[2004] EWLands ACQ_94_2002 (6 August 2004)
	ACQ/94/2002

LANDS TRIBUNAL ACT 1949

COMPENSATION – compulsory purchase – preliminary issue – planning assumptions – s 17 certificate – residential development – form and content – retention of listed building – contribution to highway improvements

IN THE MATTER OF A NOTICE OF REFERENCE

BETWEEN
NOMAD DEVELOPMENTS LIMITED
Claimant
and
GATESHEAD BOROUGH COUNCIL
Acquiring
Authority

Re: Land between Bottle Bank and Half Moon Lane,
Gateshead

Before: The President

Sitting at IAA, King’s Court, Earl Grey Way, Royal Quays
North Shields NE29 6AR
on 10-13 and 17-20 February 2004
and at 48/49 Chancery Lane, London WC2A 1JR
on 25 March 2004

Stephen Sauvain QC instructed by Dickinson Dees of Newcastle for the claimant
David Elvin QC instructed by Solicitor to Gateshead Council for the acquiring authority

The following cases are referred to in this decision:

Purfleet Farms Ltd v Secretary of State for the Environment, Transport and the Regions [2002] RVR 203
Jelson v Blaby District Council [1977] 1 WLR 1020
Waters v Welsh Development Agency [2004] 1 WLR 1304
Grampian Regional Council v Secretary of State for Scotland [1983] 1 WLR 1340

The following further cases were referred to in argument:

Pentrehobyn Trustees v National Assembly for Wales [2003] RVR 140
Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 AC 307
Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands [1947] AC 565
Myers v Milton Keynes Development Corporation [1974] 1 WLR 696
Thomas’s Executors v Merthyr Tydfil [2003] RVR 246 

	Decision on a preliminary issue
Introduction
1.	The preliminary issue to be determined arises on a claim for compensation for the compulsory purchase of one of the plots of land included in the Borough Council of Gateshead (Land at Bottle Bank) Compulsory Purchase Order 1998, plot 9 (which I will refer to as “the subject land” or “the land”).  The vesting date was 29 May 2000.  The land was jointly owned by the claimant and a company called Collingwood Developments Ltd (“Collingwood”).  It was 6688.75 sq m (about 0.67 ha) in area and formed part of a wider development site of 1.93 ha (“the site” or “the wider site”) overlooking the River Tyne to the south of Swing Bridge.  The preliminary issue to be determined is what planning assumptions should be made for the purpose of assessing compensation.  The parties agreed certain statements of fact, and I heard evidence from witnesses on planning, listed buildings, ground conditions, highways and architecture.  I carried out an inspection of the immediate vicinity of the land and a more extensive view of parts of Gateshead and Newcastle.
The subject land and its surroundings
2.	The subject land occupies a prominent position on a sloping plateau above the River Tyne.  At the date of valuation (29 May 2000) it was bounded on the north by steeply sloping open space to which the public had access and on which some modern sculptures were sited.  This open area formed part of the wider site, which was bounded on the west by the railway viaduct connecting to the High Level Bridge and to the south by Half Moon Lane.  A few yards to the east was the roadway leading over the Tyne Bridge.  Within the wider site was Bottle Bank, a northwards extension of High Street Gateshead leading down to the Swing Bridge.
3.	The subject land was bounded by Bottle Bank to the east, a narrow lane called Bankwell Lane to the west and land to the south that at the valuation date had been cleared of buildings.  The land itself had also been cleared, with the exception of Green’s Tannery, a Grade II listed building fronting Bankwell Lane on the south-west part of the site.  The eastern frontage of this building, which I will refer to as “the tannery”, was onto Mirk Lane, another narrow lane running northwards into the land but not within the claimants' ownership.
4.	At the valuation date the wider site had also been cleared of buildings, with the exception of those along Half Moon Lane and along Bottle Bank.  Half Moon Lane contained Grade II listed buildings (numbers 10 to 32 (even)).  Only numbers 22-32 now remain, the others having been severely damaged by fire and subsequently demolished.  Bottle Bank contained mainly 19th century frontage buildings, and three of these (The Queen’s Head, 12-16 High Street (Bottle Bank), 18-24 Bottle Bank and 30-34 High Street (Bottle Bank)) were in the council’s local list of buildings of special architectural or historic interest.  All the Bottle Bank buildings were later demolished to make way for the development that has now been carried out, and the old line of Bottle Bank has been obscured.  The tannery also was demolished, listed building consent having been granted after the valuation date.
5.	The site formed part of the Bridges Conservation Area, designated in 1991, and extended in 1994.  The conservation area is centred on the south bank of the Tyne, and the three bridges, Robert Stevenson’s High Level Bridge of 1849, the Swing Bridge at low level of 1876 and the Tyne Bridge of 1928, constituted the main reasons for the designation.  The site now contains the Hilton Hotel, a massive building of 8 storeys constructed on the subject land, part of the open land to the north, and land to the west.  The hotel looks northwards across the river to the quayside area of Newcastle, and the development rising above it, including the castle.  Development on the subject land would have had similar fine views and would have occupied a prominent position in views from Newcastle and the bridges.  To the south of the Hilton Hotel the site has been developed for residential purposes.  
Background
6.	The site lies within the area covered by the East Gateshead Regeneration Strategy, an area of 200 ha to the north and east of Gateshead town centre.  In November 1996 the council approved a strategy for the regeneration of East Gateshead on the basis of a study commissioned jointly by the council and English Partnerships.  The strategy was developed further in 1997 and revised in 1999.  Successful bids to the government’s Single Regeneration Budget Challenge Fund were made in 1995 and 1999.  Outline planning permission had been granted in the 1987 for a hotel complex on the subject land, but this was never implemented.  In May 1998 Collingwood Properties Ltd made application for the development of the wider site with a 250-bed hotel and 50,000 sq ft for office and leisure use, and permission was in due course granted, after amendments to the submitted scheme had been made, in July 1999.  In November 1998 the council made the CPO under section 226(1)(a) of the Town and Country Planning Act 1990 for the purpose of securing the carrying out of development, redevelopment or improvement by constructing a hotel and associated facilities.  An inquiry into objections was held in October 1999, and the order was confirmed in February 2000.  
7.	In December 1999 Nomad and the owner of CPO plot 13, an area of 865 sq m adjoining the subject land on the west side of Bankwell Lane, jointly made application for a certificate of appropriate alternative development under section 17 of the Land Compensation Act 1961.  A certificate was issued in March 2000 specifying as the appropriate classes of development purposes within use classes C1, C3 and small scale A3 leisure uses.  It specified 41 conditions subject to which permission would have been granted.
