The Cheesecake Shop Ltd (Or Masuka the Cheesecake Shop (UK) Ltd) v Secretary of State for Communities & Local Government & Anor [2009] EWHC 1748 (Admin)

[2009] EWHC 1748 (Admin)Case No CO/650/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice CentreDate 20/07/2009
Before
THE HONOURABLE MR JUSTICE WYN WILLIAMS
Between
THE CHEESECAKE SHOP LIMITED (OR MASUKA THE CHEESECAKE SHOP (UK) LIMITED)Claimant(1) THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendants(2) THE CITY OF NOTTINGHAM COUNCILDefendant
Mr Alex Goodman for ClaimantMr Peter Goatley for DefendantHearing Hearing dates: 10 July 2009
JudgmentMr Justice Wyn Williams :
[1]I have before me two sets of proceedings. In the first set of proceedings the Claimant seeks an order pursuant to section 288 Town and Country Planning Act 1990 (“the 1990 Act”) quashing a decision made by an Inspector duly appointed by the First Defendant. The decision which is the subject of this Claim was made by the Inspector on 12 December 2008. By her decision the Inspector dismissed the Claimant’s appeal against the Second Defendant’s refusal to grant the Claimant planning permission for a development at Poulton Drive, Daleside Road, Colwick in Nottingham.[2]The second claim is brought by way of judicial review. In these proceedings the Claimant seeks an order quashing a separate decision of the same Inspector made on 12 December 2008 by which she refused to award the Claimant its costs of the planning appeal. Counsel for the Claimant and First Defendant agree that the order I make in the judicial review proceedings should mirror the order I make in the proceedings under section 288 of the 1990 Act. Relevant Factual Background[3]The Claimant carries on the business of manufacturing and selling bakery products from premises at the address identified above. On 31 August 2007 it applied to the Second Defendant for planning permission for the demolition of that part of its premises which are currently used as a retail and office unit and for the erection of a two storey extension in its place. The Claimant’s intention was to use the ground floor of the newly erected premises for retail purposes and the first floor for office purposes.[4]On 26 October 2007 the Second Defendant refused the application for planning permission. There was but one reason for refusal which was formulated as follows:- “The proposed development does not accord with an approved masterplan for the area. As such the development would be likely to prejudice the implementation of a comprehensive re-development scheme for the area, contrary to policy MU6 of the Nottingham Local Plan, the Waterside Interim Planning Guidance and the Trent Lane Planning Brief.”[5]On 14 March 2008 the Claimant appealed to the First Defendant against the refusal of permission. It specified that it wished the appeal to be conducted by way of a hearing; the hearing took place before a duly appointed Inspector on 18 November 2008.[6]It was common ground before the Inspector that the appeal site was located within an area which had a specific designation within the Nottingham Local Plan; it lay within an area designated as the Waterside Regeneration Zone. As I understand it, the Waterside area comprises approximately 250 acres of mainly industrial land. It lies to the south-east of the city centre of Nottingham and it has a poor quality environment. From the late 1990s, it appears, the Second Defendant has been promoting its regeneration.[7]In November 2001 the Second Defendant produced a planning document entitled “Waterside Regeneration Interim Planning Guidance”. Two months later in January 2002 it produced a further planning document entitled “Trent Lane Planning Brief”.The Nottingham Local Plan was adopted in 2005 and, following the adoption of the Local Plan the Waterside Regeneration Interim Planning Guidance and the Trent Lane Planning Brief were adopted as Supplementary Planning Guidance.[8]In November 2006 an outline planning application was submitted to the Second Defendant in respect of 11 hectares of land bounded by Daleside Road, Trent Lane, Poulton Drive and the River Trent. The land which was the subject of this outline planning application included the appeal site. The main elements of the proposal as submitted to the Second Defendant were the provision of a maximum of 2,200 dwellings, a maximum of 1905 square metres of business floor space, a maximum of 3,709 square metres of commercial floor space, a minimum of 927 metres of community floor space and boat moorings, roads, landscaping and other ancillary development. On 19 September 2007 the Second Defendant resolved to grant planning permission in respect of this outline application subject to the completion of a satisfactory agreement under section 106 of 1990 Act. Despite the resolution, no grant of planning permission has yet been issued. Further, as I understand it, no agreement under section 106 of 1990 Act has been concluded.[9]Policy MU6 of the local plan relates, specifically, to the Waterside Regeneration Zone as a whole. It is in the following terms:- “MU6: Development proposals which contribute to the creation of a vibrant mixed use Riverside Quarter in the Waterside Regeneration Zone will be promoted and encouraged. In assessing development proposals the following factors will be taken into consideration:(a) the provision of comprehensively designed schemes which maximised the development potential of the area in accordance with an agreed masterplan and the principles of sustainable development;(b) the provision of a series of mixed use sustainable neighbourhoods that connect to the waterside, with each other and the surrounding communities;(c) the provision of modern business accommodation, high quality offices and workshops space including live/work accommodation for small businesses;(d) the provision