MR Dean & Sons (Edgware) Ltd & Anor v West End Green (Properties) Ltd & Anor [2007] EWHC 1 (Admin)

[2007] EWHC 1 (ADMIN)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice,, Strand, London WC2A 2LLDate 11 January 2007
Handed down
Case No CO/9475/2005Case No BETWEEN:
Before
MR. JUSTICE CRANEM.R.DEAN & SONS (EDGWARE) LIMITEDClaimantFIRST SECRETARY OF STATEWEST END GREEN (PROPERTIES) LIMITEDWESTMINSTER CITY COUNCILDefendantsCase no. CO/9533/2005
Between
M.R.DEAN & SONS (EDGWARE) LIMITEDClaimantSAINSBURY SUPERMARKETS LIMITEDClaimantFIRST SECRETARY OF STATEDefendantWEST END GREEN (PROPERTIES) LIMITEDDefendantWESTMINSTER CITY COUNCILDefendantSAINSBURY SUPERMARKETS LIMITEDClaimantFIRST SECRETARY OF STATEWEST END GREEN (PROPERTIES) LIMITEDDefendantsWESTMINSTER CITY COUNCILInterested PartyMr.Paul Brown (instructed by Olswang Solicitors) appeared for Claimant M.R.Dean & Sons (Edgware) Ltd.Mr.William Hicks QC and Mr.Stephen Morgan (instructed by CMS Cameron McKenna LLP) appeared for Sainsbury Supermarkets Ltd.Miss Nathalie Lieven QC and Mr.Daniel Kolinsky (instructed by the Treasury Solicitor) appeared for First Defendant, the First Secretary of State, in both matters.Mr.David Elvin QC and Mr.Reuben Taylor (instructed by Berwin Leighton Paisner LLP) appeared for Second Defendant, West End Green (Properties) Ltd., in both matters. for Westminster City Council, the Third Defendant in the first matter and the Interested Party in the second matter, did not appear and was not represented._____________________________________________________________________JUDGMENTapproved for handing down, subject to editorial corrections
[1]These two applications under section 288 of the Town and Country Planning Act 1990 both seek to quash the decision of the First Secretary of State to grant planning permission on appeal for a development of land on the Edgware Road in London. The applications have been heard together. I shall refer to the two Claimants as “Dean” and “Sainsbury”, to the Second Defendant, the applicants for planning permission, as “West End Green”, and to the local planning authority as “Westminster”.[2]The decision of the Secretary of State in his decision letter (“DL”) dated 10 October 2005 followed an inquiry by an Inspector. The Inspector recommended in his report (“IR”) dated 9 December 2004 that the appeal be dismissed and permission refused in relation to the relevant development (Option A). The Secretary of State disagreed with the Inspector. He accepted the recommendation of the Inspector that permission be refused for Option B (which differed from Option A mainly in the height of the buildings).

The development

[3]The appeal site lies on the west side of Edgware Road, between Newcastle Place and Church Street, a short distance north of the A40 flyover. On its west side the site lies on Paddington Green and is partly within the Paddington Green Conservation Area. Conservation area consent was granted for the demolition of certain buildings on Church Street and Paddington Green. Much of the site is derelict. At the corner of Edgware Road and Newcastle Place stands 283 Edgware Road, owned by Dean and not part of the appeal site. 5 Newcastle Place adjoins 283 Edgware Road and is linked to it; I refer to these buildings together as “283”.[4]The development involves buildings of between 6 and 22 storeys, including a retail supermarket, 307 residential units, 156 holiday let units and associated car parking and landscaping.