8.	In December 1999 Collingwood made application for listed building consent to demolish the tannery.  In August 2000 English Heritage stated their reluctant acceptance of demolition, and the council’s proposal to grant listed building consent was submitted to the Government Office for the North East, who, in September 2000, stated that the Secretary of State did not require the application to be referred to him.  Listed building consent to demolish the tannery was eventually granted in August 2001.  In January 2002 Adamson Developments (Newcastle) Ltd applied for planning permission on the southern part of the site (shown for office and leisure uses in the Collingwood scheme) for the construction of 121 residential apartments and underground car parking and the rebuilding of the tannery.  Planning permission was granted in July 2002.
The issues
9.	The parties were agreed that in the absence of the compulsory acquisition planning permission could have been expected at the valuation date for the residential development of the subject land.  The evidence addressed three areas of disagreement:
(a)	The tannery, and in particular whether listed building consent to demolish it should be assumed;
(b)	The contextual, physical and design parameters of the residential development, including the number of units; and
(c)	The need for highway improvements and the requirements that would have been imposed on the grant of permission.
Both parties prepared evidence on these matters on the basis of a simple no-scheme assumption – assuming, that is to say, that there was not and had never been a proposal for the comprehensive development of the wider site.  During the hearing, however, the relevance of the section 17 certificate and the conditions specified in it were the subject of submissions, and the statutory provisions relating to assumptions as to planning permission were referred to.  I deal with these matters below.  
Development plan
10.	The statutory development plan at the valuation date was the Gateshead Unitary Development Plan: November 1998.  The proposals map shows the subject land as lying within the Central Riverside Area.  Relevant policies include the following:
“R4 Within the Central Riverside Area developments for residential, B1 uses (office/light industrial) and leisure will be permitted subject to detailed considerations and provided there is no significant adverse effect on the environment.  Residential development will not be permitted where it could be adversely affected by surrounding land uses.
E3 The design, density and scale of new development should be compatible with the established character and identity of its proposed locality.  All development will be expected to recognise established design principles with regard to such factors as scale, bulk, height, materials, density, views and vistas.  The relationship between buildings and the spaces around them must be handled in a sensitive manner.
E5 development in a Conservation Area must preserve or enhance the area’s character or appearance by:
(a)	respecting its historical context, particularly in relation to mass, silhouette, grain, proportion, rhythm, street alignment, plot layout, materials, design, and associated landscaping;
(b)	not generating levels of traffic, parking or noise which would be detrimental;
(c)	safeguarding significant views into, within, or out of the area…”
11.	In addition policy E6 provides that within conservation areas the demolition or partial demolition of buildings that are not listed will be permitted only where it can be demonstrated that the building does not make a positive contribution to the conservation area; T1 provides that an integrated approach to transport provision for all sections of the population will be pursued in an environmentally acceptable way to assist urban regeneration; T7 provides that safe, attractive and convenient routes and road crossing points for pedestrians, including people with impaired mobility, will be provided, especially in new developments; T9 says that new developments will be required to incorporate and maintain the existing public rights of way network; and T14 requires development proposals to provide off-street car and cycle parking to satisfy the council’s guidelines.
The statutory planning assumptions
12.	Sections 14 to 16 of the 1961 Act make specific provision as to the assumptions that are to be made for the purpose of assessing compensation under the Act.  Of potential relevance here are the assumptions to be derived from the development plan (section 16), the provisions relating to the effect of a section 17 certificate (sections 15(5) and 14(3A)), and the provisions of section 14(3) and (3A) relating to the prospect of permission not derived from any of the specific assumptions.  Section 16, as this Tribunal has noted (see Purfleet Farms Ltd v Secretary of State for the Environment, Transport and the Regions [2002] RVR 203 at 208) uses the language of old-style development plans and badly needs revision if is to be satisfactorily applied to present-day plans.  Section 16(3) appears to have potential application in the present case.  It provides for the assumption of planning permission where the land is within an area allocated primarily for a range of two or more uses.  Planning permission is to be assumed for development for any of those uses if such permission could reasonably have been expected to be granted.  Here it is at least arguable that policy R4 effects what should be treated as an allocation for the purpose of this provision.
13.	Section 15(5) provides for the assumption of planning permission in accordance with a section 17 certificate, and section 14(3A) provides that in determining whether planning permission could in any particular circumstances reasonably have been expected to be granted regard is to be had to any contrary opinion expressed in such a certificate.  I will return to the section 17 certificate and its effect.  
14.	Section 14(3) provides that nothing in the provisions relating to planning assumptions is to be construed as requiring it to be assumed that planning permission would necessarily be refused for any development which is not development for which permission is to be assumed under those provisions.  The subsection thus enables there to be included as part of the market value of the land any hope value arising from the prospect that, although planning permission has not been granted for a particular development and is not assumed to have been granted, permission for that development might have been granted in future.  In addition the rule in Pointe Gourde and section 9 of the 1961 Act have been construed as enabling a claimant to rely on a general assumption that planning permission would have been granted for any development for which permission would have been granted in the absence of the scheme: see Jelson v Blaby District Council [1977] 1 WLR 1020.  It is possible that the relationship between the Pointe Gourde rule and the planning assumptions may require reconsideration in the light of Waters v Welsh Development Agency [2004] 1 WLR 1304.  For the purposes of the present case, however, both parties have approached the issue that is to be determined on the basis that the claimant is entitled to rely on an assumption of planning permission for any development for which permission could reasonably have been expected to be granted in the absence of the scheme for the comprehensive development of the wider site.  They agree that permission would have been granted for residential development, and the only areas of disagreement relate to the conditions that would have been imposed.  Whether permission for residential development is to be assumed under section 16(3) does not, therefore, need to be determined.  The only question that arises is the effect of the section 17 certificate on the assumption that is to be made.
15.	The section 17 certificate was issued by Gateshead Council on 8 March 2000.  The site to which it related comprised the subject land (plot 9 in the CPO) and the adjoining land to the west (plot 13), which was in different ownership.  It specified as the appropriate classes of development:
“Development of land for purposes within use classes C1, C3 & small scale A3 leisure uses”.
The certificate stated that any permission would have been granted subject to some 41 conditions, which it set out.  In particular the following conditions are to be noted:
“Condition 1: The scale, layout and overall design of the development shall preserve and enhance the Bridges Conservation Area, and particularly the setting of the Bridges.
Reason 1: In order to ensure that the development is appropriate within the Conservation Area and adjacent to the Bridges.
Condition 2: The development shall be of a high standard of design appropriate to this important gateway location.
Reason 2: In order the ensure a quality development in this important location.
Condition 3: The scale, layout and overall design of the development shall ensure the preservation of the listed building within the site and shall enhance its setting.
Reason 3: In order to ensure the integrity of the listed building is preserved.
Condition 20: Before any development commences, details of improvements to Bottle Bank and its junction with Church Street and Bridge Street shall be submitted to the Local Planning Authority, such improvements to be implemented before the occupation of any part of the development.
Reason 20: In the interest of highway safety.”
