The Court of Appeal at  EWCA Civ 1083, reversing Crane J., restored the Secretary of State’s decision to grant planning permission to West End Green Limited for an important regeneration site between the Edgware Road and Paddington Green.
The issue of alternatives was considered in the context that Sainsburys had argued that the proposals could not meet the highest standards of design required by PPS 1 and the Westminster UDP if there were unsatisfactory elements of the proposals. At inquiry, it had advanced a scheme which it considered better met the requirements of a high quality design. The Inspector had recommended refusal but the Secretary of State had granted permission on the basis that the scheme as a whole met the necessary high standard despite the existence of some unsatisfactory elements.
Keene L.J. (giving the judgment of the Court) rejected this contention. He held at paras. 37 & 38:
“37. … 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.
38. 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.”
The Court also rejected criticisms of the reasoning and the specific application of the design policy.
The issue of ransom, which arose at first instance, did not arise in the Court of Appeal since the other claimant/appellant did not pursue an application for permission to appeal.
Dan Kolinsky represented the Secretary of State/appellant.
David Elvin QC and Reuben Taylor represented West End Green Ltd., the developer/appellant.
William Hicks QC and Stephen Morgan represented Sainsburys.