First Secretary of State & Anor v Sainsbury's Supermarkets Ltd

This case concerns a planning permission granted by the First Secretary of State (now the Secretary of State for Communities and Local Government) on 10 October 2005 in respect of an area of land lying broadly speaking to the west of the Edgware Road and a little to the north of the A40 Marylebone Flyover in London. The grant of permission followed a public inquiry in 2004 into appeals by West End Green (Properties) Limited (“West End Green”) against non-determinations by the local planning authority, Westminster City Council (“Westminster”). The permission was for a mixed development of a retail supermarket, 307 residential units, 156 holiday units, associated car parking and landscaping. This development was known during the appeal process as Option A. By the same decision the First Secretary of State refused permission for another scheme of mixed development known as Option B, but granted conservation area consent in respect of both options.

The appeal site was described by the inspector who conducted the public inquiry as having “a back to front L shape”. It was bounded by Edgware Road on its eastern side and by a side road called Newcastle Place on its south, with the Paddington Green police station lying on the other side of Newcastle Place. A substantial part of it was cleared land used as a temporary car park. Most of the buildings within the site were vacant. Some of the more westerly part of the site fell within the Paddington Green Conservation Area, Paddington Green itself being to the west of the site.

Where Newcastle Place joined Edgware Road near the south-eastern corner of the site stood an early Victorian four-story building, including a ground floor shop, known as 283 Edgware Road. That did not form part of the appeal site. Its freehold was owned by a company called M R Dean and Sons Limited (“Dean”) which ceased trading in 2002, but an option to purchase number 283 had been obtained by Sainsburys Supermarkets Limited (“Sainsburys”), which had been seeking representation in the redevelopment. Sainsburys was an objector at the public inquiry, contending amongst other things that an acceptable scheme in planning terms could not be achieved without the inclusion of number 283 within the redevelopment site.

The inspector recommended the granting of conservation area consent but the refusal of planning permission for both schemes, though on more limited grounds in the case of Option A. The First Secretary of State, as I have indicated, accepted these recommendations with the important exception of planning permission for Option A, which he granted. That decision to grant permission for that option was then challenged by Sainsburys and by Dean in separate applications under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”). Those applications came before Crane J., who dismissed that made by Dean but allowed that by Sainsburys, and in consequence the judge quashed the Secretary of State’s decision to grant permission for Option A to West End Green. Both the Secretary of State and West End Green now appeal against the decision to quash. By a respondent’s notice Sainsburys seeks to uphold Crane J’s decision on additional grounds.

The issues in these appeals are narrower than those which Crane J had to determine and much narrower than those dealt with by the inspector. Those which remain concern matters of design, planning policies relating to design, and the adequacy of the Secretary of State’s reasons for his decisions on those matters. Their determination requires one to look at both the relevant policies and the details of the development proposed by West End Green.

Those policies contained in the development plan for the area are of particular significance because of what is now section 38(6) of the Planning and Compulsory Purchase Act 2004. Like its predecessor, section 54A of the 1990 Act, it requires decisions on planning applications to “be made in accordance with the [development] plan unless material considerations indicate otherwise.” In the present case the relevant part of the statutory development plan was the City of Westminster Unitary Development Plan (“the UDP”), in which the appeal site was identified as a site for mixed development, including residential and retailing. It was not suggested by any party that the UDP gave rise to any land use objection to the appeal proposals.

The Conservation and Design chapter of the UDP contained a policy DES 1, dealing with standards of design, which provided:

“(A)

In all cases of new development, on whatever scale, the City Council will expect the highest standards of design.”

This UDP was in the process of being replaced by a new plan which at the time of the inquiry was at an advanced stage towards adoption. It too had an urban design policy entitled DES 1. It was headed “Principles of Urban Design and Conservation” and in part it read as follows:

“(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;

(3)

use high quality, durable and, where possible, indigenous and recycled materials appropriate to the building and its setting”.