Among the other conditions there were requirements relating to refuse storage, car parking and cycle parking facilities.  Eight conditions related to the tannery building.
16.	The certificate was headed: “Compensation Act 1961 (section 17), Land Compensation Development Order 1974, Local Government Act 1972.”  There was no reference to the Planning and Compensation Act 1991, which made significant amendments to section 17.  The Council was evidently using a long outdated form for the certificate.  One consequence of this was that it stated that the classes of development specified were those for which planning permission “might reasonably have been expected to be granted”.  Under section 17(4) as amended by the 1991 Act, however, it was required to certify the classes of development for which planning “would have been granted”.  This particular error appears to have no significant consequences for the purposes of the present case.  However, the certificate failed to state, as it was required by the amended provision to state, that development “would not have been granted for any other development.”  That is a potentially significant omission because of section 14(3A), which requires that in determining whether planning permission for any development could reasonably have been expected to be granted regard to be to any contrary opinion expressed in a certificate.  The parties were agreed that the certificate was not rendered invalid by this omission.  They said, and I agree, that this negative element should be read into the positive certificate and that section 14(3A) should be applied accordingly.
17.	Mr Sauvain said that, so far as reliance was placed on the certificate by the claimant, it was accepted that the certificate had to be taken with its conditions.  Section 14(3A) only required that regard should be had to any contrary opinion expressed in a section 17 certificate.  That did not mean that the Tribunal was bound by it, and, indeed, section 14(3) expressly kept open the possibility of planning permission being granted for development that a section 17 certificate said would not be granted.  Mr Sauvain drew attention to condition 28 in the certificate, which required the submission and approval of detailed drawings of “the office blocks development”.  That was obviously an error, he said, as the certificate did not provide for office development.  The condition had simply been imported from the Collingwood permission.  It showed, he said, that limited weight should be attached to the conditions in the section 17 certificate when assessing what conditions would have been attached to a planning permission granted in the no-scheme world.  
18.	The conditions in the certificate would have required a junction improvement and the carrying out of certain works to the tannery building.  Condition 20 was a Grampian condition requiring improvements to be carried out to Bottle Bank and its junction with Church Street and Bridge Street.  That condition also was derived from the Collingwood permission, Mr Sauvain said, and it envisaged improvements of a scale that would be required to accommodate the traffic from that much larger development.  The council’s witness, Mr Szandrowski, had acknowledged that, for the more limited development of the claimant’s site for housing purposes, the council would only have sought a contribution to the costs of these highway improvements.  As for the conditions relating to the tannery, it was unclear whether, or to what extent, they would have required the tannery building to be included in the development.  There was no condition preventing occupation of the other parts of the development before the works to the listed building were complete. 
19.	Mr Elvin said that, although the section 17 certificate comprised more of the Bottle Bank area than the subject land, it was nevertheless of importance since it confirmed the range of acceptable uses for the land and provided an appropriate context for design and development and the retention of the tannery.  Significant (if not decisive) weight ought to attach to the certificate since it was issued so close to vesting and the claimant had not appealed against its contents.  The inclusion of plot 13 had had no material effect on the contents of the certificate.
20.	The issues regarding the tannery were, said Mr Elvin, the only issues of principle that affected the certificate.  The claimant’s case was that, despite the terms of the certificate, in the no scheme world listed building consent would have been granted for the demolition of the tannery building and planning permission would have been granted without conditions requiring its retention.  There was, however, no material difference in the relevant facts as at the date of the certificate and the valuation date.  English Heritage was maintaining its position that the building should be retained, and so was the council.  No appeal had been made against the grant of the certificate.  Moreover in letters to three housebuilders dated 23 August 1999 Nomad made it clear that they had costed a residential scheme for the land that included retention of the tannery.  That was consistent with their decision not to appeal against the section 17 certificate, and showed that at the date of resting Nomad were content with the retention of the tannery.
21.	Although the certificate relates to an area of land that is wider than the subject land sections 15(5) and 14(3A) in my judgment apply to it for the purposes of the present claim.  The requirement under section 14(3A) to have regard to any contrary opinion expressed in a section 17 certificate clearly implies that regard is to be had to the conditions referred to in such a certificate.  Under section 17(5), where the authority are of the opinion that permission would only have been granted subject to conditions, the certificate must specify the conditions; and the assumption under section 15(5) is that planning permission would only have been granted subject to those conditions.  Where, therefore, conditions are specified, it is implicit that, in the opinion of the authority, permission would not have been granted other than subject to the specified conditions, and this is a contrary opinion for the purposes of section 14(3A).
22.	Mr Elvin drew my attention to the words of Lord Bridge of Harwich in Grampian Regional Council v Secretary of State for Scotland [1983] 1 WLR 1340 at 1344 that “…it is difficult to envisage a situation in practice in which the Tribunal, when assessing compensation, could be persuaded to act on a contrary opinion to that certified by the planning authority or the Secretary of State on appeal.”  It is clear, however, that condition 28, referring to office development, is to be disregarded since it was evidently included in error by the draftsman, who prepared the conditions evidently using the Collingwood permission as a guide.  I did not understand Mr Elvin to dissent from that.  The same goes, it seems to me, for condition 20, the Grampian condition relating to improvements to the junction of Bottle Bank with Church Street and Bridge Street.  That was evidently also derived from the Collingwood permission, and it would have enabled the council to require the improvements to be funded wholly by the developer.  However, the council’s witness accepted that, for the more limited development of the claimant’s site for housing purposes, the council would only have sought a contribution to the costs of these highway improvements.
23.	The conditions relating to the tannery, on the other hand, were not included in error.  If by the date of the certificate there had been acceptance on the part of the council and English Heritage that listed building consent for the demolition of the tannery should be granted, this would have been likely to show that these conditions would not have been included.  But there had not in fact been any such acceptance.  There was no suggestion of error.  The retention of the tannery had been envisaged by the claimant in the scheme put to developers a few months previously.  Moreover the claimant did not appeal under section 18, as it could have done, against the contents of the certificate.  In these circumstances I would not have thought it right, whatever my own evaluation of the evidence relating to the listed building, to conclude that permission would have been granted in terms that did not require the retention of the tannery.  In any event, as I shall say, I am not persuaded that the evidence does show that in the absence of the comprehensive development scheme, listed building consent would have been granted for demolition.
The tannery
24.	Eight of the conditions in the section 17 certificate related to the tannery in addition to condition 3, which I have quoted above.  They assumed its retention and alteration and required the submission of survey material and the submission and approval of details of the work proposed to be carried out to the building.  In March 1999 Collingwood had submitted an application for listed building consent for the refurbishment of the building to convert it to office use, and consent was granted on 29 July 1999 subject to conditions.  In December 1999, as I have noted, Collingwood submitted a further application, this time for consent to demolish the tannery, and on 21 August 2001 consent was given for its demolition.  The case for the claimants was that in the absence of the proposal to acquire the land and in the absence of the scheme there would have been a reasonable chance of listed building consent being obtained for the demolition of the tannery and thus, impliedly, the removal of the conditions in the planning permission to be assumed under the section 17 certificate.  The acquiring authority said that listed building consent would not have been given.
