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Cite as: [2012] EWHC 977 (Admin)

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Neutral Citation Number: [2012] EWHC 977 (Admin)
Case No: CO/1082/2012

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
17 April 2012

B e f o r e :

MR JUSTICE LINDBLOM
____________________

Between:
The Manydown Company Limited

Claimant
- and -


Basingstoke and Deane Borough Council
Defendant

____________________

Gregory Jones QC and Richard Honey (instructed by Dickinson Dees LLP) for the Claimant
Rhodri Price Lewis QC (instructed by the Solicitor to Basingstoke and Deane Borough Council) for the Defendant
Hearing dates: 13, 14 and 15 March 2012

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Lindblom:

    Introduction

  1. In this claim for judicial review the claimant, The Manydown Company Limited, challenges two decisions of Basingstoke and Deane Borough Council ("the Council"): first, the Council's refusal, on 15 December 2011, to take the course proposed in a motion – motion 12(4) – calling for it to reconsider its position on the development of a site that it owns, which comprises about 800 hectares of farmland at Manydown to the west of Basingstoke; and second, the decision of the Council's Cabinet on 23 January 2012, affirming its selection of sites to propose for allocation in its pre-submission draft Core Strategy, and approving that document for consultation, having concluded that the Manydown site was not available.
  2. The matter came before me at a "rolled-up" hearing of both the application for permission and, if permission were granted, the claim itself. The hearing began on 13 March 2012. On 9 February 2012 Ouseley J had refused a stay of the Council's consultation process, which was due to begin the following day. The consultation process was to run until 23 March 2012. Shortly after that the "purdah" period preceding the local government elections on 3 May 2012 would begin. It was envisaged that after the elections the Council would receive a report on the consultation, that the decisions made in the light of that report would be embodied in the submission version of the Core Strategy, which was expected to emerge in July 2012, and that the examination of the Core Strategy by an Inspector would be held in the autumn of 2012. In paragraph 7 of his judgment refusing a stay, [2012] EWHC 593 (Admin), Ouseley J said this:
  3. "There is some scope for disadvantage to the claimant if a stay is not granted, but I do not regard the difficulty of arguing for the inclusion of this site [in] the consultation process, or, at a later stage, if the current decision about it is unlawful, as being significantly greater than it would be if a stay is granted and the claimant has to put forward its argument at a later stage. Clearly the consultation document has reached a very advanced stage and is ready probably for distribution. In so far as one is contemplating an institutional reluctance to reconsider, that is present whatever happens and what is required is a decision on the lawfulness or unlawfulness of the decision and how that should be remedied."

    Background

  4. The claimant is the owner of the freehold reversion of the Manydown site. The land is held by the Council on a 999 year lease, running from February 1996. Effectively, therefore, the Council is the landowner.
  5. The Council acquired the Manydown site under powers in the Town and Country Planning Act 1990 ("the 1990 Act"). The purpose of its acquisition of the land was to promote on it a high quality, comprehensive development of housing. The claimant is entitled to receive from the Council half the proceeds of development, provided that development takes place before 2050, but not if it takes place after that.
  6. The Council's Core Strategy, once adopted, will be the principal component of the local development framework ("the LDF") for the Council's area. The claimant says that unless the Manydown site is allocated for development in the Core Strategy planning permission for its development for housing will not be granted in the foreseeable future.
  7. In 2005 the Council unsuccessfully proposed the Manydown site for development in its local plan process. But after a change of administration in 2006 the Council decided to suspend its involvement in the active promotion the site for development. This remains the Council's position. As landowner it has decided that it will not review this position until after the Core Strategy has been formally adopted. And as local planning authority it has also decided that the Manydown site is not available for development, and therefore that the site should not be identified for development in the Core Strategy. The claimant says that the Council has relied on its decisions in 2006 and 2009 as a basis for preventing the inclusion of the site in the Core Strategy, that its refusal to reconsider those decisions betrays a determination not merely to hold off promoting the development of the land but actively to prevent itself from including the land in the Core Strategy, binding itself instead to a position that thwarts the development of the site. This, says the claimant, is plainly unlawful. By refusing even to reconsider its position the Council has prevented itself from considering circumstances as they now are, and has shut out the possibility of the Manydown land being allocated for development to fulfil the purpose for which it was acquired. This, says the claimant, is directly contrary to the objectives of the relevant statutory power. None of that, however, is conceded by the Council. It says it has acted lawfully throughout, in accordance with its statutory duties and without exceeding its statutory powers.
  8. The issues

  9. The main issues for the court to decide are these:
  10. (1) Is the claim, in whole or in part, excluded from the court's jurisdiction in a claim for judicial review by section 113 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act")? ("Issue (1) – Jurisdiction");

    (2) Were the decisions taken by the Council on 15 December 2011 to reject the course of action proposed in motion 12(4) and the decision of the Council's Cabinet on 23 January 2012 to exclude the Manydown site from the consultation on the pre-submission Core Strategy lawful? ("Issue (2) – Lawfulness"); and

    (3) If either or both of the decisions impugned is unlawful, what relief, if any, should the court grant? ("Issue (3) – Remedy").

    The facts

    The Council's acquisition of the land

  11. The Council acquired its leasehold interest in the Manydown site from the claimant, with an option to acquire the freehold, under a lease dated 20 February 1996. It is under this lease that the Manydown site remains in the Council's ownership and control.
  12. The acquisition of the land was considered by the Council's Policy Committee at three meetings in 1995: on 18 July, 17 October and 2 November.
  13. When the Policy Committee met on 18 July 1995 it received the confidential report of the Council's Strategic Management Group. The purpose of the report was described (in para. 1.1) as being "to inform Members of an opportunity which has arisen to acquire an area of land to the west of Basingstoke", and also to seek authority to enter into negotiations, jointly with Hampshire County Council, for the purchase of the freehold interest in the land. In section 2 of the report, which set out background information, the committee was told this:
  14. "2.1 As Members will be aware the recent Hampshire County Structure Plan Review Consultation Document "Hampshire 2011" identifies (inter alia) a Major Development Area at Manydown to the west of Basingstoke. The area is identified as being capable of accommodating between 3,500 and 8,500 dwellings and associated development.

    2.2 It has been recognised that as ownership of land provides additional control over the nature of development, it is the preferred solution for large-scale development (as for example at Chineham). As the proposed Major Development Area in question falls within a single ownership (The Manydown Estate) discussions have been sought with the owners and the County Council to establish whether opportunities exist for jointly influencing and bringing about the satisfactory development of the area.

    …

    2.7 The two Councils are therefore presented with a significant opportunity to work together to secure the successful development of the Major Development Area similar in scale to the County Council's successful scheme at Chineham. It is considered that this opportunity should not be missed."

    In section 3 of the report, under the heading "Planning Implications" the advice was this:

    "3.1 Members should be aware at this juncture that in planning terms the land in question has not progressed beyond its identification as a possible future development site.

    …

    3.5 Ownership enables tight control over the phasing of development which otherwise is in the control of the developer. In the event of this land being approved in development plans for residential or other use, ownership will enable a high degree of control over any adverse impacts on the residents of Oakley, Worting and Kempshott."

    The report went on, in section 4, to deal with financial considerations. It stated:

    "4.1 There is no doubt that if the area is developed both authorities would make substantial financial gains. There is, however, a risk that the area will not be developed in the next Structure Plan period. Even so there must still be a long term development prospect for this site. …

    4.2 The Council's objectives in purchasing the site, in partnership with the County Council, would be:

    (i) To achieve a properly planned, comprehensive development of the area.

    (ii) To secure land for low cost housing in accordance with existing Council policy.

    (iii) To achieve a financial gain which, in turn, could be put, in whole or in part, to further housing initiatives.

    4.3 The partnership with the County Council is important for many reasons. In particular there will be requirements for infrastructure investment prior to the first land sales. This load needs to be shared. …".

    Under the heading "Legal Considerations", section 5 of the report said this:

    "5.1 Both the County Council and the Borough Council have power under Section 227 of the Town and Country Planning Act 1990 to acquire land which is required for a purpose which it is necessary to achieve in the interests of the proper planning of the area in which the land is situated. Both Councils therefore need to be clear what proper planning purpose they are seeking to achieve by acquiring the land. Under Section 101 of the Local Government Act 1972 Councils may discharge their functions jointly so the land may be held jointly. …".

    The recommendation made to the committee appears in section 7 of the report. There were four parts to it:

    "(i) Approve the proposal to work jointly with Hampshire County Council to secure the successful development of an area of land to the west of Basingstoke.

    (ii) Approve the submission of an offer of up to £10 million for the purchase (jointly with Hampshire County Council subject to a resolution of the County Council to the join with the Borough Council) of the freehold interest in approximately 805 hectares (1,990 acres) of land at Manydown Basingstoke on terms and conditions to be agreed.

    (iii) Approve the use of up to £5 million of set-aside LSVT receipts to allow the Council to meet its 50% share of the purchase price.

    (iv) Approve an arrangement to use an additional £5 million of set-aside LSVT receipts to enable Hampshire County Council to meet its agreed share of the purchase price on terms and conditions to be agreed with the County Council by the Director of Resources."

  15. The minute of the Policy Committee's meeting on 18 July 1995 records the recommendation it resolved to make to the Council:
  16. "The Committee considered the report of the Strategic Management Group on an opportunity which had arisen for the Borough and County Councils to jointly acquire the freehold interest of land to the west of Basingstoke which, if successful, would result in (a) an ordered rate of development and (b) a development carried out to a high standard within this Major Development Area.

    It was noted that, in planning terms, the land in question had not yet progressed beyond its identification as a possible future development site and that its future status would not be considered until it had been included in an adopted Local Plan. A decision to proceed with the acquisition would not pre-empt the planning process.

    The Chief Executive confirmed that the County Council Policy and Resources Committee had unanimously approved the acquisition proposal the previous day.

    RECOMMEND THAT

    (1) the submission of an offer of up to the amount given in the report for the purchase (jointly with Hampshire County Council) of the freehold interest in approximately 805 hectares (1,990 acres) of land to the west of Basingstoke on terms and conditions to be agreed be approved so as to secure in the event of the land being allocated for development the proper comprehensive planning of the area;

    (2) the use of up to the amount detailed in the report of set-aside LSVT receipts to allow the Council to meet its 50% share of the purchase price be approved; and

    (3) an arrangement to use an additional equivalent amount of set-aside LSVT receipts to enable Hampshire County Council to meet its agreed share of the purchase price on terms and conditions to be agreed with the County Council by the Director of Resources be approved.".

  17. As Mr Gregory Jones QC for the claimant accepted, in paragraph 5.1 of the July 1995 report the members were, in effect, being asked to focus on the second of the two statutory bases for a local authority's acquisition of land in their area, under section 227(1) and section 226(1) of the 1990 Act (in the form in which those provisions appeared at the time of the Council's and County Council's acquisition of the land in 1996), namely that the land in question "is required for a purpose which it is necessary to achieve in the interests of the proper planning of an area in which the land is situated" (section 226(1)(b)).
  18. The reports prepared for the Policy Committee's meetings in October and November 1995 explained how the detailed terms of the acquisition were being resolved.
  19. The officers' report for the committee's meeting on 17 October 1995 stated (at para. 1.1) that its purpose was "to inform Members of the progress in negotiating the proposed acquisition of a large part of the Manydown Estate to the west of Basingstoke". The officers went on to say (in para. 2.1):
  20. "On the 18th July 1995 the Policy Committee (i.e. Council as landowner) received a report from the Strategic Management Group concerning an opportunity to acquire (jointly with the Hampshire County Council) an extensive area of freehold land between Oakley and the town. The Committee approved and the Council resolved on 27th July 1995 to work jointly with the County Council, to submit an offer of up to £10 million to purchase the freehold of approximately 805 hectares (1990 acres). Approval for use of Large Scale Voluntary Transfer receipts was given as was an approval in principle to enable the County Council to take a half interest in the purchase."

