and the railway. However, she agreed that this relationship did not feature in the conservation area appraisal as a special interest of the conservation area. On the evidence before us, we are not persuaded that a reasonable planning authority would identify any connection as part of the special interest of the conservation area. In summary, we consider that the highest level of harm that any of the options would generate would be at the low end of less than substantial harm. The listed railway bridge

109. The grade-II listed 1838 railway bridge which spans the Digbeth Branch Canal is one of the earliest surviving examples of railway architecture in England. It has a functional relationship with the surviving railway structures (the Roundhouse remains and the Principal Building) but its setting has been compromised by demolition and redevelopment, with the southern elevation of the bridge concealed behind a later bridge so that only the north elevation is now visible.

110. Mr Bridgland considered that all of the options before us would result in less than substantial harm to the setting of the 1838 bridge and, in particular, that the harm which would be caused by the certified scheme and the Alternative AAD would be minimal. Mrs Jones identified less than substantial harm at the middle of the spectrum for the scheme in the Certificate and CPL’s other options, and at the low end of the spectrum for the Secretary of State’s scheme, the Roundhouse Retained Schemes, and the Alternative AAD variants with the 19 storey block J and 15 storey block H.

111. It is common ground that historically there were no direct views between the bridge and the Principal Building as these would have been blocked by other railway buildings. On the Valuation Date, it was possible to see both the bridge and the Principal Building from the path leading down to the canal, as the Appeal Site was cleared. But as Mrs Jones agreed, the Principal Building is not visible from the canal, where the best view of the bridge can be seen, nor is the bridge visible from the Principal Building. Mrs Jones’s point was that an appreciation of the historic link between the two structures was possible, based on their proximity, and that in that way the Principal Building contributed to the setting of the listed bridge. In our judgment, the contribution which each of the structures makes to an abstract appreciation of the historic significance of the other will not be materially different in any of the schemes we are considering. The harm which the schemes would cause to the setting of the conservation area would be less than substantial harm in all cases right at the bottom of the spectrum. Other design issues

112. In his written evidence, Mr King said that in both the BCC approved scheme and CPL’s alternative AAD, there was monotonous massing to the Curzon Street frontage, but did not explain why in either his written or oral evidence. Mr Wilkins disagreed and thought that his design helped to define the southern edge of the Park by providing a visually coherent and consistent sequence of elevations of the same scale, enhancing a sense of enclosure; this was a different situation, he said, from our criticisms in Quintain where a long 96m wall was shielding the city centre from Eastside. We accept Mr Wilkins’ evidence.

113. On street widths, despite his written evidence, Mr King accepted that a 17m width for the boulevard would be acceptable, given the largely pedestrianised nature of CPL’s schemes. He also accepted, in terms, that his objections were largely based on his preference for an alternative, rather than addressing the question of whether this aspect of the schemes would be acceptable to a reasonable planning authority, as they were to the Council when granting the Certificate. We do not consider street widths would be a reason for refusal.

114. As regards public open space, during cross examination Mr King’s objections largely fell away. The main remaining issue was Mr Adams’ concerns about the amenity space for the proposed PBSA blocks in the Alternative AAD.

115. In the Certificate, PBSA Blocks E and F were U-shaped, with courtyards facing north within 8 and 9 storeys, while Block H’s ‘hook’ configuration comprised 10 storeys around a central courtyard. Block G, in residential use, was U-shaped with an east-facing courtyard, and the Design and Access statement highlighted the benefits to residents of views over the Park and a newly created central garden. In each case the amenity space was at ground level and open to the public. Officers noted the large private residential amenity space adjacent to the canal and were content that the scale of the PBSA and residential blocks, with the rest of the masterplan, ‘would create a comfortable space along the new central route through the scheme with a satisfactory level of daylight’. We agree.

116. Things changed in the Alternative AAD designs. Blocks E and F were combined, and the courtyard to Block G was enclosed on all sides. Amenity space in Blocks E, F, G and H moved to podium level, and Blocks H, I and J also benefitted from roof-level communal amenity spaces. Mr Adams accepted that the creation of private amenity space in Block G was of benefit to students, when compared to the publicly accessible space in the Certificate. However, he was concerned that two if not all three of the blocks would be surrounded by tall buildings of 10 to 12 storeys, generating a very poor quality of daylight and sunlight.

117. In the case of the Roundhouse Retained Schemes Mr Adams’ objections fell away because he was satisfied that the introduction of further open space on the Roundhouse site would provide a good distribution of open spaces to serve all residents and users of the Site. But, in the absence of that space, he considered Blocks E, F and G would require some adjustment to their scale and massing to overcome his concerns about the quality of the environment in those blocks.

118. Mr Wilkins attached to his witness statement a Daylight and Sunlight Assessment of the competing schemes prepared by Lichfields. The author of the report was not called as a witness. It assessed the various schemes by reference to the non-mandatory guidance contained in the BRE June 2011 report ‘Site Layout Planning for Daylight and Sunlight: A Guide to Good Practice’, which provided a target of 50% of an area receiving two hours or more sunlight on the spring equinox. We found this report of limited relevance; even in the Certified Scheme Blocks E and F would not achieve the 50% suggested 2 hour level, and the report’s author was not called to give evidence.