There were also policies in this Replacement UDP, as in the adopted UDP, seeking to preserve or enhance the character and appearance of conservation areas (DES 9) and to protect the setting of listed buildings (DES 10). Finally there was general policy guidance at a national level to be found in Planning Policy Statement 1 (“PPS 1”), which at paragraph 13 set out certain “key principles”. The fourth of those principles was:

“(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.”

Later, PPS 1 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.”

A number of buildings were proposed by West End Green in its Option A scheme. At the southern end of the site there was to be a 22 storey tower, with shops at ground floor level and residential units above. This was known as Building D. Along the Edgware Road frontage were proposed 3 “mansion” buildings to be used for holiday lets: Buildings C1, C2 and C3. There would be three further mansions towards the middle of the site for residential use (Buildings A1, A2 and A3) and a building on its northern frontage for affordable housing (Building B). The proposed supermarket was shown occupying the ground floor level below Buildings A, B and C.

The more controversial buildings were known as E1 and E2. E1 was shown as a 5 storey residential building at the Newcastle Place/Paddington Green corner. E2 was to the east of that along Newcastle Place, being a 6 storey residential building.

At the inquiry Sainsburys advocated a different design for the site and had actually submitted a planning application for their alternative scheme. That application had not at that time been determined by Westminster and was not, as an application, before the inspector or Secretary of State for determination. The proposed uses were broadly similar to the appeal scheme, and indeed the design included a 22 storey tower at the southern end of the site. However, the frontage development along Edgware Road was shown as rising from north to south from 5 storeys to 9 storeys at the Newcastle Place end. The frontage development along Newcastle Place also showed changes in height as one went westwards, falling from the 22 storey tower to 16 storeys and then to 6 storeys at the corner with Paddington Green.

At the public inquiry in 2004, Westminster as the local planning authority raised two objections to the Option A scheme. One concerned a safeguarding line for the improvement of Edgware Road and the other was that a section 106 agreement did not provide for a sufficient financial contribution from West End Green. The only concerns Westminster had about design related to Option B; they had no design objection to Option A. Indeed, the authority expressed its support for the redevelopment of this “brownfield site,” as paragraph 6.1 of the inspector’s report records:

“Westminster City Council’s support for redevelopment of this brownfield site is long standing and well documented. WCC recognises, and wishes to realise, the land use planning benefits that would flow from the implementation of a suitable scheme. There have been a number of previous attempts to promote schemes designed to achieve these benefits, though none has so far proved fruitful.”

It appears that the reference to “long-standing” support reflected the fact that Westminster had been supporting the principle of regeneration of the site through a mixed use scheme for something like 15 years by the date of the inquiry.

Sainsburys raised a number of objections to Option A. For present purposes it is sufficient to record that they contended that the appeal proposals were not urban design of the highest standard and so did not comply with the emerging UDP and Government policy. Their own scheme was relevant simply to illustrate that there were other more appropriate approaches to some aspects of urban design for the site. West End Green contended that the appeal scheme was of high quality and both met policy requirements and justified the grant of planning permission.

Early on in his conclusions the inspector dealt with the significance of the application by Sainsburys. At paragraph 13.7, he said:

“It is not relevant in the sense that the decision to be made does not involve a choice between that scheme and either of the appeals 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 that the Sainsbury’s application could be helpful if it showed that a different and better solution were possible.”

The inspector considered that retaining number 283 would “diminish the redevelopment proposed by its incongruity” but concluded that it would very probably not remain indefinitely, because if planning permission were granted there was a “reasonable likelihood of a sale.” The inspector looked in detail at the highway and traffic considerations and did not regard those or the safeguarding line as of sufficient significance to justify a refusal of permission.