    The recommendation in the report (at para. 7.1) was this:

    "It is recommended that the Policy Committee recommends the Council to authorise officers to continue discussions with the Trustees of the Manydown Estate towards the acquisition of control over the proper planning of the area of land between Oakley and the town of Basingstoke through a long leasehold interest with options to purchase.

    The committee resolved that the officers "be authorised to proceed with the preparation of an appropriate lease …".

  21. At its meeting on 2 November 1995 the Policy Committee received a report that explained the principles of the "inter-authority transaction" envisaged. Paragraph 3.1 of the report stated:
  22. "What is proposed is an inter-authority transaction which is based upon an equal partnership with both authorities exercising their concurrent legal powers under section 227 of the Town and Country Planning Act 1990. These powers allow the Councils to acquire land by agreement for the purpose of gaining additional control through ownership in order to achieve the proper planning of the Council's areas. This is based on equal contribution to the purchase price and equal accounting for the management costs and rent. Should the land ever be allocated for development by the Structure and Local Plan processes then the proposal is that the Councils have equal control over the location, phasing and quality of such development as well as an equal responsibility for providing infrastructure to enable that construction. Should any of the allocated development result in a net surplus to the Councils then this would also be shared equally."

    The officers advised the committee (at para. 7.1) to recommend to the Council that it should:

    "(i) … approve the principles of the proposed joint purchase and future management of the land at Manydown with the County Council as set out in section 3 of this report."

    The committee resolved to approve those principles, and so did the Council on the same day.

  23. On 23 November 1995 Hampshire County Council's Land Sub-Committee received a report prepared by the County Secretary, the County Planning Officer and the County Treasurer. That report stated (in para. 2.1):
  24. "In approving the negotiations for the acquisition of the land at Manydown, the Policy Resources Committee recognised the potential benefits to the County Council of achieving a comprehensive and high standard of development which could be achieved through its joint ownership of the land which had been identified in the Hampshire County Structure Plan Review Consultation Document (Hampshire 2011) as one of four Major Development Areas."

  25. The sale and lease-back transaction was completed on 20 February 1996. This followed negotiations between the claimant and the Council that had lasted about 12 months. The Council had been acting in concert with the County Council. The transaction involved the Council taking a 999 year lease of the Manydown site, paying a premium of £10 million, and taking the land, subject to a 35 year lease granted to the claimant which allows for the Council to secure vacant possession when the land is required for development. The claimant retained a 50% interest in any development value achieved on the land prior to 2050. The remaining 50% was to be shared equally by the Council and the County Council.
  26. The Joint Development Partnership Agreement

  27. On 20 February 1996 the Council and the County Council entered into a Joint Development Partnership Agreement for the Manydown site. Recital B to the agreement stated:
  28. "It is intended that the Property will be purchased by [the Council] pursuant to Sections 226 and 227 [of the 1990 Act] for the purposes and in accordance with the provisions set out in those Sections and pursuant to its powers and duties under these and all other enabling legislation".

    Recital D stated:

    "In anticipation of entering into this Agreement the parties are in the course of setting up a joint committee under Section 101(5) [of the Local Government Act 1972] for the management and development of the Property and to enable them to carry out development in accordance with Section 235 [of the 1990 Act] and pursuant to their powers and duties under this and all other enabling legislation".
  29. The terms of reference of the Joint Development Committee formed by the parties were prescribed by clause 2 of the agreement. In the termination provisions of the agreement in clause 5 the parties agreed "to commence a process of review one year before the Long Stop Date so that the review can be completed by the Long Stop Date" (clause 5.1). The "Long Stop Date" was defined in clause 1.1 of the agreement as meaning "the earlier of the date when both parties agree to review whether or not the Property (or any unsold part thereof) is likely to be allocated for development or 31 March 2011". Clause 6.3 provided:
  30. "From the Trigger Date (unless otherwise agreed) the parties will form the team referred to in Clause 6.7 and the Property will be managed by such team".

    Clause 6.4 provided:

    "The JDC shall manage the Property in accordance with the overall strategic objectives referred to in Clause 7.1…"

    The primary purpose of the agreement was set out in clause 7.1:

    "7.1 The parties agree that

    7.1.1 the primary purpose of this Agreement is the fulfilment of their property obligations and powers including the development of the land and they also agree and recognise that nothing in this agreement will fetter the powers or affect the duties of either party in its capacity of planning authority and<

    7.1.2 their overall strategic objective is to achieve the better planning of the area by (without prejudice to the generality of the forgoing) ensuring the provision of high quality comprehensive development with public facilities provided at the right time in the right place and in the right amount. Clauses 5.3, 5.4 and 5.5 of the agreement recognised that the land might not be allocated for development. Provision was made for a review mechanism. The agreement also provided for the eventuality that the land could not be developed."

    The Council's decision-making machinery

  31. In his third witness statement, dated 22 February 2012, the Council's Head of Legal and Democratic Services, Mr Christopher Guy, said this about the separation of the Council's functions as landowner and local planning authority:
  32. "15. The Land is held pursuant to section 226 of the 1990 Act and it is held pursuant to a separate function than the functions of the Council as local planning authority, which of course include the preparation of the LDF including the Core Strategy. The Defendant sought Counsel's advice as to how to separate the Council's landholding functions from its plan-making and development control functions. The relevant Committees were set up based on that advice.

    16. The Council as landowner is considering the potential of the Land in relation to proper planning of the area and is looking to establish a high quality of development at the right time in accordance with the Joint Development Agreement. This may well embrace wide considerations. For example, in considering the proper planning of the area at the right time, it could be relevant to reflect current economic circumstances as well as matters such as infrastructure."

  33. The Manydown Executive Committee is a committee of the Council's Cabinet, composed of four members of the Cabinet, which has responsibility under paragraph 7.8 of the Council's Constitution for decisions relating to the Council's ownership, development and disposal of the Manydown site. Its remit excludes development control decision-making functions. It was first formed in September 2004 "to assist in the separation of the land holding and local planning authority roles of the Council".
  34. The Joint Manydown Committee of the Council and Hampshire County Council, which is what the Joint Development Committee became in 2006, has responsibility for the management of the Manydown land. It also deals with matters referred to it by the two authorities and is able to advise, and make recommendations to, the Council's Cabinet.
  35. The Council's Manydown Land Protocols provides, at paragraph 2(2), that the Manydown Executive Committee must have "no direct involvement in the functions and decisions of the Council in its capacity as local planning authority". This has been described by the Council as being "a Chinese wall between its separate roles as landowner and local planning authority".
  36. The Council has a number of overview and scrutiny committees. The Economic Prosperity and Performance Overview and Scrutiny Committee ("EPPOSCOM") deals with matters relating to property. The Planning and Infrastructure Overview and Scrutiny Committee ("PIOSCOM") deals with planning matters, including the LDF.
  37. The local plan process

  38. The Manydown site was first identified as a Major Development Area in the draft Hampshire County Council Structure Plan. It was then included for development in the draft Local Plan Review in 2002. The Council adopted the Manydown Development Framework as a statement of the development strategy for the site in September 2004. The Manydown Development Framework Stage 6 Final Report set out a "Manydown Vision":
  39. "When Hampshire County Council and Basingstoke and Deane Borough Council purchased 820 hectares of the Manydown Estate in 1996, following its identification in the Draft County Structure Plan, they did so, in the words of the Town and Country Planning Act under which the purchase took place, "to ensure the proper planning of the area". This underlying objective and the subsequent confirmation of the suitability of the site in two deposit draft versions of the emerging Local Plan Review constitutes a challenge to the purchasers and their advisers to demonstrate what they understand by "proper planning", and to utilise their control over the land as a means to provide the very best development to meet Basingstoke and Deane's needs."

  40. In 2005 the Council promoted the Manydown land for allocation in the Basingstoke Local Plan, but without success. The local plan Inspector recommended the removal of the Manydown site from the plan. He had concerns about the deliverability of the development, in particular as a result of constraints on the treatment of waste water. He was concerned that if development was constrained as a result of a "sewage treatment embargo", many of the important elements of the proposed Major Development Area might not be delivered. He also found that the Manydown Development Framework was not sufficiently detailed to give confidence about the development of the area." In his letter to the Council dated 9 November 2005, setting out his conclusions on the principal issues with which he had had to deal, he said this:
  41. "9. …

    •    by far the most controversial issue is the proposed Manydown MDA. As presented in the Plan and at the Inquiry, this represents a major commitment well beyond 2016 to achieve a sustainable urban extension to Basingstoke for some 8,000 homes. On current evidence only the first stage of this would be required by 2016, but the eventual sustainability of this initial development would be heavily dependant upon the completion of the total scheme. Despite the history of the Councils' involvement with this land, there remains considerable uncertainty as to how the laudable vision of a sustainable urban extension would be achieved. I was particularly concerned to learn that it may not be technically feasible to treat locally the waste water from a scheme accommodating more than about 1,800 homes, and even this figure is open to doubt. Such fundamental uncertainties seriously undermine the credibility of the whole proposal and I recommend that it should be deleted from this current Plan;

    …

    10. I am conscious that the extension of the Plan's horizon to 2016 at Revised Deposit stage was made on the advice of the Government Office, in line with PPG12 and subsequent Ministerial statements. However, the full local situation may not have been appreciated at that time and subsequent decisions by the South East England Regional Assembly have not clarified the broader picture. My recommendation to delete the Manydown MDA at this stage should not be taken as reflecting the concept of a sustainable western urban extension to Basingstoke. It may well be the right long term solution, but it remains to be properly demonstrated that this is the case. The waste water treatment issues raised by the Environment Agency and Thames Water also need to inform the Regional situation, as the future wider role of the Borough may depend upon the ability to comply with future water quality standards at acceptable costs."

  42. In his report the Inspector expressed several serious concerns about the environmental impacts of, and deficiencies in the infrastructure to serve, the major development proposed at Manydown. In his overall conclusion on the proposed Manydown Major Development Area he said this:
  43. "1.16.60 There would be substantial harm to the rural character of the open countryside to the west of Worting and there is a high degree of uncertainty about the impact on SAMs. The acceptability of accommodating on alternative sites the 1,800 dwellings now expected to be required on greenfield sites and proposed in this MDA does not appear to have been tested by the Council. I am therefore not convinced that the loss of best and most versatile agricultural land is necessary for the provision of the amount of housing required to 2016. Together, these factors also weigh against retaining the MDA. Reducing the western extent of development to minimise the impact on the wider countryside would make the suggested district centre poorly located, thus failing to achieve the most sustainable pattern of development.

    1.16.61 The Council place considerable emphasis on the benefits that can be achieved from planning a large scale development in one place over an extended period. I am not persuaded that the MDA would deliver greater planning benefits than the same scale of development in a different pattern. There is also little evidence to indicate that the MDA would create real benefits for the existing residents on the western edge of the town.

    1.16.62 I accept that good planning should seek a long term rather than a short term view, but any long term proposal must be able to respond to changed circumstances. The MDA as proposed does not have this flexibility in critical aspects. Embarking on the MDA now would not represent good long term planning because of the uncertainties I have identified and the possibility that a development lacking good accessibility/sustainability would result. There are no major advantages from making this allocation now to outweigh the harm, disadvantages and uncertainties I have identified. The MDA should not remain in the Plan."

    Events between 2006 and 2009

  44. After the local plan Inspector's report had been received, the Joint Committee decided, on 24 February 2006, to continue to promote the Manydown site for development through the LDF process. The members were advised by officers that there were "obligations to promote Manydown through the local planning procedures" and also that:
  45. "Given the circumstances of the purchase of the land, which recognised its development potential and sought the better planning of the land, it would be a misuse of public assets not to actively engage with the preparation of the LDF".