119. As Mr Pereira KC pointed out, there is no development plan policy for private communal open space for PBSA or residential development, nor a specific policy on daylight/sunlight. But we accept Mr Williams KC’s submission that these aspects of design form part of the overall national planning policy requirement that developments create a ‘high standard of amenity for existing and future uses’.

120. In our view the modification of Block G from being an open-sided 9 storey building, to its new form in the Alternative AAD as a 10 storey doughnut is significant. The enclosure of the Block, even more than the unhelpful increase in its height, would result in an oppressive environment for the students living there, and does not meet the requirement for good design. Summary

121. Drawing the threads together at this point, for the reasons given above, we consider that both the 41 and 32 storey Block J could have received planning permission but the lower versions of that tower, and the higher and bulkier 21 storey version of Block H included in the Alternative AAD schemes would not be compliant with the development plan and would be refused. The 10 storey version of Block H included in the Certificate Scheme would have been acceptable in height and design, but it would not have been granted permission because of the damage it would do to the remains of the Roundhouse. For that reason we consider that without further adaptation the Certificate Scheme as a whole would not have obtained consent.

122. In our judgment, a design which located Block H in the position it occupies in the Roundhouse Retained Scheme, but limited its height to the original 10 storeys, and which retained the other important principles of the Certificate Scheme such as its floor levels and consistent datum height would have been compliant with the development plan. Block G would have been acceptable in its original U-shaped configuration, but not in its revised doughnut form. No scheme in exactly that form has been advanced but if the parties are able to agree the relevant parameters, we would be prepared to certify such a scheme as appropriate alternative development. Planning Balance

123. The development we have outlined above would bring significant public benefits, not least by improving the setting of the Principal Building, which would be brought back to life and rescued from its sorry isolation at the valuation date. These benefits would easily outweigh the relatively modest harm that development would cause to the setting of heritage assets. Balance of uses, parameter plans and floorspace conditions

124. The remaining issues are more straightforward than in the other three appeals mainly because, as Mr Pereira KC and Ms Daly put it, CPL have eschewed an ‘all you can eat buffet’ approach and have invited us to consider four set menus. There was also a commendable consensus between Mr Kelway and Mr Adams, who agreed that the mix and location of uses should be controlled by a maximum floorspace condition and a land use parameter plan. Helpfully, none of the options include differing principal uses in the same block (apart from ground floor retail which was uncontentious).

125. Where the experts differed was in respect of the need for minimum floorspace requirements. We take the same view as we did in previous appeals and have no doubt that these are necessary to ensure that a genuine mix of uses is delivered. The experts have agreed that if that is our conclusion Mr Kelway’s condition 3b in their supplementary joint statement should apply. The parties have agreed the principle and may consider that is sufficient, but if they wish us to include a specific parameter plan cross referenced to floor areas for each building it will be necessary for them to provide an agreed draft for our approval.

126. As for uses, we do not consider it necessary to prescribe which blocks should be allocated to which use class, provided that, aside from ground floor retail, each block is put to a single use. This requirement, combined with minimum floor spaces, would be sufficient to ensure a genuinely mixed scheme.

127. Finally, as regards phasing, the experts agreed that the construction of the development should be phased, in principle, but disagreed on the scope and wording of an appropriate condition. Mr Adams proposed four conditions: first, that no more than 50% of the PBSA space may be occupied before commencement of the residential and office phases; secondly, that no more than 50% of the PBSA and offices may be occupied prior to the main public spaces including the Curzon Station Square, the boulevard connecting the square and Curzon Street to the canal, and the Roundhouse public square, being completed and open to the public; thirdly, that in each residential plot where affordable housing is to be provided, the affordable housing should be completed before the last market unit, and should be distributed proportionately and constructed in accordance with a programme to be agreed with the planning authority and the registered provider; and finally, that the retail floorspace should be provided on completion of each plot containing retail.

128. Mr Kelway thought Mr Adams’ approach, linking occupation for each land use to completion of the development’s entire public realm was impractical, disproportionate and unreasonable. Mr Kelway’s preferred approach was that any phasing conditions should specify the parameters of each phase, including the buildings, public realm and open spaces, highway works and access to be completed within that phase; and that no more than 50% of each phase shall be occupied until the public realm and open space specified for that phase has been delivered.

129. We are conscious of national planning guidance that conditions should not unreasonably constrain development, and consider there would be practical difficulties with Mr Adams’ approach to the provision of the public open space. But we are content with his proposed conditions limiting occupation of the PBSA space before commencement of the residential and office phases, and regarding affordable housing and retail floor space. Disposal

130. For the reasons given above, we allow the Secretary of State’s appeal against the Certificate granted by the Council, primarily owing to the effect on the Roundhouse remains, and will substitute a certificate, a draft of which we invite the parties to submit, certifying the Secretary of State’s Scheme as appropriate alternative development and certifying the variant of the CPL’s Roundhouse Retained Scheme we have described in paragraph 122 above, together with the appropriate conditions for each scheme. Martin Rodger KC, Mr P D McCrea OBE FRICS FCIArb Deputy Chamber President 20 February 2026 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.