The Cheesecake Shop Ltd (Or Masuka the Cheesecake Shop (UK) Ltd) v Secretary of State for Communities & Local Government & Anor

A planning decision may take account of financial consequences where they have a sufficiently close connection with the use and development of land. But an alleged increase in the cost of a future comprehensive redevelopment scheme must be supported by evidence. A bare assertion that permission would increase property value and acquisition costs is insufficient, particularly where redevelopment is remote and the statutory compensation position may produce no increase. A court will rarely interfere with the weight given to a material planning consideration. It may nevertheless quash a decision where an important conclusion is unsupported by evidence. The planning decision and the related costs decision were therefore quashed.

The claimant challenged an Inspector’s dismissal of its planning appeal under section 288 of the Town and Country Planning Act 1990. The appeal concerned permission for a two-storey retail and office extension within the Waterside Regeneration Zone in Nottingham. The Inspector concluded that the proposal would prejudice comprehensive redevelopment because it would increase the value and acquisition cost of the claimant’s premises.

The claimant also sought judicial review of the Inspector’s refusal to award costs. The central issues were whether the alleged additional redevelopment costs were a material planning consideration, whether the Inspector had evidence sufficient to support the finding of prejudice, and whether the Inspector had given inadequate weight to employment benefits and policy E4.

1. Ground 1. Financial consequences can constitute material planning considerations where they relate sufficiently closely to the use and development of land. The approach in Alnwick District Council v Secretary of State for the Environment, Transport and the Regions [2000] 79 P & C.R. 130 supported that distinction. In this case, the alleged additional acquisition costs were linked to the proposed development and the wider redevelopment scheme. The Inspector was therefore entitled in principle to treat them as material.
2. Ground 2. The Inspector nevertheless lacked an adequate evidential basis for concluding that permission would increase the cost of the comprehensive scheme so as to prejudice it. The redevelopment was expected to occur many years later. The local authority had made no meaningful comparison of likely acquisition or demolition costs. The existing building would in any event have required acquisition and demolition, and the possible availability of a certificate under section 17 of the Land Compensation Act 1961 meant that an increase in compensation could not safely be assumed.
3. The Inspector’s unsupported conclusion concerned an important part of the decision and was material to the outcome. Applying the principle illustrated by Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320, the planning decision had to be quashed.
4. Grounds 3 and 4. The complaint was not procedural unfairness. The Inspector had been entitled to decide what weight to give the employment benefits and policy E4. It is rare for a court to quash a planning decision merely because insufficient weight was given to a material consideration. Those matters nevertheless supported granting relief because removal of the unsupported negative consideration created a reasonable possibility of a different outcome.
5. The Inspector’s planning decision was quashed and the appeal was remitted for reconsideration. The costs decision was also quashed. The defendants were ordered to pay the claimant’s costs in both proceedings, subject to detailed assessment if not agreed.

This was a first-instance decision in two proceedings. The planning decision was challenged under section 288 of the Town and Country Planning Act 1990, and the separate costs decision was challenged by judicial review. Both Inspector’s decisions were quashed.