of new housing providing a mixture of house type, size and affordability;(e) transport measures agreed with the Local Authority which contribute to the provision of an integrated transport network including an east-west public transport link through the area linked to the City Centre, a link road between Trent Lane and Racecourse Road and the provision of a comprehensive network of cycle routes and footpaths, linked to public transport provision and the surrounding areas, and connecting Colwick Path, Victoria Embankment and the canal along the north bank of the Trent;(f) the negotiation of financial contributions, or a contribution in kind, for the provision, and where appropriate maintenance, of measures and facilities made necessary by the development. Measures could include a contribution towards an integrated package of transport measures and drainage and public space works, including open spaces and a canal basin;(g) the provision of appropriate training schemes to be agreed with the City Council to maximise opportunities for local recruitment to job; and(h) improvements to the recreational, amenity and nature conservation aspects of the River Trent corridor.”[10]As is clear from its reason for refusal of the Claimant’s planning application, the Second Defendant took the view that the Claimant’s proposed development would be likely to prejudice the implementation of a comprehensive re-development scheme for the area. Accordingly, the Second Defendant was also of the view that the Claimant’s development proposal was contrary to policy MU6 of the local plan. At the hearing conducted by the Inspector it is clear that the Second Defendant sought to make good its stated reason for refusing planning permission.[11]It is against this background that I turn to consider the Inspector’s decisions. Inspector’s Decisions[12]As I have said, the Inspector issued two decisions both dated 12 December 2008. One decision dismissed the Claimant’s appeal against the Second Defendant’s refusal of planning permission and provided the reasons for such dismissal. The second decision dismissed the Claimant’s application for costs.[13]In her decision on the planning merits the Inspector identified the main issue for her consideration as being whether the development would prejudice the comprehensive redevelopment of the area. At the hearing the representatives of the Claimant and Second Defendant were asked to confirm whether such a formulation was an acceptable identification of the main issue in the appeal. Both representatives confirmed that it was.[14]In paragraphs 4 to 6 of her decision on the planning appeal the Inspector set out the essential points of the planning history as it related to the Waterside Regeneration Zone. Having done so she expressed the view that redevelopment of the area would take place at some stage in the foreseeable future. It has not been suggested in this appeal that such a conclusion was not open to her.[15]It is common ground that such reasons as were given by the Inspector for concluding that the Claimant’s development proposals would prejudice the comprehensive re-development of the area are to be found in paragraph 7 of her decision. For ease of reference I quote that paragraph in full:- “7. I am satisfied that the thrust of the LP (Local Plan) and the SPG (Supplementary Planning Guidance) advocates the comprehensive redevelopment of the area maximising the potential of the area, whatever its precise form would be, and even though this could be phased over a lengthy period of time. The development proposed here would represent a significant investment by the company in the property, but given that alternative high value proposals are being put forward I am not satisfied that it would maximise the sites’ development potential. Whilst it would improve the premises and would not be inconsistent with LP policy E4 or the thrust of the policies in Regional Spatial Strategy for the East Midlands (RSS8), it would not form any part of a comprehensive redevelopment scheme or to fit in with anything already proposed. By enhancing the value of the property, which would need to be acquired for any comprehensive scheme, it would increase the development costs.”[16]Much of the focus of these proceedings has been upon the meaning to be attributed to the last sentence of paragraph 7 as set out above. Before stating my conclusion as to its meaning it is as well to put the sentence in its proper context. First, it is common ground that paragraph 7, as a whole, is that part of the decision letter of the Inspector which identifies the reasoning for the Inspector’s conclusion that the Claimant’s development proposal would prejudice the comprehensive re-development of the area. Second, it is clear from the reason for refusal and the notes of the evidence of what transpired before the Inspector that the Second Defendant was asserting that the Claimant’s proposals would be likely to prejudice the implementation of the redevelopment scheme for the area. Third, and equally clearly, the case for the Claimant was that the grant of planning permission for its development would not prejudice the comprehensive redevelopment of the area in any way. In the particular context of this case, at the very least, any increased value to be attributed to the Claimant’s property following the grant of planning permission for its development proposal was irrelevant.[17]Against this background it seems to me that the Inspector was reaching the following conclusions in the last sentence of paragraph 7 of her decision letter. First, the grant of planning permission for the Claimant’s development proposal would enhance the value of the Claimant’s property. Second the Claimant’s property would have to be acquired for any comprehensive scheme. Third, following the grant of planning permission the costs of acquisition would be greater than if planning permission was not granted. Fourth that would increase the costs associated with the comprehensive development. Fifth that was prejudicial to the comprehensive redevelopment of the area.