On visual and design issues, he did not find the Option A tower or its Building E2 objectionable (in contrast to option B). But he was critical of Building E1 at the south-western corner of the site, because he regarded its height and frontage width as not being “the right urban design solution.” (paragraph 13.89). His “opinion” was that the Conservation Area and the setting of certain listed buildings deserved “a more sensitive architectural composition on the site of Building E1” (ibid). He recognised that the local planning authority was not critical of this aspect of the scheme, but he observed that the Sainsburys’ application contained what he considered to be the basis for a more successful approach. In addition, the inspector criticised what he called “the overall design concept”, insofar as it involved the mansion blocks on the Edgware Road frontage and Building B on the northern frontage. His objection here seems to have been one related to mass and scale.

I set out his overall conclusions on Building E1 and the design concept in full:

“ Building E1

13.137

I conclude that the mass, design and building line of Building E1 are inappropriate in the context of the listed buildings to the north on Paddington Green and the character and appearance of the Conservation Area. I see no compelling reason why this building (or, indeed, Building E2) should be designed in very much the same idiom as the buildings along the Edgware Road frontage when the context is very different. I conclude that the design and building line of Building E1 conflict with the aims of Replacement UDP Policies DES 9 and DES10.

The design concept

13.138

The traditional character of this part of Edgware Road derives from three- or four-storey terraces with ground floor shops. In places, notably Sheldon House and Parsons House, there has been modern redevelopment. The buildings in Paddington Green are generally older than those in Edgware Road and, together with the green itself, I consider the area rightly designated a conservation area.

13.139

I have serious misgivings about imposing into this context a development based on the concept of the mansion – more particularly, one in which a number of mansions or buildings seem to be moulded almost into one single building by a uniform style and height very different to the character of the surrounding buildings. There are mansions to the south of Harrow Road and to the north of Maida Avenue – but that does not seems to me to justify introducing them here, in an area with its own distinctive character (and, in fact, with a character in Paddington Green different to that in Edgware Road).

13.140

In addition to the principle, the mansion concept seems to raise particular problems with regard to Buildings E1 and E2 (which I have considered above) and the Church Street façade, where I consider that Building C [It is agreed he meant Building B] would be overbearing in relation to the existing buildings in the conservation area. My concern is with the concept, not with the quality of the more detailed aspects of the architecture. Nor does my concern extend to the tower. I find that a 22 storey tower would sit comfortably in relation to Hall and Braithwaite Towers and Paddington Green Police Station. Also, the design of the tower is rather different to the mansions around it, which indicates that it is not visually dependant on the architectural concept adopted over the rest of the site.

13.141

Despite it not being an objection raised by WCC, and despite CABE’s 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.

Sainsbury’s application

13.142

Sainsbury’s proposals are not fully evolved. In general terms, I agree with CABE’s views on them. At the same time, they indicate clearly to me 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. I have indicated above where or why I think improvements could arise. The architectural and urban design criticisms I have raised are based on objective assessment of the points raised by others and not on personal design preference or prejudice.”

Consequently he recommended refusal of planning permission for both Option A and Option B.

The Secretary of State in his decision letter dated 10 October 2005 noted the obligation to determine such applications in accordance with the development plan unless material considerations indicated otherwise, and he made reference both to the UDP and the replacement version of it. He concluded that there was, in principle, development plan support for a mixed use development of retail and housing on the appeal site, though there was conflict with the safeguarding line on Edgware Road. He expressly noted Westminster’s support for “the redevelopment of this brownfield site” and he concluded that such development would achieve certain benefits:

“The Secretary of State considers that development of this brownfield site would offer significant regeneration benefits, would promote and enhance the vitality and viability of this District Centre and would provide much needed housing to an area which currently is in need of provision. He has accorded significant weight to these benefits in his consideration of the appeals. The Secretary of State concludes therefore that the site is a suitable one for housing and retail development and would comply with the aims of PPG3 and PPS6.”

At paragraph 12 of his decision letter he recorded that Sainsburys had submitted an alternative proposal for the site. He referred to the reasons given in paragraph 13.7 of the inspector’s report (see paragraph 14 of this judgment) and said:

“… 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 this site.”

