MR Dean & Sons (Edgware) Ltd & Anor v West End Green (Properties) Ltd & Anor

In a challenge under section 288 of the Town and Country Planning Act 1990, planning judgment remains primarily for the decision-maker. Planning powers need not preserve or maximise a private ransom value, and the existence of such value does not require compulsory purchase powers or a Grampian condition. A financial obligation under section 106 must be sufficiently related to the proposed development to constitute a material consideration; it cannot simply purchase planning permission.

An alternative scheme is generally relevant only in exceptional circumstances, particularly where the proposed development has conspicuous adverse effects or demonstrates that a better solution is available. The Secretary of State’s decision was lawful as to the landholding and overall design issues, but his inaccurate treatment of an alternative design and failure to explain why identified design disadvantages had to be accepted rendered the decision unlawful in that respect.

Two conjoined applications under section 288 of the Town and Country Planning Act 1990 challenged the First Secretary of State’s decision granting planning permission on appeal for a substantial mixed-use development on Edgware Road.

Dean owned adjoining premises, 283 Edgware Road, and argued that the decision unlawfully removed or diminished its ransom value, engaged its property rights, and should have required acquisition of the premises. Sainsbury, which had an option to purchase 283, challenged the treatment of the premises and the design of the development, including its effect on Paddington Green, listed buildings and the relevant development plan policies.

The central questions were whether the Secretary of State had acted unlawfully in addressing the ransom-value issue and whether his reasons sufficiently explained the acceptance of the design, particularly Building E1 and its vicinity.

1. Outcome. Dean’s application was dismissed. Sainsbury’s application succeeded in relation to Building E1 and its vicinity. The parties were invited to agree the consequential orders.

2. The court applied the limited scope of a section 288 challenge. Matters of planning judgment fall within the exclusive province of the planning decision-maker. The Secretary of State was entitled to predict that 283 was likely to be acquired and demolished within the foreseeable future and to conclude that its temporary retention could be tolerated. A Grampian condition was therefore unnecessary.

3. A ransom value is relevant to land valuation, but planning decisions need not preserve or maximise it. Its existence did not require compulsory purchase powers to be used. Nor did it require a condition preventing development. A decision affecting property value did not, on the material before the court, interfere with peaceful enjoyment for the purposes of Article 1 of Protocol 1 to the ECHR.

4. The section 106 obligation was capable of being a material consideration under section 70(2) of the Town and Country Planning Act 1990 because it was sufficiently related to the proposed development. The statutory test was not necessity. Developers could not simply buy planning permission.

5. The Secretary of State was entitled to regard the overall design concept as acceptable and consistent with Replacement UDP Policy DES 1. The highest standards of design did not require complete architectural success in every respect. The issue involved planning judgment, and adequate reasons were given.

6. An alternative scheme is ordinarily relevant only in exceptional circumstances. It may assist where the proposed development has significant adverse effects or where it demonstrates that a better solution is realistically available. The Secretary of State inaccurately represented the Inspector’s view of the Sainsbury alternative. Having accepted criticisms of Building E1 and its surroundings, he failed to explain why the wider benefits required those disadvantages to be accepted. That reasoning error made the decision unlawful on that issue.