The issues

[5]The issues fall essentially under two headings. The first relates to 283. Dean, supported by Sainsbury, submit that in granting permission the Secretary of State acted unlawfully in depriving Dean of the value, or part of the value, of 283. Dean rely on the proposition that 283 was effectively a “ransom strip”. Sainsbury submits, with support from Dean, that in any event the Secretary of State erred in deciding that permission should be granted despite the continuing presence of 283. Both Claimants complain of the inadequacy of reasons.[6]The second heading relates to the design of the buildings. It is submitted by Sainsbury that the Secretary of State(1) misinterpreted or misapplied the City of Westminster Urban Development Plan (UDP) DES 1;(2) failed to have regard to a material consideration, namely Planning Policy Statement 1 (PPS1);(3) failed to give adequate reasons for rejecting the Inspector’s recommendation about Option A.[7]I bear in mind the limitations of a section 288 application, as summarised in Seddon Properties Ltd. v. Secretary of State for the Environment (1981) 42 P. & C.R. 26, per Forbes J. at page 27. I remind myself of the words of Lord Hoffmann in Tesco Stores v. Secretary of State for the Environment [1995] 1 WLR 759, at 780, that in planning law “matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State”. In interpreting the policy documents I bear in mind the judgment of Brooke LJ in R .v. Derbyshire County Council, ex parte Woods [1997] JPL 958 and I agree with and adopt what Davis J. said in Cranage Parish Council and others v. First Secretary of State and others [2004] EWHC 2949 (Admin), at paragraphs 49 and 50.[8]I also bear in mind the summary of the law on the giving of reasons in South Somerset DC v. Secretary of State for the Environment [1993] 1 PLR 80 and South Buckinghamshire DC v. Porter (No.2) [2004] UKHL 33 at paragraph 36, per Lord Brown of Eaton-under-Heywood.[9]I shall deal with the two headings in turn. However, it is convenient to set out first certain important passages in PPS1 and DES 1.[10]PPS1 under Key Principles of National Planning Policies reads:
“13. The following key principles should be applied to ensure that development plans and decisions taken on planning applications contribute to the delivery of sustainable development: … (iv) Planning policies should promote high quality inclusive design in the layout of new developments and individual buildings in terms of function and impact, not just for the short term but over the lifetime of the development. Design which fails to take the opportunities available for improving the character and quality of an area should not be accepted … .”
[11]PPS 1 also states: “34. Planning authorities should plan positively for the achievement of high quality and inclusive design for all development, including individual buildings, public and private spaces and wider area development schemes. Good design should contribute positively to making places better for people. Design which is inappropriate in its context, or which fails to take the opportunities available for improving the character and quality of an area and the way it functions, should not be accepted”.[12]The London Plan contains nothing significantly different for present purposes and is not separately relied on.[13]The relevant development plan consisted, in part, of the City of Westminster Unitary Development Plan (“UDP”) of 1997. The 1997 UDP was in the process of replacement and at the time of the inquiry was at an advanced stage towards adoption. No complaint is made that significant weight was therefore given to the replacement UDP.[14]Section 1 (Principles) commences with DES 1 (Principles of Urban Design and Conservation). At 10.6, the “Aim” is “To ensure the highest quality in the form and quality of new development in order to preserve or enhance the townscape of Westminster; to provide adequate access; to reduce crime and improve security”.[15]The UDP continues:
“POLICY DES 1: PRINCIPLES OF URBAN DESIGN AND CONSERVATION (A) Architectural Quality, Local Distinctiveness and Sustainability Development should: (1) be of the highest standards of sustainable and inclusive urban design and architectural quality; (2) improve the quality of adjacent spaces around or between buildings, showing careful attention to definition, scale, use and surface treatment; …”
. Development should: (1) be of the highest standards of sustainable and inclusive urban design and architectural quality; (2) improve the quality of adjacent spaces around or between buildings, showing careful attention to definition, scale, use and surface treatment; …”.[16]The adopted UDP had read as follows: “POLICY DES 1 – Standards of design (A) In all cases of new development, on whatever scale, the City Council will expect the highest standards of design”.[17]At 10.7, the UDP reads:
“Policy Application New development is necessary to adapt the fabric of the City to present and future needs and to ensure the economic well-being of Central London as a whole. New development is encouraged in areas where it is beneficial. However, it must be designed to the highest standard …; respect the discipline imposed by the existing townscape; preserve or enhance the character and appearance of conservation areas; …”
[18]The passages on which the Claimants place emphasis are those referring to the highest standards of design and the need to take the opportunities available for improving the character and quality of an area. 283[19]Under this heading I address the submissions that Dean’s “ransom strip” interest in 283 was unlawfully removed or diminished in value, as well as the wider submissions in relation to 283.[20]Dean is the freehold owner and occupier of 283. Mr.Paul Brown, counsel for Dean, submitted(a) that the decision of the Secretary of State was inconsistent with established principles relating to the right of a landowner to a ransom value;(b) that his decision was contrary to normal principles of development control and inconsistent with his own guidance;(c) that in granting permission so as to extinguish Dean’s right to a ransom value, he acted for an improper purpose;(d) that he failed to take into account Dean’s arguments as presented to the Inspector or to give reasons for rejecting those arguments and acted in breach of Dean’s property rights, including his rights under Article 1 of the First Protocol to the European Convention on Human Rights. The submissions at (b) go wider than the ransom strip issue and overlap with submissions made by Sainsbury.[21]Sainsbury has an option to purchase 283. Sainsbury has paid a non-returnable option fee of £2.8 million, agreed a purchase price, if the option is exercised, of £5.6 million and also agreed to pay interest quarterly in advance at the minimum rate of 5% on the purchase price (no less than £280,000 per annum) from July 2002 until purchase or the expiry of the option after 5 years.[22]A section 106 obligation (under the 1990 Act) has been undertaken by West End Green to use best endeavours for a period of 10 years to acquire 283 for £1.25 million or twice market value, whichever is greater.[23]The Secretary of State agreed (DL 13) with the Inspector that retaining 283 would diminish the redevelopment proposal by its incongruity, whatever its use, by screening the supermarket entrance from the south, by constraining space about the base of the tower and by leaving the shops at the base of the tower somewhat removed from the main face of the development. He also agreed that the line of highways improvements would be bound to prompt the question why 283 has not been included. He also agreed that the footway past 283 would be very narrow indeed.[24]The Secretary of State then said: “14. However, the Secretary of State agrees with the Inspector that it would be possible to tolerate 283 Edgware Road remaining if there is a reasonable likelihood of it being acquired and demolished within the foreseeable future [IR 13.122]. For the reasons given in paragraph 13.13, the Secretary of State agrees with the Inspector that the potential ransom value of the property would disappear if planning permission were granted on Options A and B. Overall, the Secretary of State agrees with the Inspector that it would be possible to tolerate 283 Edgware Road remaining on the basis that a reasonable likelihood exists of it being acquired and demolished within the foreseeable future”.[25]The Inspector had pointed out [IR 13.13] that if no ransom value existed, the section 106 obligations seemed to offer attractive terms.[26]Mr.Brown founded his arguments on Stokes v. Cambridge Corporation (1961) 13 P. & C.R. 77, a decision of the Lands Tribunal. The Tribunal was considering the market value of land for the purposes of compulsory purchase under the Town and Country Planning Act 1959. The parties agreed that Planning permission for the land for industrial development must be assumed. However, the Tribunal recognised that the land’s value was affected by the need to acquire an access strip. The owner of land which held the key to the development would expect to receive a substantial share of the profit, although apart from that there would be no market for the strip. A value was accordingly placed on the strip and the value of the land compulsorily acquired was reduced in order to take account of what would have to be paid to obtain access over the strip.[27]The Court of Appeal considered the principle in Wards Construction (Medway) Ltd. v. Barclays Bank PLC and another (1994) 68 P. & C.R. 391. The court pointed out that the Pointe Gourde principle, reaffirmed by the Privy Council in Pointe Gourde Quarrying and Transport Co.Ltd. v. Sub-Intendent of Crown Lands [1947] A.C. 563, prevented compensation for the compulsory purchase of land from including an increase in value which was entirely due to the scheme underlying the acquisition. However, the court drew a distinction between that and the Stokes v. Cambridge principle, “if such indeed it is”, saying that the latter was a principle of valuation, not of law.