The Secretary of State went on to agree with the inspector’s conclusions about 283 Edgware Road and about design issues concerning the tower and building E2 in each option. But he disagreed on certain other design issues and, because the way in which he dealt with these issues is at the heart of this case, it is necessary to set out in some detail what the decision letter states in this respect.

So far as Building E1 and its impact on the Conservation Area and listed building were concerned, the Secretary of State said at paragraph 23 that he

“… 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 in both proposals. 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.”

He dealt with the overall design concept but stated that he did not share the inspector’s misgivings about the concept. He spelt out in some detail his views on this and the design of the mansion blocks on the Edgware Road frontage and within the site and on other aspects of the design. His conclusion was that:

“On balance … 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 …”

In his “Overall Conclusion” the Secretary of State said this in the relevant paragraphs of the decision letter:

“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 situated 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 proposal might produce a better urban design solution.

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 DES1. However, it does not fully comply with local plan policies DES 9 and DES 10 and he accepts it will have an adverse impact 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.”

Consequently he granted not only the conservation area consents recommended by the inspector but also planning permission for Option A, while refusing planning permission for Option B.

The challenge by Sainsburys to the grant of permission for Option A was brought under section 288(1)(b) of the 1990 Act, which provides, insofar as material for present purposes, that if a person is aggrieved by an action on the part of the Secretary of State (such as a decision by him on a planning appeal) and wishes

“to question the validity of that action, on the grounds –

(i)

that the action is not within the powers of this Act, or

(ii)

that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section.”

It is well-established that section 288(1)(b)(i) is broadly speaking a provision enabling the normal grounds for judicial review to be relied on, often described as the Wednesbury grounds of challenge: see Ashbridge Investments Limited v. Minister of Housing and Local Government [1965] 1 WLR 1320; Seddon Properties Limited v. Secretary of State for the Environment [1978] JPL 835; R (Alconbury Developments Ltd) v. Secretary of State for the Environment [2003]2 AC 295.

Much of Crane J’s judgment was devoted to the significance of the exclusion of 283 Edgware Road from the appeal site, a matter which is no longer live in this court. But he then went on to deal with the design issues and the policies applicable to those issues. He rejected Sainsburys’ argument that the absence of any reference to PPS1 in the decision meant that the Secretary of State had failed to take that policy document into account, saying

“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.”

He also concluded that the decision-letter was not flawed in the way in which it dealt with overall design. On this, the judge said:

“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.”

His concerns related to Building E1 and how this and the Sainsburys’ proposals for that part of the site were dealt with in the decision-letter. As this was the basis on which he quashed the decision, it is necessary to take this in some detail.

The judge’s reasoning on this comes in two different places in his judgment. He began by expressing his approval of what the inspector had said at paragraph 13.7 of his report about the relevance of the application submitted to Westminster by Sainsburys (see paragraph 14, ante). Crane J then commented as follows:

“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.”

After quoting what the inspector had said about Building E1 and how Sainsburys’ proposals contained the basis for a more successful approach, the judge criticised the Secretary of State’s comments on the relevance of the Sainsburys’ application. Those comments are set out at paragraph 19 of this judgment. Crane J at paragraph 62 of his judgment said that the Secretary of State had inaccurately represented the inspector’s views about the alternative proposal, since the inspector, in the light of his criticisms of the design

“did regard the alternative as of some relevance.”

The judge returned to this point in the crucial part of his judgment, paragraph 73, the part which led him to quash the decision. He said this

“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.”

So he allowed the section 288 application by Sainsburys and quashed the grant of planning permission to West End Green.