25.	Roger Martin Wools, BArch, PhD, a registered architect, member of the Royal Institute of British Architects, principal of Roger Wools & Associates, Heritage Consultants, give evidence about the tannery.  Dr Wools had not seen the building before it was demolished, but he had viewed the site where it had stood and the conservation area.
26.	Dr Wools said that the listing description of the building stated that it was of 18th century construction and that it was listed partly as a rare survival of an 18th century industrial building.  He noted that the entry did not suggest that it had any significant association with any other nearby listed building.  Having reviewed a full range of historical plans, from 1788 onwards, however, Dr Wools concluded that it was highly unlikely that any building existed on the site before the 1830s; that the first record of a building was in 1844, and it was on the eastern and northern parts of the site; that between 1858 and 1898 the western part of the site was developed with a separate building; and that between 1919 and 1939 those buildings were amalgamated and extended to the north with a roofing-over of the full width between Bankwell Lane and Mirk Lane.  The building as seen by the public was a long shed-like structure built in part of 19th century stonework with large areas of red brickwork.  The roof was of Welsh slate.  Internally the structure was of the 1920s period with an exposed steel frame.  Dr Wools said that he considered that the building fell outside the limits of acceptability for listing; but if thought worthy of listing it could only be at the lowest end of Grade II.
27.	The report of the Red Box Design Group, Dr Wools said, confirmed his views and added definitive evidence to them.  It showed that in 1876 a slaughterhouse on the site was rebuilt to double the size in two separate buildings, which were amalgamated and rebuilt in the 1920s as a paper mill.  Extensive fires in 1919, 1952 and 1980 caused damage that necessitated further rebuilding.  The RBDG report said that the building was in very poor structural condition.  It questioned the validity of the listing and supported the case for demolition.  Following this, the tenor of the debate over the future of the building began to change.  A report by the council’s conservation officer in January/February 2000 accepted the revised dating of after 1876, and Dr Wools said that he deduced from that report that the building was being seen more as a building within the conservation area than as a rare listed building, not that its external appearance was more important than its internal features.  In view of the criteria in PPG15 it was to be inferred that the council did not consider that the building had the importance ascribed to it in the listing, nor would there have been any compelling reason for its demolition if repair had been considered feasible by the council.  The council had failed to make a convincing case for demolition based on community benefits.  In Dr Wools’s view, it would have been reasonable in May 2000 to have expected consent for demolition in the no scheme world.
28.	The council’s witness on the tannery was Geoff Underwood BA(Hons), MRTPI, IHBC, who, since March 2002 had been Senior Planner - Conservation in the council’s Planning and Environmental Strategy Service.  He said that he had no detailed knowledge of the subject land as it was on the valuation date.  He said that under policy E11 of the UDP and the advice in PPG15 consent for demolition of a listed building ought not to be granted without convincing evidence that all efforts had been made to find a viable new use for the building and that those efforts had failed.
29.	There was disagreement between the parties about the stance of English Heritage in relation to the demolition of the tannery both in the real world and as it could have been expected to be in the absence of the proposal to acquire or the scheme.  Following the submission of Collingwood’s application for consent to demolish, English Heritage’s chief structural and civil engineer inspected the building on 1 February 2000.  On 2 March 2000, taking account of his advice, English Heritage wrote to the council strongly opposing demolition.  A further letter from English Heritage of 11 May 2000 recorded their consideration of the Red Box report and the continuation of their views as to the importance of the tannery.  Red Box sent revised drawings to English Heritage on 10 July 2000, and on 4 August 2000 Mr John Edwards of English Heritage wrote to state English Heritage’s reluctant acceptance of the case for demolition.
30.	Dr Wools said that in October 2002 he telephoned Mr Edwards about the approach that English Heritage had taken to the demolition, and he said that Mr Edwards told him that they had withdrawn their objection to demolition because of the physical state of the building and the cost of restoration as represented by the developer.  However, in a letter dated 19 May 2003 to the council Mr Edwards said that the reason for English Heritage’s acceptance of demolition was that they were persuaded in the light of the specific scheme proposed by Red Box that there would be a wider public benefit from permitting the Tannery to be replaced by a new building that integrated better into the wider development.  The letter went on to say that, in the no scheme world, since there would always have been a presumption in favour of repair and retention, the onus would have been on the applicant clearly to demonstrate that there was a compelling reason why the building should not be repaired and retained, and it could not be guaranteed that a replacement scheme would have been acceptable.  
31.	Mr Underwood relied on this letter as showing that English Heritage would have opposed demolition of the Tannery.  Mr Sauvain said that the letter was inexplicit about English Heritage’s reasons for accepting the developer’s case for demolition and, since it was clearly at odds with what Dr Wools had been told by Mr Edwards, it suggested that English Heritage did not require much in the way of community benefit to bring the scales down in favour of demolition.
32.	Mr Edwards was not called to give evidence, and it does not seem to me possible in view of this to conclude with any assurance what was the thinking of English Heritage that led to their acceptance of demolition.  It is clear, however, that they only moved from their position of objection after the valuation date, and there is no reason to believe that the preparation of a development scheme on the subject land in the absence of compulsory acquisition would have progressed any faster by that date than the actual development scheme did.  At that date, therefore, a purchaser of the land would have assumed that English Heritage would have objected to the demolition of the tannery, and that a positive case would have needed to be made out in terms of the criteria in PPG15 before listed building consent would have been granted.  He would have had no reason to believe that a case for demolition based on para 3.5(iv), substantial benefits to the community, would have succeeded.  He would have assumed that a case would have to be made on the basis of the other three criteria.
33.	It is clear from the review of the historical plans to which the evidence of Dr Wools and Mr Underwood was directed that the listing description of the building was inaccurate.  I accept Dr Wools’s evidence on the history of the structure as it existed before demolition.  While a purchaser might, therefore, have been encouraged to believe that the importance of the building was not as great as the listing suggested, I am not satisfied that the listing would not have been maintained in the light of the evidence of the building’s history.  While it is clearly right, as Dr Wools said, that the listing does not refer to the setting of the building, it is significant, in my view, that the claimants’ plans envisage the replacement of the building and the retention of the lines of Mirk Lane and Bankwell Lane.  This is a clear indication, it seems to me, of the contribution that the building, together with the historic lines of the lanes, made to the local scene.  In view of this contribution, the case for retention of parts at least of the external fabric of the building would have been strong.  My conclusion is that any planning permission granted would have contained conditions, similar to those in the Collingwood permission, that would ensure the retention and treatment of substantial parts of the building.  That conclusion does not exclude the possibility that a purchaser would have had some hope that listed building consent for demolition would be given.
