He looks at all three in turn as if they are distinct bases for a claim (see also [3] (iii)-(v), [4], and [40], [42], [43]).

In [40] he says that he has already discussed why the enrichment would be unjust. This seems to be a reference to [3](iii):

So A has been enriched at the expense of B and, since it was A's repudiation of the oral agreement in principle that frustrated the basis upon which B had been relying, perhaps unjustly enriched.

which is pretty vague, but seems to be the only place before [40] where he has addressed the question. It looks like failure of basis reasoning to me.

I find the reasoning on quantum in [41] — the locksmith and the key — a little bit unsatisfying, with all of the burden of the argument being borne by the words “But surely”. Still those of us who believe that unjust enrichment is about defective transfers of wealth can take some solace from it I think.

Lionel

On 11/09/08 4:36 AM, "Gerhard Dannemann" wrote:

Having now finally read the case, I wonder whether the following is another exercise in fence-sitting, or a conscious or unconscious shift towards a no basis approach.

Lord Scott begins his treatment of "Unjust enrichment" in this case with the following words:

40. There is no doubt but that the value of the property will have been increased by the grant of planning permission and that the appellant has, accordingly, been enriched by the grant of the permission for which it has had to pay nothing. Since the planning permission was obtained at the expense of Mr Cobbe it is very easy to conclude that the appellant has been enriched at his expense and, in the circumstances that I need not again rehearse, unjustly enriched. So, in principle, he is entitled to a common law remedy for unjust enrichment.

Failed consideration is mentioned in para 43, under a separate heading "Consideration which has wholly failed", but not really as an additional requirement for an unjust enrichment claim - as this comes after establishing the quantum of the enrichment which Lord Scott describes as recoverable, this looks more to me like excluding a defence (total failure of consideration).

Any other views or intelligence on this matter?