There are in essence three issues which arise in these appeals. The first two derive from the judge’s reasoning which led him to quash the Secretary of State’s decision, while the third arises from the respondent’s notice. I would summarise these issues as follows:

The judge was, as I have indicated earlier, critical of the Secretary of State’s summary of the inspector’s views about the relevance of the Sainsburys’ alternative, because the inspector had regarded the alternative as being “of some relevance.” That was a reference to the passage in the report of the inspector where he had said that the decision did not involve a choice between the appeal scheme and the Sainsburys’ alternative; that if either appeal scheme was acceptable on its own merits, a comparison with the alternative was unnecessary; but if there were concerns about aspects of the design of the appeal scheme, then the Sainsburys’ alternative

“could be helpful if it showed that a different and better solution were possible.” (paragraph 37)

Miss Lieven, QC., for the Secretary of State points out that the Secretary of State never stated in his decision-letter that the Sainsburys’ alternative was irrelevant. What paragraph 12 of his decision-letter says is that he agreed with the inspector that the Sainsburys’ application had “little relevance”, because the appeals had to be decided on their own merits. Insofar as that is a judgment by the Secretary of State as to the weight to be attached to the Sainsburys’ alternative, it discloses no error of law, since weight is, subject to any issue of perversity, a matter for the decision-maker, as many authorities establish. Insofar as it seeks to summarise the inspector’s views, Miss Lieven contends that it is not inaccurate, given that the inspector had in effect merely said that in certain circumstances the Sainsburys’ alternatives could be helpful if it showed a better solution were possible.

Mr Hicks, QC., for Sainsburys emphasises that this was all that his clients had suggested at the inquiry, as paragraph 8.25 of the report shows. Their alternative might help, they had said, to illustrate that there were other more appropriate approaches to some aspects of the design work.

This aspect of the case seems to me to be of limited significance. It is true that Crane J appears to suggest that the Secretary of State had regarded the Sainsburys’ alternative as being irrelevant, in contrast to the inspector who had seen it as of “some” relevance: see paragraph 62 of his judgment, summarised at paragraph 26 ante. If so, I accept Miss Lieven’s contention that the judge’s criticism was in error, since the Secretary of State also saw the alternative as having some, albeit little, relevance. But in any event it is not submitted by Sainsburys that the Secretary of State was unaware that a better design for that part of the scheme where building E1 was shown could be achieved. Indeed, given that the Secretary of State accepted that, as designed, building E1 would have some adverse effect on the conservation area and the setting of listed buildings, plus the fact that there were no obvious constraints on producing “a more sensitive architectural composition” on that part of the site, it must have been obvious that a different design with a less adverse effect could be achieved there. It did not require a planning application by Sainsburys to demonstrate that.

There is, however, a wider issue which arises here. Miss Lieven emphasises that the Secretary of State at paragraph 12 found that the Option A scheme was acceptable. He did so, she argues, even though he had accepted that in design terms it had some deficiencies, particularly in respect of building E1. That is evident from paragraph 33 of his decision, where he accepts that there would be “some adverse impact” on the conservation area. It is clear that he regarded it as acceptable because those deficiencies were outweighed by the benefits which the scheme would achieve, especially in terms of a long-awaited regeneration of this site as a whole. This, to adopt the phrase used by Mr Elvin, QC., for West End Green, was a classic planning judgment, balancing the pros and cons of a proposed development. In those circumstances, was the Secretary of State required to refuse permission because an alternative design approach could produce a better scheme?

The Secretary of State contends that he was not so required. Miss Lieven submits that, once a proposal is judged acceptable in planning terms, taking all relevant considerations into account, that is the end of the matter, even if an even more acceptable proposal could be achieved. She draws attention to and relies on a passage in the judgment of Simon Brown J. (as he then was) in Trusthouse Forte Hotels Limited v. Secretary of State for the Environment [1986] 53 P and C.R. 293 at 299. That was a case concerning the relevance of alternative sites, where certain principles were set out, as derived from the case-law. The first was as follows:

“(1)

Land (irrespective of whether it is owned by the applicant for planning permission) may be developed in any way which is acceptable for planning purposes. The fact that other land exists (whether or not in the applicant’s ownership) upon which the development would be yet more acceptable for planning purposes would not justify the refusal of planning permission upon the application site.”

The same approach, submits Miss Lieven, with the support of Mr Elvin, applies to the relevance of alternative schemes for the same site. Once a development is found, on its own merits, to be acceptable, it matters not that a different design of development on the same site might be possible which would render the development of that site yet more acceptable.