Form and content of development
34.	While there was agreement between the parties as to the appropriateness of residential development on the subject land, the form and content of such development was a principal area of disagreement between them.  The claimants produced drawings showing schemes which they contended would have received approval.  The original drawings put forward showed a residential development of 137 flats contained in a principal building along the north side of the land facing the river and in a secondary building replacing the tannery building on the south-west of the land.  Access was from Bottle Bank to the south of the principal building and car-parking was shown on the remaining open areas of the site to the south of the access road.  The access road was capable of extension to serve plot 13 to the west.  Revised schemes were subsequently put forward, and ultimately the claimants relied on two schemes, Option 1 revision J with 117 units and Option 2 revision B with 123 units.  Option 2 differed from Option 1 in having additional residential development over car parking to the south of the access road.  
35.	The council considered that the land could properly have accommodated about 45 flats, and a scheme showing these was put in evidence and spoken to their architectural witness.  It followed the claimants’ schemes in having a principal residential block along the northern part of the site above the scarp and a secondary residential block to the south-west, although this consisted of a conversion of the retained tannery building.  The fundamental difference between the parties was whether, as the claimant contended, a building of 6 to 8 storeys along the northern part of the land was appropriate, or, as the council contended, such building ought to be no higher than 2 to 3 storeys.  There were detailed disagreements as to the amount of car parking that was appropriate and particular features of the claimant’s scheme.  The question of the retention or replacement of the tannery building is considered elsewhere.
36.	Evidence for the claimants was given by Nigel Lawrence Perry BSc, MCD, MRTPI, a director of the Newcastle Offices of Nathaniel Lichfield & Partners Ltd, planning development urban design and economic consultants.  Mr Perry said that the relevant planning history, with permission having been granted in 1987 for a hotel complex and for the Collingwood scheme in 1998, with conservation area consent having been granted for the demolition of a number of buildings on the wider site, demonstrated that the council had long supported the redevelopment of the site with development that reflected the site’s prominent location and would make a significant contribution to the urban form of the Tyne gorge.  The key approval was that of the Hilton Hotel.  Mr Perry disagreed with the council’s position that the site was a gap site for the purpose of PPG15  He considered, on the contrary, that it represented an opportunity for a significant development.
37.	Planning policy at national, regional and local levels established the context within which any proposals would have been considered.  Under PPG3 and the Draft RPG the Government was committed to making more efficient use of land by maximising the re-use of previously developed land.  Under UDP policy H15 proposals for new housing development were to be considered in relation to urban regeneration, and in the Central Riverside Area redevelopment of industrial sites for residential and other uses would normally be permitted.  Under PPGs 1, 3, and 13 local authorities ought to promote land for housing in locations well served by public transport and with good access to employment and a range of facilities including leisure and recreation, schools, shopping and health facilities.  It was a key objective to promote such accessibility, and to reduce car dependence by facilitating more walking and cycling and improving public transport linkages.  Under PPG3 there was a need to provide a choice and mix of sites for residential development in terms of size, type and location.  Regeneration through the revitalisation of the local economy and the renewal and enhancement of the fabric of the urban area was an objective of the UDP and the Draft RPG, and both of these sought the improvement of the environment.  It was a key aim of the RPG strategy to reduce the loss of population to other region by making the north-east an attractive place to live and work.  Conservation and design policies in PPG1 and 15 and the UDP required the design, density and scale of new development to be compatible with the established character and identity of the locality.
38.	Mr Perry drew attention to the East Gateshead Regeneration Strategy and to the 1995 EDAW study commissioned by the council and English Partnerships, which identified the Bottle Bank site as suitable for hotel and leisure development.  The development brief prepared for this site in 1989 showed primary access from Bottle Bank with a secondary access via Bankwell Lane or Mirk Lane, a mixed use scheme, and one car parking space per dwelling.
39.	Mr Perry said that after many years of dereliction, decay and demolition along the Tyne gorge the late 20th and early 21st centuries had brought new life back to the riverside.  The Newcastle Law Courts and the Blue Anchor residential development served a catalyst for the regeneration of the quayside north of the river in the early 1990s.  There then followed residential developments at Mariner’s Wharf and elsewhere.  At the valuation date the impetus for regeneration had spread south of the river.  In May 2000 construction began on the refurbishment of the Baltic Flour Mill to form an art gallery, and the two banks of the river were to be linked by the development of the Millennium Bridge.  Consent had been granted for the development of the Sage Regional Music Centre to the east of the site.  In 1996 planning permission had been granted for 40 flats in a 5-storey block at the former Mandale site, and in 2000 application was made for a 237 unit residential development up to 11 storeys in height at Baltic Quays.  Thus at the valuation date the character of the river frontage had been dramatically changed and gave a new confidence and impetus to further development.
40.	In the light of the planning policies, Mr Perry said that he considered that an applicant could reasonably have expected the council to have supported a scheme which moved away from low level development to provide a high quality use of such a prominent site.  He did not consider that a scheme which echoed the historic form of development would be appropriate, give the site’s landmark location within the Tyne gorge.  He thought that an 8-storey development could properly be accommodated without having a detrimental impact on the remaining listed buildings or the conservation area.
41.	On car parking, Mr Perry noted that Draft PPG13 stated that car parking requirements should be kept to a minimum and that local planning authorities ought not to require developers to provide more spaces than they themselves wished to provide unless there were significant road safety or traffic management implications.  Since the site was about 400m from Gateshead town centre and 1km from Newcastle city centre, was well-served by the local bus network and 500m from the Tyne and Wear Metro and was well served by a network of footpaths and cycle paths, a car parking ratio of one space per unit would properly have reflected Government guidance at the valuation date. 
42.	Mr Perry said that the development shown on the claimant’s schemes would accord with the policies he had identified.  It would provide an appropriate landmark in an important location.  It would be of a scale and massing that preserved the setting of the High Level and Tyne Bridges.  The benchmark was set by the Hilton Hotel permission, although the claimant’s proposal would not represent such an imposing form of development.  It would relate appropriately to the Bottle Bank buildings and the principal building would be sufficiently separated from the land to the rear, so that it would not prejudice its redevelopment.  The density, at 220 dwellings per hectare in the original proposal (and less in the revised options) would accord with densities elsewhere in the Tyne corridor, for example the Mandale and Baltic Quays developments, which were both over 200 dwellings per hectare.  The mix of one and two bedroom units would be appropriate.
43.	Viewed from the Newcastle quayside, Mr Perry said, the development would have made a positive contribution to the Tyne gorge.  Important vistas of the bridge would have been maintained.  To the extent that car parking within the development would have been visible from outside, it would have been softened by landscaping.  The development would have brought regeneration by bringing derelict land back into use at the most visually prominent aspect of the Bottle Bank area.  This would have encourage development of the rest of the area as confidence in the market increased, just as the Hilton Hotel led to the independent residential development by Adamson Developments.