[18]In my judgment the interpretation I have placed upon the last sentence of paragraph 7 follows from the terms of the decision letter itself when read against the context to which I have referred. My view as to its proper interpretation, however, is reinforced by the terms of the decision which the Inspector issued in respect of the claim for costs. The Claimant’s claim for costs was mounted upon the submission that no financial information had been placed before the Inspector to support the contention that the Claimant’s development proposal would prejudice the comprehensive redevelopment of the area (see paragraph 1 of the costs decision). The response of the Second Defendant was to submit that the Claimant’s proposal would affect the costs and viability of the wider scheme (see paragraph 2). Paragraph 4 of the costs decision reads:- “As I have dismissed the appeal, it follows that I do not accept that there is insufficient evidence on which to base my conclusion that the scheme would affect the prospects for the comprehensive redevelopment of the area. Although no financial information has been provided by any party it makes sense that the development would increase the value of the premises, which would be an additional burden on the costs of any re-development, which is unwarranted.” In my judgment the terms of this decision strongly support the interpretation which I have placed upon the last sentence of paragraph 7 in the planning decision. Grounds of Challenge[19]The Claimant advances four grounds upon which it is argued that the Inspector’s decision should be quashed. I will deal with each in turn. Ground 1[20]The Claimant argues that the Inspector took into account an immaterial consideration. Mr Goodman, on behalf of the Claimant, submits that the Inspector should have ignored the fact (assuming it to be the case) that the value of the Claimant’s property would be increased if planning permission was granted with a consequent cost to the comprehensive scheme in the event that the Claimant’s property was acquired for the purposes of that scheme either compulsorily or voluntarily. In support of this submission he placed great emphasis on the decision of Richards J (as he then was) in Alnwick District Council v Secretary of State for the Environment, Transport and the Regions [2000] 79 P & C.R. 130. In that case the Local Planning Authority (the Claimant in the proceedings) applied to quash a decision of the Secretary of State under section 100 of the 1990 Act modifying an outline planning permission which had been granted by the Claimant some years previously. The proceedings raised a number of legal issues but one of the principal issues raised was whether the Secretary of State had erred in treating as irrelevant the impact on the Claimant of paying substantial compensation which would be a necessary consequence upon the modification of the planning permission. The conclusions of Richards J upon this issue are to be found in the following extracts from his judgment:- “I turn back to the main issue, whether the cost to the local planning authority of paying compensation is capable of being a material consideration as a matter of general principle (i.e. leaving aside the separate argument about the specific land-use consequence for the council). The Inspector and the Secretary of State proceeded on the basis that it is not, since it is not a land use planning matter. In my judgment that was a correct approach. A decision maker will often be entitled, if not required, to take into account as a relevant or material consideration the financial consequences of his decision. Consideration of the effects of a decision on others is a normal aspect of the decision-making function and there is no difference of principle between financial effects and other effects. …….. Where decisions involve the expenditure of public funds, the decision maker will normally be entitled or required to take into account matters such as the availability of funds and competing demands on those funds. All that, however, is at a level of generality. Whether a particular consideration is one that a decision maker is entitled or required to take into account in the exercise of a statutory power depends ultimately on the statute conferring that power. A statute may restrict the range of permissible considerations either expressly or by implication. Whether it does so is to be determined by reference to its provisions and to the statutory purpose. In the exercise of their functions under section 97 and 100 of the 1990 Act with regard to the revocation and modification of the planning permissions, local planning authorities and the Secretary of State are required to have regard to “material considerations” (see section 97(2)). What is capable of amounting to a material consideration for this purpose must in my view be the same as in relation to the initial determination of planning applications, i.e. the “material considerations” referred to in sections 70(2) and 54A. Although the courts have adopted a flexible approach towards the concept, a consideration must in broad terms be a “planning” consideration in order to be material for that purpose. Any consideration which relates to the use and development of land is capable of being a planning consideration (see Stringer v Minister of Housing and Local Government [1970] 1 W.L.R. 1281, at 1294). It follows that financial consequences are capable of amounting to a material consideration in so far as they relate to the use and development of land. R v Westminster Council, ex parte Monahan is an example. The need for a connection with the use and development of land was helpfully spelled out in the application of that decision in Northumberland County Council v Secretary of State for the Environment. It also follows, however, that in so far as financial consequences do not relate to the use and development of land, they are not capable of amounting to material considerations. In my view that is fatal to the general proposition for which Mr Hoggett contends, that the cost to the local authority may be taken into account irrespective of land-use consequences…………..”