Sainsburys contend that what is significant here is that the decision-letter never suggests that the benefits of redevelopment could not be achieved in a way which avoided or at least lessened the harm to the conservation area and the setting of the limited buildings. Mr Hicks stresses that the Secretary of State’s own policies as set out in Planning Policy Guidance note 15 (PPG 15) requires a “high priority” to be given to preserving or enhancing the character or appearance of a conservation area, and that if a proposal conflicts with that objective there will be a strong presumption against the grant of planning permission (paragraph 4.19). He also draws attention to the fact that the Secretary of State accepted that Building B, as well as Building E1, would cause harm to the conservation area. When one puts such harm together with the prospect that the redevelopment benefits could be achieved by a better-designed scheme, the logical conclusion has to be that permission for Option A should have been refused, leaving the developer to come back with an improved scheme.

I do not accept that that is the logical outcome, and certainly not the only logical outcome. Like so many aspects of planning judgments, it is a matter of degree. There may well be cases where the degree of harm which would result from a proposal is such that it is decided that the benefits which the proposal would bring must await a new scheme with an improved design. The decision-maker may properly and lawfully reach that conclusion in appropriate cases. Conversely, there may also be cases where the degree of harm is not judged to be so great that it warrants rejecting the proposal and sending the developer away, on the basis that he will come up with an improved scheme. There may well be disadvantages from the public standpoint in terms of delay and uncertainty in rejection of a current proposal. Certainly there is nothing inherently illogical or unlawful in the decision-maker concluding that a scheme is acceptable, even though a yet better scheme could be devised. Into which of these two categories a proposed development falls is a matter of planning judgment for the decision-maker, only to be impugned on the usual Wednesbury grounds.

There is certainly no legal principle of which I am aware that permission must be refused if a different scheme could achieve similar benefits with a lesser degree of harmful effects. In such a situation, permission may be refused but it does not have to be refused. The decision-maker is entitled to weigh the benefits and the disbenefits of the proposal before him and to decide (if that is his planning judgment) that the proposal is acceptable, even if an improved balance of benefits and disbenefits could be achieved by a different scheme. As Miss Lieven pointed out and as is obvious, certainly to anyone with experience of the planning system, a refusal of permission will inevitably lead to delay and may mean considerable uncertainty about what results. A fresh application to the local planning authority would be required, by which time circumstances may have changed. The economics of redevelopment may be different, the attitude of the local planning authority may not be exactly the same as before, and so on. Fresh planning judgments would have to be made on a new scheme. Inevitably the benefits of redevelopment would be later in coming. I therefore reject any proposition that the Secretary of State could logically only decide to refuse permission.

At times Mr Hicks came close to arguing that the Secretary of State’s decision that Option A was acceptable in planning terms was perverse, because of the importance attaching to the protection of conservation areas. Such an argument cannot succeed. While the objective of protecting conservation areas is undeniably given a high priority in national planning policies, the weight to be attached in any given case to the effect of a proposal on a conservation area must depend also on the gravity of the adverse effect. The impact may be great or it may be small. That is a matter of judgment, and indeed an inherently subjective judgment when the impact derives from a design feature. In the present case there was clearly room for more than one view on the design issues. The local planning authority, Westminster, raised no objection on design grounds to the effect of Option A on the conservation area or the setting of listed buildings. Nor, as Miss Lieven reminded us, did the Commission for Architecture and the Built Environment (CABE). Consequently, how significant the impact of Building E1, and indeed Building B, would be on these interests was very much a matter for the Secretary of State’s judgment.

As Lord Hoffmann said in Tesco Stores Limited v. Secretary of State for the Environment [1995] 1 WLR 759 at 780:

“The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.