  46. The decision of the Joint Development Committee was accepted by the Council's Cabinet on 27 March 2006 and by full Council on 6 April 2006.
  47. Elections to the Council were held in May 2006, following which control of the Council changed from a Liberal Democrat and Labour Alliance to a Conservative administration.
  48. A report to the Joint Committee's meeting on 16 June 2006 recommended the appointment of consultants "to continue the land promotion process". However, contrary to the officer's recommendation, the Joint Committee decided to consider the options for the Council ceasing to support the development of the Manydown site.
  49. At a meeting on 27 June 2006, the Manydown Executive Committee resolved to consider the options for and implications of "the Council ceasing to support the Manydown land for development".
  50. On 13 July 2006 the Manydown Executive Committee met to consider the Council's position on the promotion of the Manydown land for development. Paragraph 4.2 of the officers' report for that meeting referred to the purpose for which the land had been acquired:
  51. "Legally, the land was acquired and is being held for the purposes of the development and proper planning of the area – there are no time restrictions as to how long the land can be held before a development decision."

    Paragraph 4.5 of the report referred to the Joint Development Planning Agreement:

    "More specifically the Agreement sets out that:

    •    The purpose of the Partnership is – "the fulfilment of their property obligations and powers including the development of the land"
    •    The overall strategic objective is – "to achieve the better planning of the area by ensuring the provision of a high quality comprehensive development with public facilities provided at the right time in the right place and in the right amount."

    Section 5 of the report considered the Council's role as local planning authority, in the light of the local plan Inspector's report:

    "5.1 Briefly, the Inspector's report on the Manydown development proposal can be summarised as follows:

    •    The Inspector recommended that the Plan ends in 2011. … By implication, the Inspector's recommendation deleted the allocation of the Manydown land for residential development (which was proposed for the period 2011-2016).

    •    The Inspector was, however, partially supportive of the vision of the intended Manydown development referring to a "laudable vision of a sustainable urban extension" and "My recommendation to delete the Manydown MDA at this stage should not be taken as rejecting the concept of a sustainable western urban extension to Basingstoke". He went on to suggest that a more comprehensive development may be appropriate than that put forward by the Local Planning Authority (LPA) for only part of the site. Furthermore he recommended that Manydown should be considered as an option for post 2011 under the preparation of [the LDF].

    •    The Inspector raised a variety of technical transport and infrastructure issues that must be addressed during the preparation of any future detailed proposals for Manydown.

    5.2 The recommendations have been accepted by the Borough Council as Local Planning Authority.

    5.3 It follows that Manydown will be an option for future development, to be considered along with other options during the preparation of the Local Development Framework.

    5.4 The context for the LDF will be regional planning guidance, set out in the South East Plan, which will be considered at an Examination in Public in late 2006/early 2007. Currently, the draft SE Plan indicates a continuation of significant levels of housing development in Basingstoke and Deane.

    5.5 Whether considering Manydown or any other option to accommodate future development requirements, the LPA will need to address the strategic infrastructure issues raised during the Local Plan Inquiry, including water treatment and motorway junction capacity. In this respect, the Council has made budget provision for infrastructure investigations which will need to be undertaken in partnership with key agencies [e.g. the] Environment Agency and Highways Agency."

    Section 7 considered the "Current Situation". Paragraph 7.1 acknowledged that it was the Council's "current policy … to promote the Manydown land for development (as a Major Development Area)" and that this was "in accordance with the terms of the JDPA and reflected in the work of the JDC up to its meeting on 16 June". Paragraph 7.2 stated:

    "It is important that, in considering any change in approach to Manydown, the Executive committee is aware of the legal and financial implications and the potential risks, particularly bearing in mind the County Council's wish to continue to promote the land for development, irrespective of the Borough Council's position, and also the recently expressed views on behalf of the Trustees."

    Paragraph 7.3 of the report made it plain that it was the officers' view that "any decision to suspend, for the time being the active promotion of the Manydown land for development would necessitate detailed negotiation with the County Council because it would contradict the terms of the JDPA". In paragraph 7.4 the officers noted that it was "quite evident, both from the independent Inspector's Report, and from the work being undertaken by the Local Planning Authority, that resolution of high level infrastructure issues is a pre-requisite for the consideration of development options including Manydown". In paragraph 7.5 the officers said this:

    "Without a resolution of the waste water treatment and motorway junction capacity issues, it would not be possible for Manydown to be allocated as an MDA. As both these issues are generic to further longer term development, and not site specific, they are not capable of resolution by the JDC which would therefore need to await the outcome of the infrastructure investigations being undertaken by the Local Planning Authority. Accordingly, there is therefore a justification for suspending, for the time being, the active promotion of the land until such time as the outcomes of this work are known."

  52. The report considered three options: first, no change in policy; second, the temporary cessation of activity in promoting the Manydown site for development; and third, a change in policy. Under the heading "Risks and Legal Implications" paragraph 9.1 of the report stated:
  53. "The Committee must take account of the current position of the County Council and of the views of the Trustees. Accordingly, included as Appendix 5 is a risk assessment, which includes the legal implications. In summary:

    1. No change in policy – continue to promote development/marketing of land via JDC. No risk of challenge.

    2. Temporary cessation of activity in promoting Manydown land for development. This can be justified in terms of awaiting further reports on infrastructure and sewerage capacity and would attract a minimal risk of challenge. With the cooperation of the JDC members and with the benefit of further negotiations between the Borough and County Councils the work of the JDC could revert to more of a management role until further notice.

    3. Change in policy – significant risk of challenge, as the Borough Council would clearly be in breach of both the strict terms and spirit of the JDPA. The County Council would need to act firmly to protect its interests."

    Section 12 of the report pointed to "The Way Forward":

    "On the basis of this report, and consideration of all the options and implications, officers consider that the Executive Committee would be justified in making a recommendation to full Council on 20 July that the Borough Council should cease to support the promotion of the Manydown land for development for the time being."

    The recommendation made by the officers was this:

    "The [Manydown] Executive Committee recommends to full Council that:

    (1) the Borough Council's involvement in the active promotion of the Manydown Land for development should be suspended for the time being, pending, inter alia, the outcome of the work on major infrastructure.

    (2) that officers be authorised to enter into discussions with the County Council to secure the reversion of the role of the Manydown Land Joint Development Committee to that of a Joint Management Committee."

  54. The committee decided to follow the officers' recommendation and resolved that:
  55. "the Borough Council's involvement in the active promotion of the Manydown Land for development should be suspended for the time being pending, inter alia, the outcome of the work on major infrastructure".

    The Decision Notice (91/2006) stated these reasons for the decision:

    "The Local Plan Inspector recommended the deletion of the Manydown MDA from the Local Plan and that it should be considered as an option under the preparation of the LDF. These recommendations have been accepted by the LPA. The LPA is now embarking on the consideration of major strategic infrastructure issues. In these circumstances, and having considered all the options and implications, the Executive Committee concludes that it should recommend to Full Council on 20 July that the Borough Council should cease to support the promotion of the Manydown land for development for the time being."

  56. The minutes of the Manydown Executive Committee meeting on 13 July 2006 were received by full Council on 20 July 2006. Decision Notice 91/2006 was noted by the Council's Cabinet at its meeting on 26 September 2006.
  57. At its meeting on 3 November 2006, the Joint Committee resolved to change the arrangements between the Council and the County Council, by a Deed of Variation to the Joint Development Partnership Agreement, so that the County Council would itself "continue with promoting Manydown for high quality sustainable development". The resolution also provided for a subsequent review in the light of the Council's progress on its LDF and the outcome of "investigations into major infrastructure issues". A review date of 1 August 2008 was proposed to enable the Joint Committee to "decide how to proceed with the Manydown Land". The minutes of the Joint Committee's meeting were endorsed by the Manydown Executive Committee at its meeting on 5 December 2006.
  58. In 2007 and 2008 the site was promoted for development by the County Council alone. The officers' report to the 16 July 2008 meeting of the Joint Manydown Committee noted that the Council's work for the LDF on a water cycle study and a transport assessment was under way. In January 2009, the County Council decided to suspend active promotion of the land for development.
  59. The variation of the Joint Development Partnership Agreement

  60. On 1 April 2009, the Joint Manydown Committee considered proposed changes to the Joint Development Partnership Agreement. In the "Background" section of their report on these changes the officers noted that the Council was "now preparing its first Local Development Framework for the 2011-2016 period." In the section headed "Land Owner Strategy Decisions" the report stated:
  61. "[The] Deed of Variation was not completed formally. However [the Council] did proceed with its landowner "time out", its Local Planning Authority investigations into infrastructure and preparation process for the [LDF] and [the County Council] continued its promotional activities."

    Having said that the South-East Plan was "still to be finalised", and that work on the "Major Infrastructure" issues – "the water cycle" and highway capacity – was continuing, the officers went on to consider the forthcoming LDF process:

    "The Core Strategy document will now deal with the allocation of land for strategic site(s) for residential development, which was previously to be considered within a separate Development Plan Document on 'Allocations'. The LPA is currently working on a Vision and Key Objectives for the Core Strategy before moving onto consider Strategic Spatial Distribution. It is currently understood that there will be Public Consultation on the Core Strategy 'Preferred Approach' towards the end of 2009, and that the LPA is working towards adoption of the Core Strategy towards the end of 2011. As part of this work the LPA is prepared, utilising external consultants, a Draft Strategic Housing Land Availability Assessment ["SHLAA"], which included the land at Manydown and was the subject of public consultation during September / October 2008. The recommendation of the Consultants in preparing the Technical Assessment of the Draft SHLAA was that the Manydown land (referred to as the West of Basingstoke MDA) "should be considered further through the LDF process."

    The officers then turned to the "Landholding Policies" of the Council and the County Council:

    "…As the LPA's work on major infrastructure continues any active promotional activity by [the Council] as landowner remains suspended. The [County Council's] Decision to also suspend active promotion for the time being is now consistent with the [Council's] Decision of July 2006."

    The report described the proposed changes to the joint management arrangements for the Manydown land, including a new "Review Date" of 1 September 2011 and a new "Long Stop Date" of 1 April 2020. The County Council's position as landowner was then noted:

    "It has also been agreed by the [County Council] Executive Member for Policy & Resources that [the County Council] continues to recognise as landowner that Manydown retains the long term development potential for which it was acquired under an agreement between the two Councils. As a consequence, the County Council will continue technical investigations on a town-wide basis and notably into the transportation and infrastructure requirement of its strategic landholdings in the Basingstoke area. The outcome of these investigations and those of the Local Planning Authority will inform the County Council's responses to the first and subsequent reviews of [the LDF]."

    The officers recommended that the position should be reviewed on 1 September 2011. However, contrary to that recommendation, the Joint Committee decided to change the proposed review date from 1 September 2011 to "1 September 2011 or if later the date the Local Development Framework is formally adopted".

  62. On 27 September 2010 the Joint Development Partnership Agreement was varied by deed. New clauses 6.3.3 and 6.3.4 were inserted. They provided:
  63. "6.3.3 With effect from 30 January 2009 until the Review Date (which was defined as "1st September 2011 or if later the date of the adoption of [the Council's] Local Development Framework or any subsequent review date agreed pursuant to Clause 6.3.4) the parties hereto agree that the Property will be not be promoted by either party for any type of development through the local development planning process and neither party will separately or jointly be able to recover any costs outside the Agreed Budget from the other party ("the Second Arrangement").

    6.3.4 Upon the Review Date (or within seven days thereof) the JMC shall consider the Second Arrangement and shall decide whether to continue vary or cease the Second Arrangement taking into account and in the light of:-

    i) any current or emerging regional planning guidelines

    ii) the outcome of the Local Planning Authority's Borough wide investigative work into the major infrastructure issues

    iii) the Local Planning Authority's Core Strategy under the Local Development Framework process

    iv) prudent management by the parties of their respective interests in the Property pursuant to this Agreement and the Lease".

