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

A planning authority is not required to refuse permission merely because an alternative scheme could produce similar benefits with less harm. It must assess the proposal before it on its own merits and may balance its benefits, harm, delay and uncertainty. The weight given to material considerations, including effects on a conservation area, is ordinarily a matter of planning judgment, subject only to public-law review.

Reasons are sufficient if they enable informed parties to understand the decision on the main controversial issues. A decision letter need not spell out matters that are obvious from the planning context. Planning policy may properly be applied to a development as a whole where its language permits that approach. An omission to cite national guidance does not establish that it was ignored where the relevant principles were reflected in the policy expressly considered.

The First Secretary of State granted West End Green planning permission for Option A, a mixed retail, housing and holiday-let redevelopment of a brownfield site near Paddington Green. Although the inspector had recommended refusal, the Secretary of State considered the regeneration and housing benefits sufficient to outweigh adverse effects on the conservation area and listed buildings, principally arising from Building E1.

Sainsbury’s, which promoted an alternative design, challenged the permission under Town and Country Planning Act 1990, section 288. Crane J quashed the permission on Sainsbury’s application, holding that the Secretary of State had not adequately addressed the relevance of the alternative or explained why the design harm had to be accepted. The Secretary of State and West End Green appealed. The central issues were whether a better possible design required refusal, whether the reasons were adequate, and whether design policies, including PPS 1 and UDP policy DES 1, had been lawfully applied.

1. Appeals allowed. The court held that the Secretary of State’s grant of permission for Option A contained no error of law. The judgment of Crane J quashing the permission could not stand.

2. A proposed development must be determined on its own planning merits. The possible availability of an alternative scheme with a better design does not compel refusal of the scheme before the decision-maker. In an appropriate case the harm may justify refusal pending an improved scheme. Equally, the decision-maker may conclude that the harm is insufficient to justify the delay and uncertainty of requiring a new application. That evaluative choice is a planning judgment, reviewable only on ordinary Wednesbury grounds. The court applied the approach in Trusthouse Forte Hotels Ltd v Secretary of State for the Environment [1986] 53 P and C.R. 293.

3. The Secretary of State had lawfully weighed the acknowledged adverse effects on the conservation area and listed buildings against substantial regeneration and housing benefits. The seriousness of the design impact, and the weight to give it, were matters for him. The court could not substitute its assessment merely because an alternative design might lessen the harm. This accorded with Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759.

4. The decision letter gave adequate reasons. Read straightforwardly by parties familiar with the inquiry and planning system, it made clear that the Secretary of State regarded the harm as insufficient to outweigh the benefits of immediate regeneration. It did not need expressly to identify the delay and uncertainty which refusal would cause. Any uncertainty advanced by Sainsbury’s was forensic rather than genuine, applying South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953.

5. The absence of an express reference to PPS 1 did not show that it had been overlooked, because its relevant design principles were reflected in the replacement UDP policy considered. The Secretary of State could also construe DES 1 as applying to the development overall. Its reference to the highest standards of design was aspirational and did not mean that a scheme failed merely because some design improvement was possible.

• Court of Appeal (Civil Division) — Allowed the Secretary of State’s and West End Green’s appeals and held that the grant of planning permission for Option A was not legally flawed: [2007] EWCA Civ 1083.
• High Court, Queen’s Bench Division, Administrative Court — Crane J allowed Sainsbury’s application under section 288 of the Town and Country Planning Act 1990 and quashed the planning permission for Option A. He dismissed Dean’s separate application.
• Secretary of State — Following a public inquiry, granted planning permission for Option A on 10 October 2005, refused planning permission for Option B, and granted conservation area consent for both options.