This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”

At the same time, the Secretary of State patently regarded the redevelopment of this brownfield site as of importance. He describes it at paragraph 9 of his decision-letter as offering “significant regeneration benefits.” Mr Hicks submitted that the Secretary of State cannot have been concerned about delaying the achievement of those benefits, because his own decision only emerged ten months after the inspector’s report was submitted. That is not a sound argument. Merely because it takes time to make a planning decision on appeals involving a number of complex issues does not mean that the decision-maker does not regard the need for regeneration as a pressing one.

On the first issue, therefore, I regard the Secretary of State as having adopted a lawful approach to the topic of an alternative scheme with a better design. To a degree Sainsburys appear to acknowledge that the Secretary of State’s decision was one properly open to him, since in oral argument Mr Hicks put particular emphasis not on this issue but on whether the Secretary of State had adequately explained his decision. I turn therefore to that topic.

The judge referred to this aspect in the final sentence of his decisive paragraph, when he observed that

“at least the reasoning of the Secretary of State did not explain why those disadvantages [of Option A] had to be accepted.” (paragraph 73)

Both appellants challenge that proposition. The Secretary of State relies upon the leading case of South Bucks District Council v. Porter (No. 2) [2004] 1 WLR 1953, where Lord Brown of Eaton–under–Heywood summarised the principles applicable to this well-worn topic. At paragraph 36 he said:

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

Miss Lieven emphasises the propositions that the degree of particularity required depends entirely on the nature of the issues and that decision-letters are addressed to parties well aware of the issues involved and the arguments advanced. She also refers us to a passage from Clarke Homes Ltd v. Secretary of State for the Environment [1993] 66 P and C R 263, cited with approval in the South Bucks case. In Clarke, another case involving a reasons challenge, Sir Thomas Bingham, M.R., observed at page 271 – 272:

“I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.”

It is submitted on behalf of the Secretary of State that his reasoning is sufficiently clear. He regarded the

“benefits of the scheme in the form of regeneration of a brownfield site and the provision of affordable housing.”

as outweighing such concerns as he had about Option A: see paragraph 35 of the decision-letter. Miss Lieven acknowledges that there is no express reference to the delay in regeneration that would result from a refusal of permission or the uncertainties which would then result, but she submits that the parties would have been well aware of that. It was unnecessary for the Secretary of State to spell it out. Sainsburys would have known full well that any different design would require a fresh planning application to be submitted to the local planning authority, with all the inevitably attendant drawbacks. West End Green adopts the same argument.

Sainsburys supports the judge’s position on this. Mr Hicks argues that the decision fails to explain why the acknowledged harm to the conservation area was seen as acceptable. Any redevelopment scheme would achieve the benefits referred to by the Secretary of State, and a re-designed scheme could avoid or lessen the harm. Therefore there is a gap in the Secretary of State’s reasoning. The decision leaves a substantial doubt as to why it resulted in a grant of permission for Option A.

I disagree. The principal parties involved in the planning appeals were all ones familiar with the planning system and with the fact that the regeneration of this site had been seen as desirable by the planning authorities for many years. Despite that, nothing had been achieved. West End Green had expressly argued at the planning inquiry that the need for regeneration was urgent. It is, after all, a largely derelict site in a prominent location in Central London. I accept Miss Lieven’s argument that all these parties, including Sainsburys, would have been well aware that any refusal of planning permission on design grounds would have led to delay and uncertainty. That did not need spelling out in the decision-letter. It was obvious and must have been implicit in the Secretary of State’s reasoning. He must have taken the view that such adverse impact of Option A as there was did not warrant the disadvantages inherent in a refusal of permission. It seems to me, that this is a case which comes into Sir Thomas Bingham’s category of “forensic doubt” as to why the Secretary of State decided as he did, not into that of “genuine doubt.”

For my part, therefore, I do not share Crane J’s view that the decision-letter was legally flawed in either of the respects he identified. There remain to be considered the issues concerning policy raised by Sainsburys in its respondent’s notice.