    The Council's SHLAA

  64. Since 2006 work has been done with a view to securing the improvements in water and transport infrastructure that need to be put in place to enable major development in Basingstoke to go ahead. This work has included the publication of a water cycle study and a transport study, and an Infrastructure Delivery Plan.
  65. Every version of the Council's SHLAA prepared since version 1 of it emerged in September 2008 has included the Manydown site. The role of a SHLAA, as the name implies, is to assess the availability of land for development for housing. A SHLAA must identify constraints that might make a particular site unavailable for development.
  66. Initially, the SHLAA envisaged the development of 8,000 new homes in the borough in the period from 2014 to 2036, including 4,000 between 2014 and 2026. This changed in version 2 of the SHLAA to 8,000 new homes in the period from 2018 to 2040, including 3,000 between 2018 and 2026. The version published in October 2010 (version 6) assumed the provision of 1,350 new homes between 2019 and 2026. The Core Strategy period runs to 2027. Version 6 of the SHLAA noted the Council's previous decisions relating to the Manydown land. It contained these comments:
  67. "Availability (legal/ownership issues)

    The site is owned jointly by Basingstoke and Deane Borough Council and Hampshire County Council, through a lease agreement. The Joint Manydown Committee (comprising Members of the borough and county councils), at its meeting of 1 April 2009, considered a report by Hampshire County Council which stated that "… the Manydown land should not be actively promoted further through the borough council's preparation of its first Local Development Framework", and goes [on to] say: "Hampshire County Council continues to recognize as landowner that Manydown retains the long term development potential for which it was acquired under the agreement between the two councils …".

    Achievability (economic viability; market factors; cost factors; delivery factors)

    If allocated for development by the Core Strategy, or a subsequent review, there is a strong prospect that some of the site could be developed for housing within the plan period.

    Conclusion (Deliverable/Developable)

    This site is likely to be available for development within the plan period, may, in principle, be suitable as an urban extension, subject to further testing through the LDF Core Strategy, and achievable. The site should therefore be assessed further through the LDF process."

  68. Under the heading "Phasing" the authors of the SHLAA mentioned the "potential for up to 8,000 units in total, with completion beyond the end of the plan period", noting that the "change to the Manydown delivery date" reflected the decision taken by the Council in 2009 that "… the Manydown land should not be actively promoted further through the … Council's preparation of its first [LDF]". This paragraph followed:

  69. "On the basis that Manydown was not promoted by its owners for development through the current LDF Core Strategy, then any subsequent promotion would need to wait until a revision to the Core Strategy is undertaken. The current Core Strategy is not scheduled to be adopted until October 2011. Any subsequent review would be dependent on a review of the South East Plan. Realistically it would be unlikely that any review of the Core Strategy would be adopted until c.2016, at the earliest. Given the long lead-in times to development proposals of this scale (i.e. gaining outline planning permission and then reserved matters permission and then the lead in times on site before any completions have been achieved), it is suggested that a date of 2021 for the start of completions is a reasonable estimate at this stage."

    The Council's site assessment report of September 2011

  70. In September 2011 the Council's site assessment report concluded that the Manydown site was "not currently available". The analysis on which this conclusion was based appeared in the section of the document dealing with the issue of "Deliverability". This narrated the history of the site's ownership of the land, the Council's relationship with the County Council under the Joint Development Partnership Agreement, and the unsuccessful promotion of the site for allocation in the local plan process. And it continued:
  71. "In 2006, [the Council] and [the County Council] resolved to cease the promotion of Manydown through the LDF. As agreed at JMC and resolved by the Executive Committees this was documented by a formal deed of variation (27 September 2010) to the JDPA which provides for review of this position as at '1 September 2011 of if later the date of the adoption of [the Council's] Local Development Framework or any subsequent review date agreed'. Therefore the site is not currently available. However, there may be longer term scope for the site to come forward if this present view is changed, as recognised in the SHLAA."

  72. The site assessment report mentioned several factors weighing in favour of development on the site and others against. Its final conclusions referred to a number of environmental and infrastructural concerns and constraints – some significant, but none of them seen as an insuperable obstacle to the site's allocation – as well as to opportunities and benefits that development might bring. The "concerns" included "impact on the landscape and biodiversity of the area; the need to preserve open space, woodland and agricultural land; the need to protect Oakley village and maintain the gap between it and Basingstoke; infrastructure issues including the capacity of the sewage system and water supply; accessibility of the site to facilities and services and the resulting impact on the highway network; and the deliverability of the site given technical constraints". But there were "significant opportunities for improving both habitat linkages and the management of areas of importance for rare flora". Three areas had been identified that "could potentially accommodate development", without harm to the landscape of the wider area, without causing coalescence with other settlements, and without resulting in "isolated pockets of development". The constraints referred to – including the impact on heritage assets and the loss of good quality agricultural land – were said to be "unlikely … to prevent development". None of the shortcomings in local services and facilities was seen as "an overriding constraint on the site's deliverability". Major improvements in foul drainage and road infrastructure would be needed. The need to increase the capacity of sewerage might affect the phasing of development but was "not deemed to be a significant constraint". The development of the site "would need to deliver major highway and accessibility infrastructure". Among the benefits of the site's development was the delivery of "facilities and infrastructure, including those relating to the highway network, which could benefit existing residents". However, the conclusions of the site assessment ended with this:
  73. "The overriding 'show stopper' when considering this site however, is its current unavailability for development which would prevent it being developed".

  74. The Council's SHLAA Timeline document recorded the result of the site assessment process for the prospects of the Manydown site in this way:
  75. "The site assessment process was reported to [PIOSCOM] in March 2011 setting out the methodology that would be used to assess all Category 1 sites. This methodology was endorsed by Cabinet at its meeting [on] 29 March. This included a specific criteria [sic] relating to availability and whether sites would be available during the timescales of the Core Strategy. All Category 1 sites in the SHLAA, including Manydown, were fully considered through the site assessment process as agreed. … In terms of Manydown it was concluded that the site was not currently available for allocation in the Core Strategy although there may be longer term scope for the site to come forward if the views of the landowners were to change and a review of the plan was necessary. The trigger for a review would be that there had been a key change in national planning policy or the plan was failing to deliver its objectives or there were problems with delivery of [a] particular allocated site which was impacting upon the Council's land supply position."

    Under the heading "Consideration of Manydown in the LDF Evidence Base", the SHLAA Timeline document stated:

    "… Manydown was included in each of the significant pieces of the evidence base such as the transport modelling, landscape study and the stage 1 biodiversity assessment in light of the fact there was a reasonable prospect that the site would be available for and could be developed at a specific

    point in the future (definition of availability from PPS3). …".

    PIOSCOM's meeting on 20, 21 and 22 September 2011

  76. On 20, 21 and 22 September 2011 PIOSCOM met to consider a report on the appropriate distribution of new housing development in the borough, to inform the pre-submission Core Strategy. The report referred to the Council's New Homes consultation, concluding (at para. 5.3):
  77. "Based on the above findings from the New Homes consultation, it is clear that the majority of respondents to both the questionnaire and the Market Research felt that a single large development on the outskirts of Basingstoke was inappropriate. A greater number of respondents favoured smaller developments across the borough, with extensions to existing towns and villages and, to a lesser extent, small or medium sized developments on the outskirts of Basingstoke."

  78. In their conclusion on the various options the officers said this (in para. 6.9):
  79. "… [It] is considered that the option of a Basingstoke focus with development spread to the larger settlements (including an allowance for regeneration, neighbourhood planning and windfalls) is likely to be one which can be fully delivered and would be considered the most appropriate in the light of the evidence base, the New Homes consultation, housing need and the prospect of neighbourhood planning. This general approach came out most favourably through the Sustainability Appraisal (SA) and is considered to be an approach which is 'sound'. It is therefore recommended by officers that this approach be taken forward."

  80. In the section of the report on "Site Assessment" the officers noted (in para. 7.9):
  81. "Having completed the site assessment work for all of the category one SHLAA sites around Basingstoke, one site has been excluded from further consideration in this report. This is the site at Manydown (BAS098) which is excluded due to the conclusions around site availability from the site assessment work. Accordingly, the site is not considered suitable for allocation in the Core Strategy due to the lack of certainty that development can be delivered during the plan period."
  82. The Council's Planning Policy and Implementation Manager, Mr Andrew Hunter, confirmed in his evidence (at para. 8 of his witness statement dated 22 February 2012) the thrust of the officers' advice in that passage of the report:
  83. "… [The officers'] report set out that the Manydown site could not be taken forward for further consideration as the site was not being promoted for development by the landowner (para 7.9). It should be noted that of the 23 sites that were assessed through the Site Assessment process, nine were suggested as site allocations to take forward into the Pre Submission Core Strategy, two were suggested as reserve sites and the remaining 12 sites (including the [Manydown] Land) were not taken forward."

  84. In his first witness statement, dated 1 February 2012, Mr Guy said (at para.7):
  85. "The [Council] as Landowner has never stated that Manydown is not available, merely that they will not be promoting Manydown. Neither the [Act] nor the Development Agreement between the parties require the Council to develop the land at a particular point in time. The action taken by the [Council] is not incompatible with the powers given under the Act."

  86. In his second witness statement on behalf of the claimant (dated 6 February 2012) Mr Craig Noel, the Head of Planning at Strutt & Parker LLP, drew attention to comments Mr Guy is recorded to have made in three extracts of the transcript of PIOSCOM's meeting on 21 September 2012. In the first extract Mr Guy said this:
  87. "… [It] needs to be borne in mind that [PIOSCOM] is not scrutinising the decision not to release the Manydown land for development. That is a factor inasmuch as the land is not available because the landowners have said the land is not available but this committee itself its purpose tonight is to scrutinise the LDF course to Core Strategy [sic], housing sites and the distribution of those. It is not tonight the role of the Committee to scrutinise the decision not to release Manydown that is a landowner decision and not one that's before this Committee looking at the local development framework. …".

    In the second extract Mr Guy said this:

    "… Now it is a full [Council] policy that the Manydown land should not be promoted for development and it is within that framework that the officers of the planning department have worked. The Manydown land as it is before us tonight is not available for development and therefore it is inappropriate for that to be referred to in the work that's taking place. Members may be frustrated by that but it remains Council policy from 2006 which hasn't changed that the Manydown land is not available for development."

    In the third extract Mr Guy said this:

    "… Every action the JMC has taken since 2006 is predicated on the unchanged Council policy that the Manydown land should not be promoted for development that is the key theme which runs from 2006 to the present day and which has not been changed so that if you want is the landowner policy background to which this Council works. …".

  88. In his second witness statement, dated 7 February 2102, Mr Guy said (at para. 9) that he does not have delegated authority to make decisions for the Council. He went on to comment on the extracts from the transcript referred to by Mr Noel. As to the first he said this:
  89. "… [It] is clear at the beginning of [that extract] that reference is made to the landowner's decision not to promote Manydown. Further on I am simply contrasting the role of [PIOSCOM] and the role of the Joint Manydown Committee."

    As to the second extract Mr Guy said he was there "clearly confirming that the Landowner has made a decision not to promote, that the Local Planning Authority has applied the tests under PPS3 and has determined that Manydown is not available." The third extract, he said, "confirms the position of the landowner in this matter."

  90. At the end of its meetings on 20, 21 and 22 September 2011 PIOSCOM resolved:
  91. (3) To refer the following to [EPPOSCOM]:

    Manydown Development site

    Given the very clear concern expressed by residents from all around the borough on this matter, we call upon the appropriate members and officers to make a full and complete disclosure to Economic Prosperity and Performance Overview and Scrutiny Committee on why this piece of land, bought and owned on behalf of the tax-payers expressly for the purposes of accommodating (in a comprehensive fashion) additional housing, is now not being "actively promoted" as being available for development.

