Planning appeal – Permission granted for mixed-use development on site partly within conservation area – Relevance of alternative development scheme put forward by respondent – Whether secretary of state obliged to refuse permission for acceptable scheme on ground that alternative scheme better in design terms – Appeal allowed
The first appellant secretary of state granted planning permission, on an appeal by the second appellant, for a mixed-use development on a site in west London that came partly within the Paddington Green conservation area. The development comprised a supermarket and residential and holiday units, with associated car parking and landscaping. The decision went against the recommendation of the inspector, which was made following an inquiry, that permission should be refused in respect of both of the alternative schemes that had been put forward by W. Instead, the secretary of state found that one of the schemes, option A, was acceptable in planning terms. In reaching his decision, he referred to policy DES 1 in both the adopted and emerging unitary development plans for the City of Westminster, which required the “highest standards” of design for new developments. He found that option A was, overall, an acceptable scheme for the site, since its benefits were sufficient to outweigh the adverse effects that certain aspects of the design would have on the conservation area.
The respondent had appeared at the inquiry as an objector, and had advocated a different scheme that was the subject of a planning application. Dealing with the respondent’s scheme, the secretary of state concluded that it was of little relevance because the appeal had to be decided upon its own merits and he had found option A to be acceptable.
The secretary of state’s decision was subsequently quashed on an application by the respondent under section 288 of the Town and Country Planning Act 1990. On appeal by the appellants, the central issue was whether, where the secretary of state had found one scheme to be acceptable, he was none the less obliged to refuse permission if an alternative design would produce a better scheme. The respondent also submitted that the secretary of state had misapplied policy DES 1.
Held: The appeal was allowed.
There was no legal principle under which permission for a development must be refused if a different scheme might achieve similar benefits with a lesser degree of harm. There might be cases in which the degree of harm would be such that it could validly be decided that the benefits that the proposal would bring should await a new scheme with an improved design. However, there was nothing inherently unlawful or illogical in the decision maker concluding that a scheme was acceptable even though a better scheme could be devised. The decision regarding into which category a proposed development fell was a matter of planning judgment for the decision maker, which could be impugned only on Wednesbury grounds. The secretary of state had adopted a lawful approach and had given adequate reasons for his decision. He had not misapplied any of the relevant policies. He had been entitled to look at the scheme as a whole when applying policy DES 1; it was not necessary to show that every single element of the scheme was of the “highest standard”. Further, policy DES 1 was of an aspirational nature and the reference to “the highest standards” did not mean that a scheme breached the policy merely because some improvement could be made to the design.
Nathalie Lieven QC and Daniel Kolinsky (instructed by the Treasury Solicitor) appeared for the first appellant; David Elvin QC and Reuben Taylor (instructed by Berwin Leighton Paisner) appeared for the second appellant; William Hicks QC and Stephen Morgan (instructed by CMS Cameron McKenna LLP) appeared for the respondent.
Sally Dobson, barrister