[28]Mr.Brown submitted that a ransom value may arise even if the additional land is not necessary for access, where additional land is required in order to make the development acceptable in planning terms. A piece of land that has ransom value may have no amenity value and indeed may be unusable for any other purpose.[29]Mr.Brown relied on the history. In 1993 Westminster prepared a Planning Brief (or development brief) that treated the site including 283 as a whole. In discussing the widening of Edgware Road Westminster envisaged the use of compulsory purchase powers, if necessary, to achieve road widening. Planning permission was granted in 1998 for a development, but subject to the acquisition of 283, which proved impossible. Dean, submitted counsel, claimed that its ownership effectively gave it a ransom strip and had reason for so claiming and an expectation that it would receive its value. He pointed out that it was because 283 was likely to be acquired and demolished that its temporary presence could be tolerated. He would argue that it was only by removing the ransom value that this would be likely to happen.[30]Mr.Brown pointed out that compulsory purchase powers are available to acquire land required for a development to be carried out. Unless those powers are used, he submitted, it is no part of the Secretary of State’s function to assist developers to acquire land needed for development. He deliberately acted to cause the ransom value of 283 to disappear. In doing so he took into account an irrelevant consideration and/or acted for an improper purpose.[31]It is further complained that the Secretary of State completely failed to take into account the objections of Dean, which related specifically to the loss of ransom value. And it is said that he gave no reasons for rejecting the objections.[32]Article 1 of Protocol 1 of the ECHR reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”.[33]Mr.Brown submitted that the ransom value of land is an established right in domestic law and is a “possession” for the purposes of Article 1.[34]I was referred to Lough v. First Secretary of State [2004] 1 WLR 2557. The Court of Appeal was considering a claim by residents that a grant of planning permission breached their rights under Article 1. The discussion mainly dealt with Article 8. However, it was submitted that loss of value of the residents’ property could engage Article 1 of the First Protocol, a submission discussed only briefly in the judgment. At paragraph 51, Pill LJ, while accepting that diminution of value may be a reflection of loss of amenity and may help to demonstrate such loss, held that a loss of value “does not affect the peaceful enjoyment of possessions” and diminution of value is in itself not a loss contemplated by the article. The latter proposition receives some support from dicta in Decision as to Admissibility of Application no. 40425/98 by James Moore, a decision of the ECHR dated 15 June 1999.[35]Mr.Brown submitted that Lough was dealing only with such issues as privacy and amenity, where the impact of a proposal on such matters would be considered in the normal planning balance. He seeks to distinguish ransom value.[36]Mr.Brown submitted that a section 106 obligation is only imposed in cases of necessity and hence the acceptance of the obligation implied that Dean must receive the ransom value of 283. It is indeed correct that policy guidance continues to state that such obligations should be accepted only in cases of necessity. However, I accept that as a matter of law the test is not necessity: see Tesco Stores Ltd. v. Secretary of State for the Environment [1995] 1 WLR 759. The offer of a section 106 obligation must be sufficiently related to the proposed development to amount to a “material consideration” for the purposes of section 70(2) of the 1990 Act. Developers cannot be permitted simply to buy planning permission.[37]Mr.William Hicks QC, for Sainsbury, and Mr.Brown submitted that the Secretary of State granted permission apparently with the objective of ensuring that those in control of 283 did not receive a ransom. That could not be a proper purpose.[38]I am prepared to accept, as did Miss Nathalie Lieven QC in her submissions on behalf of the Secretary of State, that if a planning authority or the Secretary of State used planning powers for the purpose of removing ransom value or circumventing the need to use compulsory purchase powers, such an intention could in some circumstances involve the use of his powers for an improper purpose, at least if a true ransom strip was involved. Mr.Brown did not feel able to contend that it was the purpose of the Secretary of State to deprive Dean of ransom value. I see no reason to conclude that it was. However, Mr.Brown would argue that the decision was in fact one calculated to bring about the disappearance of any ransom value and in that sense such disappearance was part of what the Secretary of State intended.