    …

    (6) To support the approach to the distribution of development – [i.e.] 'a Basingstoke focus with development spread to the larger settlements spread of development to larger settlements [sic] in the borough'."

    EPPOSCOM's meeting on 23 November 2011

  92. The officer's report to EPPOSCOM for its meeting on 23 November 2011 considered whether the Manydown site was available. Among the papers appended to the report was the SHLAA Timeline document. In the "Introduction" to the report the officers said (at para. 3.2):
  93. "… [Referring] to the webcast of the EPP meeting on 4 October, the chairman of that committee agreed with the mover of the motion from P&I (Councillor Biermann) that the report should include reference to the "value judgement used in reaching the decision" (that the land is not available). When making this statement the speaker did not explicitly state which "decision" (that the land was not available) he was referring to, however, in that he was speaking to the motion from P&I, it has been assumed he is referring to the decision "not to actively promote" the land for development. The reason for giving the clarification for what this report has assumed is the apparent confusion around the use of the term "available". To be clear from the outset, the landowners of Manydown made a decision not to "actively promote the land for development" and this will be explored further in the report. This decision contributed to the reasons for why the Local Planning Authority … deemed it not available through the [LDF] Core Strategy housing site assessment process due to the lack of certainty that development can be delivered during the plan period. This too will be explored further in this report."

  94. In paragraph 4.6 of the report the officers noted the lease of 20 February 1996 "did not put any obligation on [the Council] to promote and develop". Section 6 of the report recorded the history of the local plan process, the Inspector's conclusions on the proposed allocation of the Manydown site as a Major Development Area in that process, and the subsequent decision of the Manydown Executive Committee on 27 March 2006. Sections 7 and 8 of the report considered, respectively, the Council's and the County Council's "(landowner) decisions re: non promotion of [the] Manydown site for development". Sections 9 and 10 recounted the SHLAA process as it related to Manydown and the relevant parts of the evidence base for the LDF. Paragraph 10.1 stated:
  95. "Manydown was included in each of the significant pieces of the evidence base such as the transport modelling, landscape study and the stage 1 biodiversity assessment in the light of the fact that there was a reasonable prospect that the site would be available at some point in the future, given the [landowner's] express statements that "Manydown retains the long term development potential for which it was acquired". This approach would also enable the council to continue preparation of the Core Strategy if the land owner position were to change prior to agreeing a submission Core Strategy."

  96. The report made clear that it was the Council's position as landowner that was the only barrier to the inclusion of the Manydown site as an allocation for development in the Core Strategy being considered on its own merits. Section 11 of the report considered "The Core Strategy and Site Assessment process". Paragraph 11.2 listed the criteria "used to identify the relative strengths and weaknesses of the various sites" in the site assessment process. In paragraphs 11.3 to 11.5 the report stated:
  97. "11.3 Manydown was assessed against all these headings and detailed comments given. The deliverability

    heading includes assessment against whether the site is available for development. The definition of "availability" is set out in the practice guidance, as being "when, on the best information available, there is confidence that there are no legal or ownership problems, such as multiple ownerships, ransom strips, tenancies or operational requirements of landowners. This means that it is controlled by a housing developer who has expressed an intention to develop, or the landowner has expressed an intention to sell … where problems have been identified, then an assessment will need to be made as to how and when they can realistically be overcome".

    11.4 The availability and certainty of the site coming forward in this plan period is fundamental to deciding whether it should become a site allocation. If it is uncertain at what point a site could be developed during the plan period then it should not be included within a Core Strategy. The assessment under this heading, made by the LPA stated:

    "[The Council] and [the County Council] resolved to cease the promotion of Manydown through the LDF. As agreed at JMC and resolved by the Manydown Executive Committee, this was documented by a formal deed of variation (27 September 2010) to the JDPA which provides for a review of this position as at 1 September 2011 or if later the date the LDF is adopted. Therefore the site is currently not available. However, there may be longer term scope for the site to come forward if this present view is changed, as recognised in the SHLAA." Currently in this context meaning "at this point in time".

    11.5 In order for Manydown to be considered for allocation within the Core Strategy, the landowners would need to review their decision not to promote and as currently stated this will not be until the LDF (Core Strategy) is adopted. In addition, once adopted, a review of the plan would be required to enable this consideration. The trigger for a review could be that there had been a key change in national planning policy or the plan was failing to deliver its objectives or there were problems with delivery of particular allocated sites which were impacting on the [Council's] land supply position."

    In its "Conclusion" the report stated:

    "12.1 This report attempts to respond to the requirements of the referral from P&I and agreed by EPP by setting out a chronology of events from when the Manydown land was acquired to the current position. It details when decisions were made and by which committee, it explains the rationale/reasons, as documented, behind these decisions. It also addresses those issues raised by Councillors Ms James and Keating email where it is appropriate for it to do so.

    12.2 Manydown is included in the SHLAA due to its potential for development in the future as recognised either explicitly or by implication by the position of both landowners. It can only be considered for inclusion in the core strategy when the landowners change their view on "promotion" of the land for development. This is on the record as being "the date the LDF is adopted" – given that other review dates have passed. However, inclusion in the Core Strategy, should the landowners views change at that date (LDF adopted) can only then be considered if a review of the plan is triggered and this can only happen in certain circumstances as explained in paragraph 11.5 above. So unless the landowners reach agreement that they wish to change their decision and review their position that they will not actively promote Manydown for development, prior to the date of the LDF adoption, the current situation remains. This would suggest that officer advice would remain the same [i.e.] that the site is not currently available and that there is no certainty that it would be developable during the 15 year plan period, providing no certainty of delivery.

    12.3 Members of EPP are asked to note the contents of this report and decide whether they wish any further action to be taken and if so to agree what form that action should take."

  98. In the light of that advice EPPOSCOM resolved to make this recommendation to "Full Council":
  99. "In the context of the existing agreement between the Borough Council and the County Council (as noted by the Borough Council in July 2009) to review whether Manydown should be promoted for development once the first LDF (Core Strategy) has been adopted; being mindful of the guidance given by the Inspector at the last Local Plan inquiry; and noting the clearly expressed views of residents in their response to the New Homes Consultation in 2011, this Committee recommends that Officers are asked to report to the Manydown Executive Committee with their advice on:

    1) The issues that will need to be addressed in assessing any potential for future development;
    2) The processes they would recommend for addressing those issues in a sound manner;
    3) The time required to undertake the above work;
    4) The costs likely to be incurred by carrying out the analysis; and
    5) The financial implications for the Borough Council."

    EPPOSCOM also resolved "[to] request the Audit, Governance and Accounts Committee to consider in relation to the Manydown Land" a number of matters, including "Predetermination and maladministration", "The change of administration, block voting and the decision in 2006-2007 not to actively promote the Manydown Land for development", and "The use of money received through Large Scale Voluntary Transfer of the Housing Stock … which should have been used for grant aiding Housing Associations …".

    The first decision under challenge – the Council's decision of 15 December 2011

  100. At its meeting on 15 December 2011 the Council resolved to follow EPPOSCOM's recommendation "to review whether Manydown should be promoted for development once the first LDF (Core Strategy) has been adopted" and to ask officers to report to the Manydown Executive Committee with their advice on the five matters specified in EPPOSCOM's recommendation, namely the "issues that will need to be addressed in assessing any potential for future development", the "processes they would recommend for addressing those issues in a sound manner", the "time required to undertake [that] work", the "costs likely to be incurred by carrying out the analysis", and the "financial implications for the … Council."
  101. Also on the agenda for the full Council meeting on 15 December 2011 was motion 12(4), which was in these terms:
  102. "(4) Manydown Land Availabiltiy for Development

    Mover: Councillor Martin Biermann

    Seconder: Councillor Ian Tilbury

    In the light of the many changes of circumstance since the Borough Council decided in 2006 to adopt a policy that no part of Manydown should be promoted for development during the current Core Strategy process, not least:

    (a) the identification within the SHLAA of the Manydown sites' [sic] suitability and achievability for development within the Core Strategy period; and

    (b) the absence of any show stopping infrastructure constraints to development; and

    (c) the need to ensure a proper and fair comparison of all greenfield sites within the Core Strategy selection process

    this Council requires the Manydown Executive Committee, before the next Planning and Infrastructure OSCOM or 11 January 2012 whichever is the sooner, to review its 2006 policy decision temporarily to not actively promote this site. Slavish adherence to that historic policy decision is unlawful and this is the time to reconsider whether that policy is consistent with the Council's statutory responsibilities as landowner having regard to the purposes for which the land was acquired."

    That motion was lost by 31 votes to 24.

  103. No report was before the Council when it made these decisions. Mr Guy said in his evidence (in para. 11 of his third witness statement) that "Officers have little involvement with such motions and a report is not prepared". A transcript of some of the discussion that took place at the meeting has been produced in evidence. It appears that no advice was given to the members by officers about the timing of the steps required by motion 12(4). In his evidence (in paras. 12 and 13 of his third witness statement) Mr Guy said this:
  104. "12. Full Council refused the motion on 15 December 2011, which is a reasonable decision for the [Council] to make. The motion sought to require the Manydown Executive Committee to review its 2006 decision before the next [PIOSCOM meeting] on 11 January 2012.

    13. Logistically and procedurally, the motion proposed was not practical. The motion required the Manydown Executive Committee to have reviewed its decision by 11 January 2012. It would not have been possible to provide the Manydown Executive Committee with a properly reasoned report within that timescale. In addition, any decision of the Manydown Executive Committee would have to be approved by Full Council. The next scheduled meeting of which was 9 February 2012."

    PIOSCOM's meeting on 11 January 2012

  105. The officers' report to PIOSCOM for its meeting on 11 January 2012 considered whether the Manydown site was available, in the light of government policy in PPS3. The report contained this advice:
  106. "4.23 On the 17 October 2011, Cabinet agreed potential sites for inclusion in the Pre Submission Core Strategy. This did not include the allocation of the Manydown site due to the position of the landowners, who were not actively promoting the site for development, and had agreed not to review this position until the first LDF was formally adopted.

    4.24 Officers would like to reiterate and expand on the reasoning behind their view that Manydown should not be included in the draft Core Strategy. The prospect of development being achieved on the Manydown site in the plan period is central to the assessment of the site's suitability for allocation in the draft core strategy, as per the relevant tests detailed by paragraphs 54 to 57 of PPS3. The intentions of the landowners of Manydown are essential to the Local Planning Authority's consideration of the prospect of development being achieved on the site during the plan period. To be allocated within the draft core strategy the local planning authority must be satisfied that the site must either be "deliverable" and "available now" (within years 1-5) or "developable" (within years 5-6 or 6-15)[.] Crucially, to be developable, there must be "a reasonable prospect that the site would be available and could be developed at the point envisaged".

    The officers went on to give the members this advice:

    "4.27 Applying the 'deliverability' test for years 1-5 of the plan (as set out in Paragraph 4.24), in the light of the landowner decisions not to promote the site, it is clear the Manydown is not "available now". Consequently, Manydown should not be viewed as being 'deliverable' and cannot therefore be included in the Draft Core Strategy.

    4.28 The Local Planning Authority must, however, also consider whether Manydown should be included in the draft Core Strategy by virtue of being 'developable'.