Mr Hicks advances very much the same points about planning policies as he did without success in the court below. They are really two in number. First, he emphasises that the decision-letter nowhere refers to the national policy on design issues set out in PPS 1. I have cited the most relevant parts of that guidance at paragraph 8 of this judgment. They stress the need for high quality design in new developments. Mr Hicks observes that the decision-letter refers to some national policies, but not to PPS 1. He submits, in effect, that the Secretary of State failed to take this aspect of national policy guidance into account.

Like Crane J, I do not accept that the mere absence of an express reference to PPS 1 means that the Secretary of State failed to take it into account. It has long been established that there is no automatic assumption of that kind. But in the present case, there was even less need than usual to make such an express reference to his national policy guidance. As the judge pointed out at paragraph 71, the most relevant parts of PPS 1 were reflected in the replacement UDP, with which the Secretary of State did explicitly deal. In the course of argument before us Mr Hicks was asked what, if anything, PPS 1 added to the effect of UDP policy DES 1. His response was that PPS 1 included an express reference to “taking opportunities” for improving the character and quality of an area through high quality design. This does not seem to me to differ materially from policy DES 1 in the replacement UDP, the terms of which I have set out in paragraph 8. That both helps to explain the omission of any express reference by the Secretary of State to PPS 1, since there was no need to refer to another policy to the same effect, and to indicate that no significance can in any event be attached to such an omission.

The other policy point concerns policy DES 1. It is submitted on behalf of Sainsburys that the Secretary of State must have misapplied this policy. Mr Hicks contends that the Secretary of State cannot have thought that the design of Option A was in accord with DES 1, since he accepted that the design of Building E1 would have an adverse effect on the conservation area, as would Building B. Those buildings cannot have been of the highest quality of design. Every element within the scheme has to be of the highest quality: it is wrong to do as the Secretary of State appears to have done and to apply policy DES 1 to the scheme as a whole. If one element in it is deficient, then there is a breach of policy, and the Secretary of State was wrong to conclude that there was compliance with this policy. He must have misapplied it.

In dealing with this submission it is necessary to bear in mind the well-established principles about the respective roles of the courts and the local planning authority/Secretary of State on matters of policy and the interpretation of policy. As this court said in R v. Derbyshire County Council, ex parte Woods [1997] JPL 958 at 967 – 968:

“If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law …

If in all the circumstances the wording of the relevant policy document is properly capable of more than one meaning, and the planning authority adopts and applies a meaning which it is capable as a matter of law of bearing, then it will not have gone wrong in law.”

The court there cited with approval a passage from the judgment of Auld J in Northavon District Council v. Secretary of State for the Environment [1993] JPL 761 at 763:

“The test to be applied by the court was that it should only interfere where the decision-maker’s interpretation was perverse in that he has given to the words in their context a meaning that they could not possibly have or restricted their meaning in a way that the breadth of their terms could not possibly justify.”

There is other authority to similar effect, for example Virgin Cinema Properties Ltd v. Secretary of State for the Environment [1998] PLCR 1.

Policy DES in the Replacement UDP requires “development” to be of the highest standards of urban design. If and insofar as the Secretary of State looked at this proposed development as a whole when applying policy DES 1, it seems to me that that was an approach he was entitled to adopt to the interpretation of the policy. His approach was not perverse. But in any event, the policy has, as Miss Lieven argued below, an aspirational quality to it when it refers to “highest standards” of design. I agree with the judge below (paragraph 72) that such a phrase does not mean that because some improvement could be made to the design of an aspect of the scheme, the scheme therefore breaches the policy. The policy, in Crane J’s words,

“can be met by a range of designs that will not necessarily achieve complete success.”

Determining matters which relate to the quality of the design of buildings is inevitably a process involving a value judgment. The Secretary of State made his judgment, to the effect that Option A met the terms of DES 1. That seems to me to have been a conclusion properly open to him and far from perverse. I would reject the policy arguments raised in the respondent’s notice.

For the reasons given above, I for my part would allow these appeals. There is no legal flaw in the Secretary of State’s decision.

I agree.

I also agree.