[39]I accept that financial considerations may sometimes be relevant in planning decisions: for example, the commercial viability of a proposal. That is clear from R. v. Westminster City Council, ex parte Monahan [1990] 1 QB 87, and the passage cited from the speech of Lord Scarman in Westminster City Council v. Great Portland Estates PLC [1985] AC 661 at 670. However, as Lord Scarman said, approving earlier authority, the test of what is a material consideration is whether it “serves a planning purpose” and a planning purpose is “one which relates to the character of the use of land”. As Mr.David Widdicome QC, sitting as a deputy High Court Judge, said in Brewer v. Secretary of State for the Environment (1988) 2 PLR 13, private rights (in that case, private rights of light) are generally not a relevant planning consideration.[40]I accept that planning decisions commonly affect the value of adjacent land, either increasing or diminishing the value. That is not in itself a relevant consideration, although a loss of amenity may be. Although ransom value may be relevant for valuation purposes, no authority has been cited to support the proposition that planning powers must not be exercised in a way that removes or diminishes any ransom value. Such a proposition, although attractively argued, is in my view misconceived. The existence of ransom value did not require that compulsory purchase powers must be used or that a Grampian condition should be imposed. I return later to the distinct question whether on planning grounds permission should have been granted in circumstances where 283 remained.[41]The proposition also puts the cart before the horse, as Mr.David Elvin QC, counsel for West End Green, submitted. In the present context at least, any ransom value depends on what planning permission exists. Thus although I fully accept that the concept of a ransom strip is well-recognised as a principle in valuing land, that does not mean that planning decisions must maximise or preserve ransom value that exists.[42]As to Article 1, no authority has been cited to me to establish that the article is engaged by a decision that affects the value of property. I consider that the conclusion reached in Lough does apply in the present circumstances. Any loss of value of 283 as a result of the Secretary of State’s decision does not affect Dean’s peaceful enjoyment of 283.[43]In fact, as counsel for both Defendants pointed out, Dean on any view have received substantial sums for 283 and are entitled to receive further substantial sums, sums in total greater than any market value.[44]I turn to the question whether, if 283 remained, permission should have been granted. The Secretary of State’s decision involved reaching two conclusions. The first conclusion of the Secretary of State, adopting the reasoning of the Inspector, was that if permission was granted 283 was likely to be acquired and demolished in the foreseeable future. For that purpose, the question whether ransom value would in fact remain was a relevant consideration. Secondly, the Secretary of State, again adopting the reasoning of the Inspector, considered that 283 could be tolerated in those circumstances.[45]Mr.Brown submitted that the Secretary of State should not have taken into account matters which either required future planning permission or conservation area consent. He submitted that demolition of 283 would require both. However, in fact 283 is outside the conservation area and planning permission would not be required.[46]He submitted that the Secretary of State should not have taken into account land outside the ownership or control of West End Green, unless Grampian conditions were imposed. The Secretary of State’s own policy, he submitted, was that such conditions should only be imposed where there is a reasonable prospect of the action being performed within the time limit imposed by the permission.[47]Mr.Hicks QC and Mr.Brown submitted that the Secretary of State effectively concluded that without the incorporation of 283 the proposal was not of the highest quality and missed an opportunity. In those circumstances permission should have been refused or a condition imposed. They complained that the Secretary of State gave inadequate reasons for not requiring the incorporation of 283 into the site.[48]In my judgment, the first of the two conclusions was one that the Secretary of State was clearly entitled to reach. It was a question of fact, albeit in the form of a prediction. There was nothing unreasonable in the prediction made. The second conclusion seems to me clearly to be a planning judgment for the Secretary of State, consistently with DES 1. If it was possible to tolerate the existence, foreseeably temporary, then the need to impose a Grampian condition did not arise. The Secretary of State gave clear reasons for his conclusions.