    4.29 For Manydown to be considered 'developable' there must be a reasonable prospect that Manydown will become available for development at a point envisaged during the plan period. The intentions of the landowners are clearly relevant to the consideration of this issue. Officers are of the view that this cannot be demonstrated for the following reasons:

    a. It is clear from the landowners' decision set out above that their stated intention is not to promote Manydown in the Council's first LDF (officers have interpreted 'first LDF' as meaning the Council's Core Strategy) and not to review this position until the Council's first LDF is adopted. There is no clear stated intention on behalf of the landowners to promote the site for development or to make the site available at a point during the plan period;

    b. The landowners have been aware of the Local Planning Authority's intention to exclude Manydown from the draft Core Strategy since 23 September 2011 (when an LDF update report was made to the Joint Manydown Committee). However, neither landowner has made any representations to the Local Planning Authority requesting that the Local Planning Authority review its position regarding the exclusion of Manydown; and

    c. At the EPPOSCOM meeting [on] 23 November 2011, a recommendation to Full Council was made (set out at Appendix 6 of this report). This recommendation was subsequently agreed by Full Council on the 15 December 2011. This does not materially change the position of the Landowners regarding Manydown from the Local Planning Authority's point of view.

    4.30 In light of the above, on present information, officers are of the opinion that there is no reasonable prospect of Manydown becoming available or being developed during the plan period and therefore cannot recommend its inclusion in the Pre-Submission Core Strategy. The Council has identified a number of other 'developable' sites for inclusion in the strategy for the next 15 years, so a broad allocation, which has no proven reasonable prospect as to its developability is not required. For clarity, the [Council] needs to produce a plan which has a 15 year supply of developable sites contained within it. As such, officers consider that including a site within the Core Strategy, which does not meet the tests of PPS3, with no clear timeframe as to when and if the site might be released, would not be a sound approach.

    4.31 Should the positions of the landowners change in due course and prior to the adoption of the Core Strategy, the Local Planning Authority will have to take account of the landowners' positions, which may warrant a reassessment of the developability of the Manydown site."

    The second decision under challenge – the Cabinet's decision of 23 January 2012

  107. The report to the Council's Cabinet for its meeting on 23 January 2012 considered the availability of the Manydown site in the same terms as the report to the meeting of PIOSCOM on 11 January 2012.
  108. As recorded in Decision Notice 739/PTI, the Cabinet, inter alia:
  109. iv) [re-affirmed] its position in respect of the proposed allocated sites and locations for development for inclusion in the Pre-Submission Core Strategy; and

    v) [approved] the Pre-Submission Core Strategy for consultation for the period 10 February 2012 to 23 March 2012, … ",

    subject to various changes, none of which related to the Manydown land.

    The report for the meeting of the Manydown Executive Committee on 20 March 2012

  110. The Council's Head of Finance, ICT and Local Tax prepared a report for the meeting of the Manydown Executive Committee on 20 March 2012. The subject of the report was the "Work required for the promotion of the Manydown site in a future LDF". Section 9 the report responded to items (a) to (e) in the Council's resolution of 15 December 2011, on the "assumption … that the requirement is for a fundamental review of the options for Manydown, which will include comprehensive consultation with the public on its views and preferences." The "issues that will need to be addressed in assessing any potential for future development" were said to be these:
  111. "

    •    A review of the suitable area of land that could be developed (previously suggested to be 327ha)

    •    Identification of possible landowner requirements that would impact on the scale, nature and timing of any development

    •    Identification of possible borough resident requirements that would impact on the scale, nature and timing of any development

    •    Options regarding the scale of development and timescales

    •    Options regarding the forms of development

    •    Responses to public consultation on options

    •    Infrastructure requirements for each option identified

    •    Assessment of the financial viability of a range of options".

    The report went on to identify the processes recommended for addressing those issues. The work "would need to consider both a review of previous work and the development options already considered, plus a range of potential new options yet to be identified". As to the time required to undertake the work, the report indicated a period of "three years or more, depending on the degree of new work required and the extent and number of stages of public consultation". The costs of carrying out the work and the financial implications for the Council were also addressed. The officers recommended to the committee that it should note the report and consider the next steps.

    Relevant government policy

    PPS3 (2011)

  112. At the relevant time PPS3 "Housing" was the Government's policy statement on the planning of housing development. Paragraphs 54 to 56 of PPS3 explain the concepts of the deliverability and availability of housing land:
  113. "54. Drawing on information from the Strategic Housing Land Availability Assessment and or other relevant evidence, Local Planning Authorities should identify sufficient specific deliverable sites to deliver housing in the first five years. To be considered deliverable, sites should, at the point of adoption of the relevant Local Development Document:

    55. Local Planning Authorities should also:

    56. To be considered developable, sites should be in a suitable location for housing development and there should be a reasonable prospect that the site is available for, and could be developed at the point envisaged."

    PPS12 (2008)

  114. In the relevant version of the Government's planning policy statement on development plan-making, PPS12 "Local Spatial Planning", which was published in 2008, section 4 deals with Core Strategies. Paragraph 4.1 states:
  115. "Every local planning authority should produce a core strategy which includes:

    (1) an overall vision which sets out how the area and the places within it should develop;

    (2) strategic objectives for the area focusing on the key issues to be addressed;

    (3) a delivery strategy for achieving these objectives. This should set out how much development is intended to happen where, when and by what means it will be delivered. Locations for strategic development should be indicated on a key diagram; and

    (4) clear arrangements for managing and monitoring the delivery of the strategy."

  116. Paragraph 4.5 of PPS12 emphasizes that it is "essential that the core strategy makes clear spatial choices about where developments should go in broad terms". Paragraph 4.6 indicates that core strategies may "allocate strategic sites for development" and that these "should be those sites considered central to achievement of the strategy". Paragraph 4.7 emphasizes that the core strategy "looks to the long term", adding that it "may be beneficial to delivery of its objectives for details of key sites to be included in it, where these sites are central to the achievement of the strategy and where investment requires a long lead-in". Paragraph 4.8 stresses the need for the core strategy to be "supported by evidence of what physical, social and green infrastructure is needed to enable the amount of development proposed for the area, taking account of its type and distribution", and that such evidence "should cover who will provide the infrastructure and when it will be provided". Paragraph 4.14 states:
  117. "Core Strategies represent a considerable body of work and are intended to endure and give a degree of certainty to communities and investors. In particular they give a guide to where long term investment in infrastructure should be made. …".

    Under the heading "Alternatives" paragraph 4.38 states:

    "The ability to demonstrate that the plan is the most appropriate when considered against reasonable alternatives delivers confidence in the strategy. It requires the local planning authority to seek out and evaluate reasonable alternatives promoted by themselves and others to ensure that they bring forward those alternatives which they consider the LPA should evaluate as part of the plan-making process. There is no point in inventing alternatives if they are not realistic. Being able to demonstrate that the plan is the most appropriate having gone through an objective process of assessing alternatives will pay dividends in terms of an easier passage for the plan through the examination process. It will assist in the process of evaluating the claims of those who wish to oppose the strategy."

    Paragraphs 4.48 to 4.52 deal with "Quality Assurance". The statutory requirements under section 20(5) of the 2004 regulations are explained. The tests of "soundness" are emphasized. These include the need for the core strategy to be "justified" as "the most appropriate strategy when considered against the reasonable alternatives".

    Issue (1) – Jurisdiction

    The relevant law – statute and jurisprudence

  118. Under the heading "Validity of strategies, plans and documents" section 113 of the 2004 Act provides:
  119. "(1) This section applies to –

    (c) a development plan document;

    …

    (2) A relevant document must not be questioned in any legal proceedings except in so far as is provided by the following provisions of this section.

    …

    (3) A person aggrieved by a relevant document may make an application to the High Court on the ground that –

    (a) the document is not within the appropriate power;

    (b) a procedural requirement has not been complied with.

    (4) But the application must be made not later than the period of six weeks starting with the relevant date.

    ...

    (11) References to the relevant date must be construed as follows –

    …

    (c) for the purposes of a development plan document (or a revision of it), the date when it is adopted by the local planning authority or approved by the Secretary of State (as the case may be);

    …".

  120. Section 37 of the 2004 Act provides:
  121. "(1) Local development scheme must be construed in accordance with section 15.

    (2) Local development document must be construed in accordance with sections 17 and 18(3).

    (3) A development plan document is a local development document which is specified as a development plan document in the local development scheme.

    …".

  122. Section 15(1) of the 2004 Act requires a local planning authority to "prepare and maintain a scheme to be known as their local development scheme". Section 15(2)(aa) requires the scheme to specify "the local development documents which are to be development plan documents". Section 17(8) provides:
  123. "A document is a local development document only in so far as it or any part of it –

    (a) is adopted by resolution of the local planning authority as a local development document;

    …".

  124. Under section 19(1) development plan documents must be prepared in accordance with the local development scheme. Section 20 provides that the local planning authority "must submit every development plan document to the Secretary of State for independent examination", once it has complied with the relevant requirements in regulations and it considers the document to be ready for such examination. Section 23 provides for the adoption of local development documents by the local planning authority. Under section 23(5) a document "is adopted for the purposes of this section if it is adopted by resolution of the authority".
  125. In Part 6 of the Town and Country Planning (Local Development) (England) Regulations 2004 ("the 2004 regulations"), which relates to "Development Plan Documents", regulation 24(2) provides:
  126. "proposed submission documents" means –

    (a) in relation to a DPD [which, under regulation 2(1), means a development plan document] the following documents –

    (i) the DPD which the local planning authority propose to submit to the Secretary of State,

    …".

  127. Under the heading "Publication of a development plan document", regulation 27 requires a local planning authority to take certain steps "[before] submitting a DPD to the Secretary of State under section 20". Regulation 28(1) provides that "[any] person may make representations about a DPD which a local planning authority propose to submit to the Secretary of State".
  128. In Hinde v Rugby Borough Council [2011] EWHC 3684 (Admin) Mr David Elvin QC, sitting as a deputy judge of the High Court, held (at para. 35 of his judgment) that the period for bringing an application to challenge a development plan document under section 113 of the 2004 Act was 42 days, beginning on the date of adoption. The deputy judge noted (at para. 14) that:
  129. "… s.113 was not simply a re-enactment of s.287 [of the 1990 Act, the equivalent provision for challenging old-style development plans] but a replacement for it, just as the new provisions of the 2004 Act dealing with development plans and their like replaced the earlier provisions in the 1990 Act. It is not therefore appropriate to approach s.113 as if it were a mere re-enactment in new legislation of an existing provision … It may have been based on s.287, and be the equivalent provision to s.287 in the new context, but it is a provision permitting challenges in the context of the new scheme of development plans in the 2004 Act and has to be construed according to its own provisions and language."

  130. Section 284(1) of the 1990 Act provided:
  131. "Except in so far as may be provided by this Part, the validity of –

    (a) a … local plan … whether before or after the plan … has been … adopted;

    …

    shall not be questioned in any legal proceedings whatsoever."

  132. In R v Cornwall County Council, ex parte Huntington and another [1994] 1 All ER 694 Simon Brown LJ, as he then was, identified (at p.701) three categories of case excluded from the statutory review procedure: typically, cases where what is challenged is not the decision itself but rather "(a) a failure by the statutory decision-maker to exercise his jurisdiction …, (b) the reasoning underpinning the decision which is otherwise in the applicants' favour …and (c) some antecedent step quite separate and distinct from any eventual decision reviewable under the statute …". The statutory context in that case was the scheme of the Wildlife and Countryside Act 1981 for the making of orders to modify a county council's definitive map and statement of public rights of way. Simon Brown LJ approved (ibid.) what Brooke J had said at first instance [1992] 3 All ER 566 (at p.576):
  133. "It is quite clear, in my judgment, that Parliament intended to prescribe a comprehensive programme of the events which should happen from the time the relevant authority sets in motion the consultation process mentioned in para 1 of Sch 15, and that once the order is made the prescribed procedure then follows, without any interruption for legal proceedings in which the validity of the order is questioned, until the stage is reached, if at all, when notice of a decision is given pursuant to the procedure prescribed in para 11. It is then, and then only, that Parliament intends that a person aggrieved by an order which has taken effect shall have the opportunity of questioning its validity in the High Court provided that he takes the opportunity provided for him by para 12(1) of Sch 15 …".