44.	The claimants' highways witness, Timothy John Speed BSc(Hons), MICE, MIHT, a Technical Director with consulting engineers WSP Development Ltd, gave evidence on car parking provision.  While the council’s standards required the provision of one space per dwelling for residents and one space per 3 dwellings for visitors, in his view an acceptable provision would have been one space per dwelling.  He drew attention to the draft revised version of PPG13, which was in existence at the valuation date and which, at paragraph 33 stated that, in implementing parking policies, local authorities should ensure levels of parking that will promote sustainable transport choices and should not require developers to provide more spaces than they themselves wish other than in exceptional circumstances.  Moreover the council’s standards stated that the specified provision might be reduced or waived “in locations with especially good public transport access”.  He also noted that in a development brief published in 1989 for the Bottle Bank “Gateway” site the council had stated that they viewed this “as a central area site which therefore requires a lower level of car parking provision than would otherwise be the case.” 
45.	The council’s planning witness, Richard Simons BA, MRTPI, said that he had worked for the council since 1976 and was currently a Senior Planner in one of the two development control team.  He had been involved with planning applications in the Bottle Bank area since 1999.  He said that for many years the appearance of the wider site had been dominated by vacant and derelict land and buildings, the condition of which had deteriorated over a long period.  The area had been the subject of vandalism and arson.  Since the early 1980s the council had become increasingly concerned about the appearance of the area and the deteriorating listed buildings and had been seeking to promote the comprehensive redevelopment of the site.  Under the Bridges Industrial Improvement Area, declared in 1982, the council sought to stimulate development of the site by bringing together the landowners, but without success.  Also in 1982 Northern Arts in conjunction with the council promoted a sculpture which was sited on the council’s land to the north of the subject land and formed a gateway feature to a sculpture peak on the Tyne gorge bankside.  In 1987 outline planning permission was granted in respect of an area largely based on the subject land for the erection of a hotel complex.  The permission expired without being implemented.
46.	In 1989 the council prepared a brief for the wider site and invited proposals for its comprehensive redevelopment.  A number of schemes were put forward but the initiative foundered due to land ownership complications.  In 1996 consultants commissioned by the council and English Partnerships produced a feasibility study of the East Gateshead area and a strategy for the regeneration was approved by the council in November 1996.  A grant of £18.6m was awarded under the Government’s Single Regeneration Budget for the regeneration of East Gateshead.  In May 1998 Collingwood Developments Ltd submitted an outline planning permission for a comprehensive redevelopment scheme on the wider site consisting of a 250-bed hotel and 4,600 sq m net of offices/leisure uses.  This covered the whole bankside area between Half Moon Lane and Bottle Bank, including the council’s land containing the sculpture.  In July 1998 the council made the CPO for the acquisition of all the land comprising the wider site.  Collingwood’s outline application was converted into a full application in November 1998, and on 28 April 1999 the council resolved to grant permission subject to condition and the completion of legal agreements.  Permission was formally issued on 15 July 1999.  In January 2002 an application was submitted by Adamson Developments (Newcastle) Ltd for residential development of the whole of the area covered by the office/leisure parts of the Collingwood permission and this was approved subject to a legal agreement.
47.	In October 1998, as part of its development proposals, Collingwood submitted an application for listed building consent to demolish the tannery buildings, but this was withdrawn in February 1999.  In March 1999 Collingwood made a listed building consent application for the conversion of the tannery to office use, and this was granted in July 1999.  However, in December 1999 a further application was submitted by Collingwood for the demolition of the building because of their concerns about its condition and its value as a building of architectural and historic interest.  The consideration of the application let to protracted discussions with English Heritage, who considered the building to be repairable.  It was, said Mr Simmons, only because of the advantages inherent in the comprehensive scheme for the wider site that English Heritage eventually accepted that on balance demolition was appropriate.  The amended scheme put forward by Red Box Design Group had real benefits in terms of pedestrian circulation and general accessibility.  English Heritage required that the building should be carefully reconstructed with stonework to match the existing. Listed building consent was finally issued in August 2001.
48.	Mr Simons said that the council’s reasons for funding the Collingwood scheme acceptable were explained to the CPO inquiry in evidence given by Mr Palmer, a senior planner with the council.  Mr Palmer said that the council had taken the view that the design principles that had informed the design of the hotel building responded in an appropriate manner to the established townscapes of the Tyne gorge.  The scale and massing of the development was designed in a way that ensured that the height of building generally corresponded to the surviving Victorian buildings in the Half Moon Lane area, rising towards the north-east corner of the development.  Mr Palmer had also stated the case for the removal of the historic, but not statutorily listed, properties on the Bottle Bank frontage and the realignment of Bottle Bank itself.  The reasons were that the operators of the Hilton Hotel required a clear sight line of the hotel at ground level from the Tyne Bridge approach; that the set-back of the Bottle Bank frontage would permit an attractive layout with safe pedestrian movement; and that an appropriately designed building could be provided on the corner of the Half Moon Lane.   Number 10 to 30 Half Moon Lane would be restored. In the event, however, numbers 10 to 20 were substantially destroyed by fire, and listed building consent for their demolition was granted on 18 July 2000.
49.	Mr Simons said that any proposal for the subject land in the no scheme world would have had to have regard to the strongly based local planning policies for regeneration and conservation.  In addition the design of any development would have had to take account of national planning guidance.  In particular PPG15 specifically addressed the issues of the development of “gap sites”.  The subject land, in fundamental contract to the wider land, was a gap site and thus, under paragraph 4.17, new buildings on it would have had to be designed so as to relate to its setting and context.  It would have looked to the adjacent built form to determine its setting and context.  That setting, as Mr Underwood said in his evidence, was formed mainly of three storey buildings of traditional construction.  Repairing and complementing the urban fabric would have been considered the most suitable approach, with lower rise development that did not exceed the heights of the existing historic buildings in the area.  The alternative approach, adopted in the Collingwood scheme, was for substantial clearance and a larger scale built form, but this was only appropriate if the wider site was being dealt with comprehensively.  An example of what would have been appropriate, Mr Simmons said, was provided by the scheme produced in 1966 by a firm of private architects sponsored by the Secretary of State for the Environment’s Urban Design Campaign.  The scheme was one of the 21 best practice examples selected by the judging panel for inclusion in the Urban Design Exhibition.  It was based on a range of principle following consultation with interested parties and the local community: a mix of uses to generate activity day and night to help provide the stimulus for long term regeneration; preservation and enhancement of the historic buildings; restoration of the integrity of the site in relation to its surroundings; the creation of buildings and spaces in keeping with the historic scale and grain of the area; and the provision of greater pedestrian accessibility within a safe and pleasant environment.  The scheme proposed the refurbishment of existing buildings and new buildings generally of two and three storeys.  The residential scheme produced by Mr Walker complied with these principles, but the claimants’ scheme did not.  There were no specific density limitation on residential development, and the parking standards would have required provision of one space per dwelling for residents and one space per three dwellings for visitors.