The design of the buildings

[49]The Inspector’s report contained two areas of criticism of the design of the development: Building E1 and its vicinity and the overall design concept.[50]Building E1 would stand at the corner of Newcastle Place and Paddington Green. The Inspector (at paragraph 13.89) stated that although the building was designed to appear as a pair of semi-detached buildings, the drawings did not give him confidence that the impression would be other than a single building. It was designed to reflect Mary Adelaide House at the other end of the Paddington Green terrace, but the Inspector did not believe that was the right urban design solution and, even if it were, the proposed design failed completely to reflect the building it sought to echo. He concluded: “In my opinion, the Conservation Area and the setting of the listed buildings deserve a more sensitive architectural solution on the site of Building E1”.[51]The overall design concept, on Edgware Road, was of a series of “mansion blocks”. Because of the small distance between the blocks and links between them, the Inspector’s opinion (at paragraph 13.94) was that the elevation to Edgware Road would be read as a single façade divided into three. He questioned whether the mansion block concept was appropriate to the site. He questioned the mansion block concept as appropriate for Newcastle Place and Paddington Green. He criticised the mass and bulk of Building B on Church Street. (It is accepted on all sides that some references to Building C were intended to refer to Building B and I correct where necessary). I can summarise, partly because the Inspector’s views are further reflected in the decision letter, which I shall set out.[52]The Inspector made it clear that his serious misgivings were about the design concept, not about the quality of design or architecture per se. I am informed that he is an experienced inspector with architectural qualifications. At 13.141 he concluded: “Despite it not being an objection raised by [Westminster] and despite CABE’s [Commission on Architecture and the Built Environment] support for the principles of the composition, I conclude that the design concept is inappropriate for the site and runs contrary to what is sought by Replacement UDP Policy DES 1”.[53]The Secretary of State decided as follows: “Building E1 and the adjacent listed buildings and Conservation Area23. For the reasons given in paragraph 13.89, the Secretary of State agrees with the Inspector that the Conservation area and the setting of the listed buildings in Paddington Green deserve a more sensitive architectural composition on the site of Building E1 … However, for the reasons given in paragraph 35 below, the Secretary of State has concluded that the benefits offered by Option A are sufficient to outweigh his concern about any adverse effect caused to the listed buildings and the conservation area. The overall design concept24. For the reasons given in paragraph 13.94, the Secretary of State agrees that the design of the elevation along Edgware Road is likely to be read as a single façade subdivided into three rather than as three separate buildings. However, unlike the Inspector, the Secretary of State is not persuaded that the mansion block concept is necessarily inappropriate for this particular site [IR 13.95]. He agrees with the Inspector that this concept would sit well with the proposed tower (IR 13.94) and that, in terms of the site itself, the design solution is a good one (IR 13.98). The Secretary of State acknowledges that the traditional character of this part of the Edgware Road derives from three or four storey terraces with ground floor shops (IR 13.95) but, as the Inspector has recorded, the appeal site’s surroundings are quite varied [IR 1.6]. Some modern development has occurred in places … and there are some mansion style buildings along Edgware Road [IR 13.138]. However, the presence of so many different architectural styles is not unusual in urban settings and the Secretary of State does not consider that it would be necessarily possible, or indeed desirable, to attempt to reflect all of them within a single development and that the composition of the proposal in this respect is acceptable.25. … for the reasons given in paragraph 13.96, the Secretary of State agrees with the Inspector that the mass and bulk of Building B would be overbearing in relation to the older buildings in the conservation area, although he recognises that there is a limited degree of connectivity to Sheldon House on the opposite side of Church Street.26. Although the Secretary of State has considered the comments of the Inspector with regard to the continuation of the mansion-style design in Newcastle Place and Paddington Green [IR 13.97], he does not think that this is a significant factor which counts against the proposals. For the reasons given in paragraph 13.98, the Secretary of State agrees that, although Buildings A1-A3 are close to the rear boundary, their distance behind the Paddington Green buildings is likely to avoid any seriously harmful impression of the proposals having a domineering or overbearing effect on existing buildings.27. The Secretary of State has taken into account that the … CABE broadly supports the principles of the composition of the proposals and the materials and detailing used [IR 13.141]. He agrees with the Inspector that the quality of the design or architecture per se does not give rise to any concern but, for the reasons given above, he does not share the Inspector’s misgivings about the concept being the correct one for the appeal site in urban design terms (IR 13.100). On balance, the Secretary of State considers that the design concept does not run contrary to what is sought by Replacement UDP Policy DES 1 which looks for the highest quality of form and design (IR 13.141).

The overall design concept

[54]The most significant parts of the Secretary of State’s Overall Conclusion read:
“31. The Secretary of State concludes that the proposals would bring significant regeneration benefits to the area, would enhance the vitality and viability of the District Centre and would provide much needed housing, including affordable housing, to this part of London. He has accorded significant weight to these benefits in considering these appeals. … 33. The Secretary of State has also given careful consideration to the impact of the proposals on the character of the Paddington Green Conservation Area and the listed buildings adjacent to the site. He concludes that the protection of the settings of conservation areas is a material consideration of considerable weight and he has therefore given particular attention to any deficiencies of the proposals in this respect. For the reasons set out in this letter, he accepts that both proposals would have some adverse impact on the Paddington Green Conservation Area although he does not share the Inspector’s concerns about the use of the mansion-block concept for the appeal site. He agrees with the Inspector that the proposals must be judged on their merits (IR 13.91) and not on the basis that an alternative might produce a better urban design solution. … Option A 35. The Secretary of State has concluded that the scheme proposed in Option A is in line with the development plan and national guidance in terms of retail and housing policies. He also considers that the overall design concept is acceptable and complies with the aims of Replacement UDP Policy DES 1. However, it does not fully comply with local plan policies DES 9 and DES 10 and he accepts that it will have an adverse effect on the Paddington Green Conservation area. Nevertheless, having weighed up all the arguments for and against option A, the Secretary of State has concluded that the shorter tower coupled with the benefits of the scheme in the form of regeneration of a brownfield site and the provision of affordable housing are, on balance, sufficient to outweigh the concerns he has identified with regard to conflict with the development plan and his reservations about some aspects of the design of the scheme and, particularly, its impact on the Paddington Green Conservation Area.”