    Simon Brown LJ acknowledged (at pp.700 and 701) that there were obvious benefits to a procedure that allowed a challenge to be brought only after a statutory decision-making process had run its course. The first of these was "that the very fact that an application for judicial review cannot be made at this preliminary stage means that the inquiry will not be delayed thereby". Another was "that the Secretary of State may in any event refuse to confirm the order, thus making unnecessary any legal challenge whatever." The court has, however, recognized that, in some cases, public law error committed in a plan-making process might best be corrected by a timely claim for judicial review (see, for example, the obiter dicta of Buxton LJ in his judgment in First Corporate Shipping v North Somerset Council [2001] EWCA Civ 693, at paras. 36 to 44, with which Peter Gibson LJ agreed, at para. 46). And, in any event, it is well settled law that the scope of an ouster provision such as section 113(2) of the 2004 Act must be determined by the words of the provision itself (see, for example, R v Secretary of State for the Environment, ex parte Stewart (1978) 37 P&CR 279, Co-operative Retail Services Ltd v Secretary of State [1981] 1 WLR 271, South Northamptonshire District Council v Secretary of State (1995) 70 P&CR 224, R v Secretary of State, ex parte Royal Borough of Kensington and Chelsea [1987] JPL 567, and R v Hinckley and Bosworth Borough Council, ex parte Fitchett and Bloor (1997) 74 P&CR 52). The fact that a particular action on the part of a local planning might later expose an adopted plan to challenge by a statutory challenge does not, of itself, debar an earlier claim for judicial review.

    Submissions for the Council

  134. For the Council Mr Rhodri Price Lewis QC submitted that, in part at least, the present challenge, being a claim for judicial review, is precluded by section 113(2). In making that submission he relied on the provisions of sections 15, 19, 20 and 37 of the 2004 Act, and the corresponding provisions of the 2004 regulations – in particular, regulations 24, 27 and 28. An emerging core strategy is a "development plan document" for the purposes of section 113, provided it is in the local development scheme and is being prepared in accordance with 2004 regulations. That is so here. The statutory provisions recognize as "development plan documents" such documents as they proceed through the statutory procedure towards formal adoption under section 23. They do not become development plan documents only when finally adopted. One can only make sense of the relevant statutory provisions if one understands the concept of a development plan document in section 113 as embracing a draft development plan document, including a pre-submission consultation draft. Therefore, the preclusive provision applies to the Council's decisions relating to its emerging Core Strategy, including the decision of the 23 January 2012 to consult on the pre-submission Core Strategy. This understanding of the position, said Mr Price Lewis, is consistent with the Court of Appeal's decision in ex parte Huntington [1994] 1 All ER 694 (at pp.699 to 701). The Cabinet's decision of 23 January 2012 was not an unrelated "antecedent step". The claimant's challenge does not merely allege a procedural irregularity in the preparation of a development plan document; it goes to the substance of the Core Strategy itself.
  135. Submissions for the claimant

  136. For the claimant Mr Jones submitted that Mr Price Lewis's argument on jurisdiction was misconceived. It came back repeatedly to the concept that the present challenge concerns a "local development document", without recognizing that section 17(8) of the 2004 Act defines such a document as one "adopted by resolution of the local planning authority as a local development document". The pre-submission Core Strategy is not, by this definition, a "local development document". Both of the decisions under attack in these proceedings preceded – and were not properly part of – the statutory process that would end in the adoption of the Core Strategy. If it were necessary to categorize those decisions, they would fall within the class described by Simon Brown LJ in ex parte Huntington as "some antecedent step quite separate and distinct from any eventual decision reviewable under the statute". And, in any case, the claim was not a challenge of the kind that could be made under section 113. Section 113 is concerned specifically, and solely, with the questioning of "a relevant document". This claim for judicial review is not aimed at any "relevant document". It is not aimed at an adopted local development document as such, or even at a local development document in draft. Its targets are two decisions whose effect was to prescribe or influence the scope of the Core Strategy process. Thus the preclusive provision in section 113(2) does not bite on this claim.
  137. Discussion and conclusion on issue (1)

  138. I cannot accept that these proceedings for judicial review are precluded by section 113 of the 2004 Act.
  139. In my view Mr Price Lewis postulated too broad a scope for section 113(2). As with any statutory ouster of the court's jurisdiction, one must interpret this provision strictly in accordance with the words Parliament has chosen for it. This principle was recognized in Hinde, where it was stressed that section 113 must be construed according to its own terms. I also think it is important to notice the difference in statutory language between the ouster provision in section 113 and the one that previously applied to challenges to local plans. Section 284(1) of the 1990 Act applied to a local plan "whether before or after the plan … has been approved or adopted". Such words do not appear in section 113 of the 2004 Act.
  140. As Mr Jones submitted, the present claim does not seek to question a "relevant document" of the kind to which section 113 refers. It impugns two decisions, each of which, in a different way, affects the parameters of the process that will culminate in the adoption of the Core Strategy under section 23 of the 2004 Act. They are, in that sense, decisions antecedent to, and not part of, the process. I do not think this approach departs from that indicated by the authorities, including ex parte Huntington. On the contrary, I think it is entirely consistent with the relevant jurisprudence.
  141. Under the provisions of section 113(1)(c), (2), (3), (4) and (11)(c) it is a development plan document that may be questioned only upon its adoption, and within six weeks of that date – not some prior step on the part of the local planning authority, even one that might vitiate the development plan document itself once it has been adopted. Adoption – or approval, as the case may be – is of more than merely formal significance. It is a defining characteristic of the "strategies, plans and documents" embraced in the statutory jurisdiction under section 113.
  142. I cannot see how the preclusive provision in section 113(2) could catch a decision such as that taken by the Council on 15 December 2011. That decision was, in effect, a decision not to promote land owned by the Council in a plan-making process. In my view it lies well beyond the ambit of section 113. It is, however, plainly susceptible to proceedings for judicial review.
  143. Nor do I accept that the decision taken by the Council's Cabinet on 23 January 2012 lies within the reach of the preclusive provision. That decision had the effect of approving a pre-submission draft of the Core Strategy for consultation, the results of which would later inform the preparation of the submission draft. Such a decision does not, in my judgment, constitute a local development document being adopted as such by resolution of the local planning authority. These proceedings were begun before even the pre-submission Core Strategy had crystallized in a document published for consultation. And they do not seek to question any development plan document as such, either adopted or in draft.
  144. Therefore, I do not think it is necessary to decide in this case whether a pre-submission draft of a core strategy qualifies as a "relevant document" within section 113. But I would hold that it does not. The relevant statutory provisions must be read together. Admittedly, the requirement in section 20(1) of the 2004 Act that the local planning authority must submit a development plan document to the Secretary of State for independent examination implies that, according to the particular statutory context, the concept of a development plan document can include the submission draft of such a document. This is also effectively acknowledged in the 2004 regulations. However, I do not believe one can infer from any of the relevant statutory provisions that a pre-submission draft, published – or about to be published – for consultation, qualifies as a development plan document within section 113(1).
  145. The conclusion that these proceedings are not ousted by section 113(2) seems both legally right and pragmatic. In a case such as this an early and prompt claim for judicial review makes it possible to test the lawfulness of decisions taken in the run-up to a statutory process, saving much time and expense – including the expense of public money – that might otherwise be wasted. In principle, it cannot be wrong to tackle errors that are properly amenable to judicial review, when otherwise they would have to await the adoption of the plan before the court can put them right. Improper challenges – including those caught by the ouster provision in section 113(2) – can always be filtered out at the permission stage.
  146. Issue (2) – Lawfulness

    The statutory framework for the acquisition of land by local authorities for planning purposes

  147. Section 227(1) of the 1990 Act provides that an authority "may acquire by agreement any land which they require for any purpose for which a local authority may be authorised to acquire land under section 226". At the time of the Council's acquisition of its interest in the Manydown land, section 226 provided, under the heading "Acquisition for planning and public purposes":
  148. "(1) A local authority to whom this section applies shall, on being authorised to do so by the Secretary of State, have power to acquire compulsorily any land in their area which –

    (a) is suitable for and required in order to secure the carrying out of development, redevelopment or improvement; or

    (b) is required for a purpose which it is necessary to achieve in the interests of the proper planning of an area in which the land is situated."

  149. Section 226(1)(a) was substituted by section 99 of the 2004 Act, with effect from 31 October 2004, as follows:
  150. "(a) if the authority think that the acquisition will facilitate the carrying out of development, re-development or improvement on or in relation to the land,"

    Section 99(5) of the 2004 Act provided:

    "Nothing in this section affects a compulsory purchase order made before the commencement of this section".

  151. Any land acquired under section 226 or section 227 is acquired "for planning purposes" (section 246(1)(a)). Section 235 ("Development of land for planning purposes") provides a power for an authority to construct buildings on land acquired or appropriated and held for planning purposes, and "generally deal with such land in a proper course of management".
  152. Section 232(1) of the 1990 Act, under the heading "Appropriation of land held for planning purposes", provides:
  153. "Where any land has been acquired or appropriated by a local authority for planning purposes and is for the time being held by them for the purposes for which it was so acquired or appropriated, the authority may appropriate the land for any purpose for which they are or may be authorised in any capacity to acquire land by virtue of or under any enactment not contained in this Part or in Chapter V of Part I of the Planning (Listed Buildings and Conservation Areas) Act 1990."

  154. The corresponding general power in section 122(1) of the Local Government Act 1972, "Appropriation of land held for planning purposes", provides:
  155. "Subject to the following provisions of this section, a principal council may appropriate for any purpose for which the council are authorised by this or any other enactment to acquire land by agreement any land which belongs to the council and is no longer required for the purpose for which it is held immediately before the appropriation; but the appropriation of land by a council by virtue of this subsection shall be subject to the rights of other persons in, over or in respect of the land concerned."

    Relevant principles of public law

  156. Several well-known and uncontroversial principles of public law were referred to in the course of argument:
  157. (1) When a public body is entrusted with an apparently unfettered discretion, it must exercise its power reasonably and in accordance with the relevant statutory purpose (see Smith v East Elloe RDC [1956] AC 736, in particular the speech of Lord Radcliffe at p.767).

    (2) Powers conferred on a local authority by statute can validly be used only in the way that Parliament, when conferring the power, is presumed to have intended (see Porter v Magill [2002] 2 AC 357, in particular the speech of Lord Bingham of Cornhill at p.463D-H).

    (3) An authority may not exclude or limit the future exercise by it of its powers (see R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407, in particular the speech of Lord Browne-Wilkinson at p.496G to p.497B).

    (4) If it asks itself the wrong question or misinterprets its powers or makes a mistake of fact, an authority may unlawfully fetter its discretion (see R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513, in particular the speech of Lord Browne-Wilkinson at p.551D-E).

    (5) An authority generally has a duty to consider whether it should exercise its powers (see Stovin v Wise [1996] AC 923, in particular the speech of Lord Hoffmann at p.950B).

    (6) An authority may not enter into any contract, or take any action, incompatible with the due exercise of its statutory powers or the discharge of its functions (see Birkdale District Electric Supply Co v Southport Corporation [1926] AC 355, in particular the speech of the Earl of Birkenhead at p.364).

    (7) An authority owes a fiduciary duty to its taxpayers, which includes the duty to use the full resources available to it to the best advantage (see Bromley LBC v Greater London Council [1983] AC 768, in particular the speech of Lord Diplock at p.829G to p.830F).

    (8) An authority must discharge its functions so as to promote – and not so as to thwart or act contrary to – the policy and objects of the legislation conferring the power under which the land was acquired and is held (see Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997, in particular the speech of Lord Reid at p.1030B-D, p.1033A, and p.1045G). In applying the Padfield principle the court must consider the decision-maker's purpose in the action it took and whether this was it calculated to promote the policy of the Act (see R v Braintree District Council, ex parte Halls (2000) 80 P&CR 266, in particular the judgment of Laws LJ at para.36).