50.	Mr Simons said that the claimants’ proposal would not have complied with policies E1, E2, E3, E5, E11, E13, E18, R1 and R3 of the UDP or with guidance in PPG1, PPG3 and PPG15 and would have been refused.  It had a high wall of flats up to 8 storeys in height blocking views to the riverside and a substantial area of ground surface car parking and it proposed the demolition of the tannery building.
51.	Evidence on behalf of the council on the form and content of any permitted development was also given by Mr Underwood.  He said that the purpose of his evidence was to provide the historic built environment conservation framework that he considered would have directed the development of an infill scheme on the subject land had its development not taken place as part of a wider comprehensive redevelopment.
52.	Mr Underwood considered the land in the context of the Bridges Conservation Area.  He said that aerial photograph showed the land lying within a distinct block, with a coherent frontage of historic properties along the southern part of Bottle Bank and Half Moon Lane.  The historic linear plot pattern, at right angles to Bottle Bank, were also discernible.  To the west was a narrow area of land dominated by the High Level Bridge while to the east the massive masonry of the Tyne Bridge also created a defining edge.  The overall impression he gained from looking at the photographs was of an area with substantial dereliction and clearance but one which nonetheless retained significant built fabric of architectural and historic merit, giving a strong sense of character to the area.
53.	Mr Underwood referred to what he called the conservation policy framework, consisting of the 1990 Act, PPG15, policies E5 and E11 in the UDP, and the character statement for the conservation area.  He then set out what he considered to be the principles that should guide the development of the subject land.  He regarded such development as infill development, and the principles he advanced were formulated accordingly.  New buildings within the land should, he said, have a mass and height that was subservient to that of the buildings on Bottle Bank, which were 2-3 storeys.  Development should run back from Bottle Bank in a linear pattern, and it should step up the hill rather than creating a single, prominent line along the northern boundary.  Unit and plot sizes should be relatively fine grain.  None of the claimants’ proposals represented a satisfactory form of development in the light of the criteria he had identified.  Asked how the developed scheme, with the destruction of locally listed buildings and the removal of Bottle Bank, Mirk Lane and Bankwell Lane preserved or enhanced the character of the conservation area, Mr Underwood said that in relation to that scheme the council was dealing with a major regeneration proposal.  It was necessary to balance the regeneration benefits against preserving and enhancing the character of the conservation area.
54.	Further evidence on behalf of the council was given by Peter Walker BSc, DipArch, RIBA, a partner in The DEWJOC Partnership of Newcastle.  He produced a scheme to show the sort of development that would comply with the wishes of the council’s officers.  It recognised the pattern of the medieval burgage plots and retained the tannery building.  The buildings were generally three storeys with a ground storey garage of less than full height.  One block of 8 flats would be located to the rear gable of the existing building on Bottle Bank and there would be another block of 27 flats at the north of the land enclosing the land and completing a development enclosure.  The tannery building could be converted to provide 8 flats.  Forty-five residents car parking spaces would be provided and 15 visitors spaces.
55.	On the number of car parking spaces that it would be necessary to provide, the council’s highways witness, Andrzej Edward Szandrowski BEng(Hons), Transport Planner (Strategic Projects) in the council’s Transport Strategy Service, drew attention to the council’s car parking standards for residential development.  They required the provision of one space per dwelling for residents plus one space per 3 dwellings for visitors.  In his view the council would have required provision in accordance with these guidelines.
56.	There was, as I have noted, a fundamental difference between the parties as to the proper approach to the design of a residential development on the subject land.  The claimants contended that a substantial landmark building up to 8 storeys in height at the north of the land was appropriate; the council argued that the development of this 0.67 acre site should be regarded as gap-filling and should be limited to 2 to 3 storeys.  Both parties relied on the scheme development – the claimants saying that it showed the scale of development that was acceptable on the wider site and demonstrated by contrast that a different approach was needed for the development of the subject land by itself.  My conclusion is that the claimants are right and that a substantial residential building along the north of the site would have been permitted.
57.	The council placed reliance on the 1996 Urban Design Campaign scheme as an exemplification of what development of the subject land would have been permitted.  That, however, was a scheme for the wider site, and the council, in permitting the Collingwood and Adamson developments, concluded that the principles underlying that scheme should either be jettisoned or should be regarded as incapable of fulfilment.  Instead of a mix of uses across the site as a whole, the development consisted of two principal elements – the massive Hilton Hotel and a large block of residential development – and smaller scale development along Half Moon Lane.  Of the statutorily listed buildings, the demolition of tannery was permitted and also, following the fire, 10-20 Half Moon Lane.  Only 22-30 Half Moon Lane survived.  All the old buildings along Bottle Bank were demolished, and the historic line of Bottle Bank was destroyed.  The historic grain and scale of the area survived only along Half Moon Lane and in the immediate vicinity of the new replacement for the tannery building.  Pedestrian accessibility was essentially that required for the purpose of the new residential development.  The development of the site effectively removed the open space to the north of the subject land, which had contained the sculpture and across which there was a pedestrian route.  The hotel itself blocked out views from the south across the river.  Bankwell Lane no longer gave access to the riverside.
58.	The justification for permitting a development so much at odds with the principles of the 1996 Urban Design Campaign scheme was regeneration.  The planning permissions and listed building consents ran counter to most of the environment policies referred to by Mr Simons, but the council’s judgment was that the regenerative effects of the development would outweigh this.  On that approach any proposal for development of the wider site or parts of it would have been a straight choice between a comprehensive scheme like the Collingwood scheme, massive in form and destructive of much of the historic fabric of the site, and a small scale development designed solely to preserve and enhance that fabric.  
59.	I do not think that the subject land, two-thirds of a hectare in extent, is properly to be regarded as a gap site for the purposes of PPG15, nor do I think it would have been so regarded if application for the claimants’ scheme had been made.  In the light of the evidence and my site inspection I accept the claimants’ contention that a substantial residential building on the north of the site would have been permitted.  Such a building would have been regarded as doing justice to the importance and prominence of the site as viewed from the Newcastle side of the Tyne and as relating appropriately to the High Level and Tyne bridges.  The council would in my view have been concerned to realise the maximum development potential of the subject land to ensure a development of sufficient quality with the greatest regenerative effects.