Option A

[55]Submissions were made about the relevance of an alternative design that was not a subject of the inquiry.[56]Sainsbury had submitted an application that included 283 and treated the design differently. Submissions were made about the relevance of such alternative scheme. I was referred to R. (Scott Jones) v. North Warwickshire Borough Council [2001] PLCR 509. The Court of Appeal was considering the relevance of an alternative site. Having cited authorities, Laws LJ, with whom the other members of the Court of Appeal agreed, said: “If I may say so, with respect, it seems to me that all these materials broadly point to a general proposition, which is that consideration of alternative sites would only be relevant to a planning application in exceptional circumstances. Generally speaking … such circumstances will particularly arise where the proposed development, though desirable in itself, involves on the site proposed such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes, in the mind of a reasonable local authority, a relevant planning consideration upon the application in question”.[57]I accept that a similar approach is appropriate where it is contended that an alternative scheme on the same site has merit. Thus in my judgment the Inspector’s approach was correct, when he said: “13.7 … Sainsbury’s application … It is not relevant in the sense that the decision to be made does not involve a choice between the scheme and either of the appeal schemes. The appeals must be decided on their merits. If either is acceptable on its own merits, then a comparison with the Sainsbury’s scheme is unnecessary. However, if there are concerns that aspects of the appeals schemes are not to the standards one ought to expect, then I consider the Sainsbury’s application could be helpful if it showed that a different and better solution were possible”.[58]The word “acceptable” in this context must mean that the scheme ought in all the circumstances to be accepted, in accordance with relevant principles and policies. It should not in my view be used to imply some lower standard of the merely tolerable.[59]In relation to Building E1 and the adjacent listed buildings and the Conservation Area, the Inspector had (at paragraph 13.90) said that the Sainsbury application contained what he considered the basis for a more successful approach, albeit one that needed to be considered in more detail. At IR13.142 he said that Sainsbury’s proposals indicated to him “how an alternative design approach could produce what I would consider a better urban design solution for the site, or how variations within the concept of the appeal proposals could do so”.[60]The Secretary of State (at DL12) said: “The Secretary of State notes that Sainsbury have submitted an alternative proposal for the site. For the reasons given in paragraph 13.7, the Secretary of State agrees with the Inspector that the Sainsbury’s application has little relevance to the consideration of these appeals because the appeals must be decided on their own merits [IR 13.7] and, in any case, for the reasons given below, he concludes that Option A is, overall, an acceptable scheme for the site”.[61]The Secretary of State’s reference at DL33 to IR13.91 is a reference simply to a statement that the Inspector had considered the overall design concept on its merits, irrespective of whether Sainsbury should have raised its concerns with West End Green earlier.[62]Thus in my judgment the Secretary of State inaccurately represents the Inspector’s views about the alternative proposal, since at IR 13.90 and IR 13.142 the Inspector, having concluded that there were valid criticisms of the design, did regard the alternative as of some relevance.[63]It is clear, as Mr.Hicks QC pointed out, that the Secretary of State accepted the Inspector’s criticisms of buildings B and E1. It followed, he submitted, that unless there were no realistic design alternatives to buildings B and E1, the adverse effect of the conservation area and the setting of listed buildings must mean that the proposals did not achieve the highest standard of design and that they miss opportunities. He submitted that there is no reason why amendments to those buildings could not be made that would still provide the benefits of the scheme which the Secretary of State weighed against those concerns. He submitted that the reasoning is inadequate.[64]Mr.Hicks QC relied on the linking of design and conservation. He pointed to the requirements in sections 66 and 72 of the Listed Buildings Act 1990 that attention be paid to the setting of listed buildings and to the preserving or enhancing of conservation areas. PPG15 requires attention to those matters.