[21]In Alnwick the Claimant ran a subsidiary argument. It suggested that the compensation cost could be taken into account since should the planning permission be modified and the Claimant ordered to pay compensation it would be unable to provide proposed leisure facilities which was a land used consideration. In respect of that argument Richards J observed:- “I turn to consider Mr Hoggett’s narrower argument that the cost to the council was capable of being a material consideration in this case because of its land use consequences, namely the effect on Alnwick’s proposed leisure facilities. It is a weightier argument, but I am not persuaded by it. It seems to me that the matters relied on as relating to the use and development of land are altogether too remote. The financial considerations in ex parte Monahan were closely related to the proposed development, since one part of the development would not be viable unless permission were granted for the other part. The relevant issue in Northumberland County Council was the weighing of the economic advantages of a development against the environmental objections to it. By contrast, the consideration raised in the present case has nothing to do with the development that is the subject of the planning permission. It arises as a contingent consequence of the statutory obligation to pay compensation once the relevant planning decision (i.e. to revoke the permission) has been taken. I say “contingent” consequence because everything depends upon the particular circumstances of the local planning authority at the time of the decision: it is a function of the funds available to the authority and of the authority’s existing plans for development. I do not think that such an indirect consequence of the payment of compensation is sufficient to justify treating the financial impact on the local authority as a consideration relating to the use and development of land.”[22]It seems to me that the issue for my consideration is whether or not the Inspector was entitled to conclude that the additional costs which the wider scheme would bear in the event that planning permission was granted for the Claimant’s proposal had land use consequences which were linked to the proposed development. If so, then provided those consequences were not too remote in the way described by Richards J in Alnwick the additional costs could amount to a material consideration.[23]I have reached the conclusion that the Inspector was entitled to conclude that the additional costs did have land use consequences which were not too remote in the context of this case. The plain fact is that the Inspector’s conclusion was that the extra costs which would follow from the grant of planning permission prejudiced the wider development scheme. The sums payable to the Claimant for its land were inextricably bound up with the alleged prejudicial effect upon the comprehensive scheme. That being so, to repeat, the Inspector was entitled to conclude that the additional costs were a material consideration. Accordingly I reject the challenge to the Inspector’s decision based upon Ground 1. I stress, of course, that my decision on this ground presupposes that evidence existed which justified the conclusion that an increase in cost to the comprehensive scheme was prejudicial to it and was consequent upon the grant of planning permission for the development sought by the Claimant. Ground 2.[24]In fact, Mr Goodman submits that no evidence did exist upon which the Inspector could reasonably conclude that the proposed development would cause prejudice to the comprehensive redevelopment of the area. In order to analyse whether Mr Goodman can make good this submission it is first necessary to ascertain the prejudice to the comprehensive redevelopment of the area identified by the Inspector in her decision letter.[25]Mr Goatley, on behalf of the First Defendant, submits that the prejudice identified by the Inspector was the prejudice inherent in her finding that the proposed development put forward by the Claimant was in conflict with policy MU6 in that it did not maximise the development potential of the site. Further the Claimant’s proposed development would not form any part of a comprehensive redevelopment scheme or fit in with anything already proposed – see paragraph 7 of the decision letter.[26]For my part I have some doubt about whether this part of the Inspector’s decision was intended to identify prejudice as opposed to identifying those features of the proposed development that conflicted with policy MU6. However, I am prepared to accept that Mr Goatley is right in his submission. Nonetheless it seems to me to be clear that the Inspector also identified as prejudice to the comprehensive redevelopment of the scheme the fact of the enhancing of the value of the Claimant’s property, should planning permission be granted, with a consequent increase in development costs.[27]The issue of whether or not the Claimant’s proposed development maximised the development potential of the site was obviously a matter for the Inspector’s judgment. It does not seem to me that any evidence in the sense that word is normally used would be necessary to justify the Inspector reaching the conclusion that she did on this point. Mr Goodman makes no submission to the contrary. He does, however, submit that the Inspector’s conclusion that planning permission would enhance the value of the property and that it would thereby increase the development costs of the wider scheme (thereby becoming prejudicial to it) was a conclusion which was properly open to the Inspector only if evidence existed to support it.[28]In advance of the hearing before the Inspector the Second Defendant produced a statement of its case. It sought to justify its reason for refusing planning permission which, to repeat, was that the Claimant’s proposed development would be likely to be prejudicial to the implementation of a comprehensive redevelopment scheme. In the statement of case, paragraph 3.14 is the most pertinent upon the issue now under consideration. It reads:
“Furthermore, the Council considers that the level of investment proposed, and the additional floor space provided by the building, represent significant long term commitments that would be likely to restrict alternative comprehensive proposals. A comprehensive approach to the development will almost certainly necessitate the demolition of the Cheesecake Shop and connected units and it is submitted that significant additional expenditure on the building would make any scheme involving the demolition more difficult to achieve. The proposals would therefore restrict the range of options for comprehensive development and could potentially affect the viability of a range of alternative development proposals. It should be noted that the ISIS/EIP scheme requires significant levels of gap funding and that the Cheesecake Shop and adjoining unit are not currently under the ownership of the any of the applicants for the comprehensive scheme.”
[29]Stripped to its essentials paragraph 3.14 asserts that the Cheesecake shop and adjoining units were not under the ownership of the applicants for planning permission for the comprehensive scheme. Accordingly the Cheesecake shop (and other units) would have to acquired and demolished. Additional costs would thereby be incurred.[30]At first blush this might be considered sufficient evidence upon which to found the Inspector’s opinion. It seems to me, however, that upon analysis that is not so. The starting point must be that a building exists upon the appeal site which is not in the ownership of any current applicant for planning permission for a comprehensive scheme. There is no realistic possibility that the current building would survive in any comprehensive development foreseen. Consequently the cost of acquisition of the site and demolition of the building is an inevitable consequence of the implementation of the comprehensive scheme. I next consider whether it was at least probable that the grant of planning permission would cause such an increase in the costs associated with acquiring the land and demolishing the building so as to prejudice the comprehensive scheme. On that issue, it seems to me, there was simply no evidence available to the Inspector. I do not think the mere assertion to that effect made by the Second Defendant in its statement and repeated by Mr Poole on its behalf in the hearing constitutes a sufficiently firm evidential base for the conclusion reached by the Inspector. I say that for a number of reasons. First it was common ground that the redevelopment of the area in which the appeal site lies would take place many years into the future. That, obviously, makes a prediction about comparative costs very difficult. In any event, however, and importantly, the Second Defendant had made no attempt at even the most rudimentary prediction of comparative costs. Second it was not sufficient, in my judgment, for the Inspector to conclude that there would be an increase in costs for the comprehensive scheme should planning permission be granted. Given the way the Inspector formulated the main issue in the case it was necessary to consider whether such increase as was predicted to occur was prejudicial. In the circumstances of this case it could not reasonably be assumed that an increase in costs associated with the Claimant’s development would be such so as to be prejudicial.[31]There is a third reason why I have reached the conclusion that there was no evidence before the Inspector to justify her conclusion of prejudice on this point. It could not safely or properly be assumed in the absence of information or evidence that the demolition cost of the existing building would be substantially less than any demolition cost associated with the building for which permission was sought. So far as acquisition costs are concerned I have been persuaded by Mr Goodman that there is at least a real possibility that there would be no difference at all. That is so by virtue of the somewhat complicated provisions contained within the Land Compensation Act 1961. At one point during the oral submissions I felt it might be necessary to determine, as a matter of law, whether upon a compulsory acquisition of the Claimant’s land the compensation payable in respect of the land would be greater if planning permission was granted than would be the case if no such grant was made. I have reached the conclusion, however, that I do not need to resolve the point. I say that for this reason. Mr Goatley accepts that a procedure exists under the Land Compensation Act 1961 whereby the Claimant could obtain a certificate to the effect that in the absence of its land being acquired compulsorily for the comprehensive scheme planning permission for its proposed development would have been granted (see section 17 of the Act). Mr Goatley was realistic enough to accept that the obtaining of such a certificate was at least a live possibility. In those circumstances it simply cannot be correct to proceed on the basis, as the Inspector did, that the grant of planning permission would increase the costs associated with the comprehensive development.