60.	Mr Simons’s views on the conflict of the claimant’s proposals with the provisions of the development plan were expressed in relation to schemes that provided for the demolition of the tannery, but the conflicts he referred to did not arise solely in relation to that element of the proposal.  The conclusion that I have come to in the light of the evidence is that a scheme on the lines of those proposed by the claimant but providing for the retention of the tannery would not have been in conflict with the development plan.  It would, I think, substantially comply with policies E1 and E2, as a development improving the environment and retaining Bottle Bank and its surviving buildings and the line of Bankwell Lane and its connection to the riverside.  It would not have been practical nor, I judge, of sufficient importance, to have retained the pattern of burgage plots in a scheme of redevelopment.  I do not think that movement through the site would have been significantly inferior to that in the development that is actually being carried out, and the retention of Bottle Bank and Bankwell Lane as routes available to pedestrians would have been a major benefit in conservation terms.  
61.	In terms of design, density and scale, a residential building rising to 8 storeys would have been compatible with the locality, in terms of policy E3, since a building of such substance would be appropriate in relation both to its prominent and important position above the Tyne and to the structures of the Tyne bridges.  The particular design problem is how to step the building down to the old buildings fronting Bottle Bank.  I do not think that the claimant’s design is wholly satisfactory in this respect, but it is in my view an acceptable solution given the need on the one hand to have a substantial new building along the northern part of the land and on the other to retain the old buildings.  In my view also those schemes would substantially preserve and enhance the character of the conservation area in terms of policy E5.  With the tannery retained, there would be substantial compliance with policy E11.  There would be no conflict with policy E13 nor, I believe, with E18.  The improvement to the built environment of this part of the Central Riverside Area would have been consistent with policy R3, and I see no conflict with policy R1.
62.	On the issue of car parking provision I consider that a developer at the valuation date would not have been required to provide more than one space per dwelling.  While it does not seem to me that this could properly be described as a location with “exceptionally good” public transport access in terms of the council’s design guide, it is clearly, as the 1989 design brief recognised, a central area site requiring a lower level of parking than would otherwise be needed, and the tenor of guidance in the draft PPG13 was to seek more limited parking provision.  There was also an issue on the size of the car parking spaces to be provided, and on this I can see no reason to doubt that the standard set by the UDP, 2.5m x 5m, would have been applied, as the council contended.  Similarly I accept the council’s contention that the access road, which would have been needed to provide access to plot 13, would have been required to be made up to adoptable standards.  The council raised a further issue on the access road.  They said that they would not have adopted it if the alignment was across plot 10, a narrow strip of land, the northernmost end of Mirk Lane, that lay within the general confines of the subject land.  The land was in unknown ownership, and the claimant and its co-owner would not have been able to claim 12 years adverse possession until February 2003.  However, Mr Szandrowski said that the road, although it would have to be constructed to adoptable standards, would not necessarily have had to be adopted by the council.  This is a matter, clearly, that is relevant only to valuation, if indeed it would have any impact on value at all.
63.	I should record that evidence for the claimant on ground engineering matters was given by John Gillespie BSc, MICE, a chartered engineer and an Associate of WSP Buildings Ltd.  It was not suggested by the council that ground conditions presented insuperable problems to the type of development proposed in the claimants' schemes.  The matters referred to by Mr Gillespie, coal seams and the potential requirement for grouting, and contamination and its removal, are matters that would have been the subject of conditions in any planning permission.  What would have needed to be done is not a matter that arises on this preliminary issue, although it will clearly be material to the assessment of the quantum of compensation. 
Highway improvements
64.	The claimants' case on the need for highway improvements and the contribution that a developer might be required to make was that there was a long-standing existing problem at the Bottle Bank/Bridge Street/Church Street junction, that the development of the subject land would not have significantly exacerbated conditions there, and accordingly that no contribution would have been required.  If a contribution had been required, it would have been small, no more than 5-16% of the estimated cost.  Mr Speed referred to a transport assessment for the Collingwood development (which comprised a 250-bed hotel and 50,000 sq ft of offices), prepared by Bullen Consultants in November 1998.  It concluded that the development necessitated an improvement to the junction by changes to the geometry and the provision of traffic signals.  It was in relation to this improvement that a Grampian condition was imposed in the Collingwood permission.  A condition in the same terms was included in the section 17 certificate, although, as I have said, the council accepted that for the residential development of the subject land alone only a contribution towards the cost of such improvements would have been required.   Mr Speed said that he had carried out an analysis of the Bottle Bank/Bridge Street/Church Street junction, and this showed that in 2000 the Church Street arm of this junction was clearly operating above capacity.  The traffic generated by the Nomad development would have resulted in increased queuing lengths.  However, he had assessed the volume of generated traffic and it would have been less than 5%.  At this level, according to the Institute of Highways and Transportation’s “Guidelines for Traffic Impact Assessment”, there was no need to include the traffic in an assessment because it was within the day-to-day variations frequently occurring in congested locations.  
65.	The council took issue with the basis of Mr Speed’s assessment of generated traffic, which was based on two sets of data from the TRICS database.  One of these related to a development of retirement flats in Gravesend and the other to a development in Salford with a wide variety of types of housing in a city centre location close to public transport.  It was suggested that the traffic generation per unit of flats on the subject land would have been significantly greater, with the 5% threshold therefore being exceeded.  They also challenged Mr Speed’s use of low-growth figures in his assessment of base traffic, and the basis of the information in the Bullen report.  Mr Szandrowski did not, however, produce any assessment of his own.
66.	In the light of the evidence produced it is clearly impossible to come to any more than a general conclusion on the likely impact of the development of the subject land on the Bottle Bank/Bridge Street/Church Street junction.  It appears to me inescapable that the traffic generation per unit would have been greater than that of the units in the TRICS database data sets relied on by Mr Speed, and that it would have been of sufficient proportions as to have enabled the council properly to have sought a contribution to the junction improvement.  Mr Szandrowski said that the cost attributable to the junction improvement would have been somewhat less than £200,000.  Doing the best I can on what is before me, I conclude that a contribution of £40,000 could properly have been secured by way of agreement from developers of the subject land.
Conclusion
67.	Although the plans produced by the claimant were the subject of detailed examination and criticism, descending in detail to such matters as the provision of refuse containers and bicycle storage, I do not think it appropriate to express my conclusions on the more detailed matters of design that were discussed.  My conclusion is that compensation in the present case should be assessed on the basis of an assumed planning permission for residential development, consisting of a building up to 8 storeys in height along the northern part of the site, stepped down to the adjacent buildings in Bottle Bank, subject to the conditions specified in the section 17 certificate, with the exception of conditions 20 and 28, with an access road constructed to adoptable standards and car parking provided at the rate of one space per dwelling of the size prescribed by the UDP.  A contribution of £40,000 to the cost of highway improvements would have to have been made, and would have been secured by agreement.  A purchaser could have had some hope that listed building consent for demolition of the tannery would be given.  
68.	The parties are invited to make representations on costs, and a letter relating to this accompanies this decision.  I should say that, subject to any representations that may be made, it would seem to me appropriate that costs should be reserved.  This decision will take effect when the question of costs has been determined.
							6 August 2004

							George Bartlett QC, President