[65]Mr.Hicks QC accepted that the UDP did not require every development to be a masterpiece in terms of architecture, but it did mean, he said, that if the urban design of a proposal is not of an appropriately high quality or does not properly exploit an opportunity for improvement, the proposal should be refused, so as to secure a redesign, unless there is a sound and sufficient reason for not doing so. He submitted that the same approach must be applied to conservation issues.[66]Mr.Hicks QC pointed out that the Inspector concluded that the overall design concept ran contrary to Replacement Policy DES 1. The Inspector did not in terms say that of Building E1, referring to DES 9 and DES 10. He submitted that there was no basis on which the Secretary of State could have concluded that the development did not run contrary to DES 1. That being so, his starting point for balancing the benefits was incorrect.[67]Mr.Hicks QC further points out that PPS1 is not listed in the decision letter among the policy documents that he has taken into account. Miss Lieven QC further submitted that it was not necessary for every policy document to be referred to in the decision letter. The policy set out in PPS1 was in fact met. The reasons given were sufficient.[68]Mr.Hicks QC submitted that the Secretary of State failed to address the Inspector’s concern about the “single façade”. He failed to make any reference to the Inspector’s view that Sainsbury’s application could indicate a more successful approach and appears to have misunderstood the Inspector’s position on that. He failed to explain adequately why he disagreed with the Inspector about the mansion block concept. Nor why he concluded that the design concept did not run counter to DES 1.[69]Miss Lieven QC described DES 1 as an aspirational policy which proposals should seek to meet, not a requirement that only buildings perfect in terms of architectural design can be accepted. She submitted that it would be wrong in law to consider the Sainsbury scheme if the proposal was an acceptable scheme. There was no need for the Secretary of State to refer to any alternative scheme.[70]Mr.Elvin QC reminded me that all public authorities supported the scheme, subject to Westminster’s objections to the height of the tower. CABE also gave support.[71]I do not accept as significant the Secretary of State’s omission of any reference to PPS1. It is indeed not necessary for every policy document to be referred to. The most relevant parts of PPS1 were reflected in the replacement UDP.[72]I come to my conclusions. I consider first the overall design. The Inspector doubted the appropriateness of the mansion-block concept and he also doubted whether the mansion-block concept had been achieved. The Secretary of State did not share the first doubt, but accepted the second. There was, however, no criticism of the design and architecture per se. The “highest standards of sustainable and inclusive urban design and architectural quality”, as set out in DES 1, can be met by a range of designs that will not necessarily achieve complete success. I prefer the submissions of Miss Lieven QC and Mr.Elvin QC on this aspect of the application. These were in my view clearly matters of planning judgment. The Secretary of State was entitled to reach the decision he did. His reasons in the paragraphs which I have cited sufficiently explained why he reached that decision.[73]The decision on building E1 and its vicinity raises somewhat different considerations. As I have concluded, the Secretary of State inaccurately represented the Inspector’s views about the Sainsbury alternative and his correct views about its relevance. The Secretary of State accepted the criticisms made by the Inspector, but weighed the benefits of the scheme as a whole against the disadvantages. However, obtaining the benefits of the scheme as a whole did not require that the disadvantages in relation to building E1 and its vicinity, and the effects on the listed buildings and the Conservation Area, had to be accepted. Or at least, the reasoning of the Secretary of State did not explain why those disadvantages had to be accepted.

Conclusions

[74]Thus I reject the arguments of the Claimants in relation to 283 and the overall design issue, but I accept the arguments on behalf of Sainsbury in relation to building E1 and its vicinity. The application by Dean fails. The application by Sainsbury succeeds.[75]I should be grateful if the parties can agree on the forms of order that should follow this judgment, but any submissions on that and other matters can be made orally when this judgment is handed down. Skeleton arguments are not required (but may be submitted if any party wishes).

Cited in 1 later judgment