[32]I have reached the conclusion that Mr Goodman’s challenge under Ground 2 is made out. In my judgment there was no evidence upon which the Inspector could properly and reasonably justify a conclusion that the grant of planning permission would prejudice the comprehensive redevelopment scheme by increasing the cost of that scheme.[33]In paragraph 4 of her decision on costs the Inspector explained her viewpoint on this issue with even more clarity than that which is set out in her decision in the planning appeal. She said:- “It make sense that the development would increase the value of the premises, which would be an additional burden on the costs of any redevelopment, which is unwarranted.” In my judgment her view that any increase value of the premises would be an additional burden on the costs of redevelopment was not one which was justified on the evidence before her for the reasons I have explained. Certainly, in my judgment, there was no evidence for the conclusion that an unwarranted additional burden of cost would be imposed as a consequence of the grant of planning permission.[34]As I have said I accept that Mr Goatley may be correct when he submits that this aspect was but one of the aspects of prejudice to the comprehensive scheme which the Inspector identified. Nonetheless, it seems to me to be clear that the Inspector attached importance to this aspect of the case. That is hardly surprising since it was at the forefront of the Second Defendant’s reason for refusing permission. Accordingly, it seems to me that the Claimant has established that the Inspector reached a conclusion which was important to her decision and which was not justified on the evidence before her. In those circumstances her decision falls to be quashed – see Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR1320. Grounds 3 and 4[35]I would not make a quashing order in respect of Grounds 3 and 4. In my judgment the complaint against the Inspector cannot be categorised as procedural unfairness. It is, as I have found, rather a complaint that she reached a conclusion upon an important point in the case which was material to her decision and no evidence existed to justify such a conclusion.[36]Ground 4 is a complaint that the Inspector failed to have proper or adequate regard to the material evidence advanced on behalf of the Claimant to the effect that the Claimant’s development proposal was “critical to maintaining employment levels” (of over 30 staff) and providing further job opportunities; there is a further complaint that the Inspector failed to have proper regard to supporting parts of the Development Plan, including policy E4.[37]It is true that the Inspector expresses herself somewhat shortly (even in a decision letter which is noteworthy for its succinctness) about this aspect of the Claimant’s case. She simply observes that the proposal would not be inconsistent with policy E4 in paragraph 7 of her decision.[38]It is obvious from the notes of the hearing that policy E4 and the employment opportunities generated by the proposal were put squarely before the Inspector. Ultimately it was a matter of planning judgment, for her as to the weight to be attached to these material considerations. It is a rare case in which a Court is prepared to quash a decision on the basis that the weight attached to a material consideration was insufficient or inadequate. As I observed, openly, during the course of the hearing I would not be prepared to quash this decision on the basis of ground 4. I accept Mr. Goatley’s submissions about this aspect of the case. The points taken by the Claimant about the beneficial aspects of the development proposal and its conformity with policy E4 do, however, have this significance. It makes it easier for me to conclude, as I do, that it is appropriate to grant relief. Mr Goatley did not argue, expressly, that I should not grant relief if I found either Ground 1 or Ground 2 made out in this case. However, it seems to me that I can be confident that on a reconsideration of the Claimant’s appeal by an Inspector there is at least a reasonable possibility that the appeal will be successful given that the Claimant’s development proposals conform with policy E4 and has employment creating advantages and given that the negative point that a grant of planning permission would necessarily add to the costs of a comprehensive redevelopment of the area may be removed from the balancing exercise which an Inspector is bound to perform.[39]At the handing down of this judgment I propose to quash the Inspector’s decision. A reconsideration of the appeal will follow. The parties agree that costs should follow the event and I propose to make an order that the Defendant pay to the Claimant the costs of and incidental to the claim under section 288 of the 1990 Act to be the subject of a detailed assessment on the standard basis if not agreed.[40]I also propose to quash the Inspector’s decision in relation to costs. The Defendant accepts that such an order should be made in the event that a quashing order is made under section 288 of the 1990 Act. In respect of the claim by way of judicial review, therefore, I grant permission, quash the Inspector’s decision and make an order that the Defendant should pay to the Claimant the costs of and incidental to these proceedings to be taxed on the standard basis if not agreed.[41]I propose to hand down my judgment in this case at 10.30am on 20 July 2009 at the Birmingham Civil Justice Centre. No party need attend. If the Defendant wishes to seek my permission to appeal written submissions should be sent to me identifying the likely grounds of appeals whereupon I will consider whether or permission should be granted.

Cited in 1 later judgment