    (9) No less clear are the corresponding general principles that govern the functions of a public body as landowner. An authority's powers as the owner of land are not to be equated with those of a private landowner. It must act to further the statutory object for which it acquired and holds the land, exercising its statutory powers only for the purpose for which those powers were conferred (see R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037, in particular the judgment of Sir Thomas Bingham MR at p.1042G-H and p.1046B).

    Principles applying to decision-making by a public body

  158. Familiar principles of public law relating to decision-making by public bodies are also engaged:
  159. (1) An authority must not take into account irrelevant material or fail to take into account that which is relevant (see Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, in particular the judgment of Lord Greene MR, at pp.233 and 234). It must not act irrationally or perversely (ibid.). In R v Parliamentary Commissioner for Administration, ex parte Balchin [1996] EWHC Admin 152 Sedley J, as he then was, summarized the principle (at para. 27):

    "[The claimant] does not have to demonstrate, as respondents sometimes suggest is the case, a decision so bizarre that its author must be regarded as temporarily unhinged. What the not very apposite term 'irrationality' generally means in this branch of the law is a decision which does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic."

    (2) An authority's decision would be unlawful if based on a material mistake of fact (see, for example, the judgment of Sullivan J, as he then was, in Haringey LBC v Secretary of State [2008] EWHC 2101, at paras. 11, 12 and 16).

    (3) In applying relevant policy, the decision-maker must understand the policy correctly (see the judgment of Woolf J, as he then was, in Gransden v Secretary of State for the Environment (1987) 54 P&CR 86, at p.94). If he departs from policy he must acknowledge that fact, and set out cogent reasons for doing so (see, for example, the judgment of Purchas LJ in Carpets of Worth Ltd v Wyre Forest District Council (1991) 62 P&CR 334, at p.342). Policy statements are to be interpreted objectively in accordance with the language used, read in its proper context (see the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13, at paras. 17 to 21).

    The Localism Act 2011

  160. Under the heading "Local authority's general power of competence", section 1 of the Localism Act 2011 ("the Localism Act") provides:
  161. "(1) A local authority has power to do anything that individuals generally may do.

    …".

  162. Under the heading "Boundaries of the general power", section 2 provides:
  163. "(1) If exercise of a pre-commencement power of a local authority is subject to restrictions, those restrictions apply also to exercise of the general power so far as it is overlapped by the pre-commencement power.

    (2) The general power does not enable a local authority to do –

    (a) anything which the authority is unable to do by virtue of a pre-commencement limitation, …

    …".

    The role of a core strategy

  164. The overarching principles relating to core strategies were noted by Keith J in Associated British Ports v Hampshire County Council [2008] EWHC 1540 (Admin), prominent among them the need for core strategies to operate for a long period:
  165. "21. The core strategy has an important role to play in the new framework for planning documents. That role was described in [PPS12]. ...

    22. Two features of the core strategy are particularly relevant for present purposes. First, it is intended to operate for a significant period of time. … Para. 2.10 of PPS12 says that it "should set out the long-term spatial vision for the authority's area and the strategic policies required to deliver that vision." (Emphasis supplied). … Secondly, the Core Strategy was required to "set out broad locations for delivering the … strategic development needs" (para. 2.10), but it "shall not identify individual sites" (para. 2.12). …".

    23. The strategic nature of the core strategy means that that is where "tough decisions" need to be made. …".

    Whilst those observations were made in the context of the previous version of PPS12, the basic principles have not changed.

    Submissions for the claimant

  166. Mr Jones submitted that the Council's decision on 15 December 2011 to refuse to reconsider its position on the development of the Manydown site and the decisions and actions following from that – including the decision taken by the Cabinet on 23 January 2012 – were plainly unlawful. The Council had acquired the Manydown site under section 227 of the 1990 Act, with the purpose of achieving a high quality, comprehensive housing development on the area, and it continues to hold the land for that purpose. Neither of the decisions challenged could be reconciled with that purpose. Mr Jones made six submissions to elaborate this basic argument.
  167. Mr Jones's first submission was that the Council had separated the functions of the landowner and local planning authority – erecting a Chinese wall between the two functions of the Council, and conferring the landowner functions given on the Manydown Executive Committee – but appeared to have taken this to an extreme, treating "the landowner" as if it was a body entirely separate from itself. This is obviously a misconception, for the Council is the landowner. Through this separation of the landowning and planning functions, the Council had forgotten – or ignored – the fact that the land was acquired and held for planning purposes and, in particular, that it was to be developed for housing.
  168. Secondly, Mr Jones submitted, the decision taken by the Council in 2006 was to suspend its active promotion of the Manydown land for development while work was done to overcome the infrastructural constraints on the site's development. By December 2011 that work had been completed. By then the authors of the SHLAA had concluded that the site might in principle be suitable as an urban extension. In the site assessment it had been concluded that there was no overriding constraint likely to prevent the amount of development envisaged for this land being delivered. Plainly, therefore, the time had now come when the Council had no good reason for refusing to re-consider its position on the Manydown site.
  169. Thirdly, Mr Jones submitted, it was now clear that the site assessment on which the allocation of sites in the Core Strategy would be based had excluded the Manydown site only because, in the light of the Council's own earlier decisions, it was considered not to be available for development. That view was misconceived. It was based on a basic misunderstanding, namely that the decision taken in 2006 to suspend the Council's involvement in actively promoting the land for development, and the commitment under the varied Joint Development Partnership Agreement in 2010 to the effect that the site would not be promoted for development through the forthcoming plan-making process, signified that the land was not available for development in accordance with PPS3. As a matter of fact the Manydown site was and remains available for development within the period of the Core Strategy. There was no cogent evidence that could reasonably be seen as supporting any other conclusion.
  170. Fourthly, it was plain that both the site assessment report and the reports to PIOSCOM in September 2011 and EPPOSCOM in November 2011 had misapplied government policy in PPS3. The same mistaken approach was adopted in the fuller analysis set out in the report submitted to PIOSCOM on 11 January 2012. A decision not actively to promote land for development through the LDF process is essentially different from a conclusion that the land is actually unavailable for development. The Council's analysis was clearly irrational and unlawful.
  171. Fifthly, when motion 12(4) was considered by the Council on 15 December 2011 it was clear not only that the pre-submission Core Strategy was soon to be published for consultation but also that the Council's position on the active promotion of the Manydown land might later change. It had been indicated in the report to EPPOSCOM for its meeting on 23 November 2011 that, if the Council's position changed before the Core Strategy was submitted to the Secretary of State, it would have to think again about the possibility of the Manydown site being included in the Core Strategy. At the meeting on 15 December 2011 the Council resolved to request officers to provide information to the Manydown Executive Committee on the development of the site, though without requiring it to do anything once it had that information. With the Core Strategy process now imminent this was irrational.
  172. Sixthly, both of the decisions under challenge were inconsistent with, and contrary to, the purpose for which the Manydown land was acquired. Neither was calculated to promote the objectives of the statutory provisions under which this had been done. The effect of each was to frustrate that purpose and those objectives. The Council's decision of 15 December 2011 amounted to a fetter on the proper exercise of its functions. The effect of its refusal to reconsider its position was to treat its earlier decisions as binding on it, which they were not. It now refused even to contemplate changing its stance before the pre-submission Core Strategy was issued for consultation. The decision was also unreasonable in the Wednesbury sense because the Council could itself declare the land available for development and thus overcome the one "show-stopper" it had identified. It failed to have regard not only to the purpose for which it acquired the land and the statutory provisions under which it held the land, but also the fiduciary obligations it owed to its taxpayers to use the resources available to it to the best advantage. The Cabinet's decision on 23 January 2012 was infected by the unlawfulness in the decision the Council had made on 15 December 2011. It perpetuated the misconception that the Manydown land was not available. It failed to apply the relevant guidance in PPS3. Underlying it was an irrelevant consideration – the idea that the site was not available when in truth it was. This was a material mistake of fact. And it was, in the circumstances, irrational. Had the Council directed itself as it should, in the light of the guidance in PPS3, it could not reasonably have concluded that the Manydown site was unavailable.
  173. Submissions for the Council

  174. Mr Price Lewis countered Mr Jones's argument with six submissions.
  175. He submitted first, that the Joint Development Partnership Agreement had recognized that the land might not be allocated for development. It had included a review mechanism, and had provided for the eventuality that the land might not be developed. It expressly did not affect the duties of the Council as local planning authority. Nor did it tie the two authorities to any scheme or timetable for the development of the land, the strategic objective being to improve the planning of the area by promoting development at the right time, in the right part of the site, and in the right amount. How and when the land was to be brought forward was for the two authorities to decide. The variation agreed in 2010 confirmed that it would not be promoted until the Review Date, and this was consistent with the strategic objective of developing it only when the time was right.
  176. Secondly, Mr Price Lewis submitted, since acquiring the Manydown land the Council had always conducted itself lawfully, both as landowner and as local planning authority. Creating the Chinese wall between its two functions had been a prudent thing to do. There had been no challenge to any of its relevant decisions until this claim was issued. Having promoted the land in vain through the Local Plan process in 2004 and 2005, it had responded appropriately to the Local Plan Inspector's conclusions. The Inspector had not confined himself to concerns about infrastructure, but had also referred to the harm the site's development might have for the environment. He had not identified a "show-stopper", but, equally, he had not said there was none. The decisions made by the Council in 2009 and 2010 – including its decision to suspend its active promotion of the site – were entirely reasonable.
  177. Thirdly, it should be remembered that the Council is under a statutory duty to proceed with the preparation and adoption of its LDF, under Part 2 of the 2004 Act. It is in the public interest for the Council to get on with that task. All potential participants – the claimant included – are entitled to a process that is not unduly delayed.
  178. Fourthly, the methodology for site assessment endorsed by the Council's Cabinet in March 2011 had been properly applied in a full assessment of the Manydown land. The assessment identified factors both for and against the site's allocation, two being strongly negative. The report put before PIOSCOM for its meeting on 20, 21 and 22 September 2011 set out an approach to the distribution of new development in Basingstoke corresponding to the majority of views expressed in the New Homes consultation of 2010. Most of those who had responded to that consultation had opposed the idea of a single large development on the outskirts of Basingstoke and had wanted to see allocations dispersed across the borough. The work the Council had done on the distribution and scale of allocations had informed its pre-submission Core Strategy.
  179. Fifthly, in the report submitted to EPPOSCOM for its meeting on 23 November 2011 the concepts of the site's availability and its active promotion for development were appropriately dealt with. The report explained to the members that the position the Council as landowner had taken – not actively to promote the land for development – had "contributed to the reasons" for the Council as local planning authority deeming it not to be available, albeit that no other reasons had been identified. The recommendation EPPOSCOM resolved to make to the Council, which was carried through into the resolution of the Council itself on 15 December 2011, required a report to be prepared for the Manydown Executive Committee. This was, submitted Mr Price Lewis, a perfectly reasonable decision for the Council to take. It was not deciding to set its face against the development of the Manydown land, still less to obstruct it.
  180. Sixthly, submitted Mr Price Lewis, the claim does not establish any unlawfulness in the decisions under challenge. The effect of the Council's decision on 15 December 2011 was not that the Manydown Executive Committee should never reconsider its position, but only that it did not have to do so in the manner – and within the time – specified in motion 12(4). There was no tension between that decision and the Council's resolution to seek information and advice about the potential for the Manydown land to be developed in the future. The action suggested in motion 12(4) was neither necessary nor practicable. To reject it was not unreasonable, and not inconsistent with the statutory purpose in section 226(1)(b). For the Council, as landowner, to refrain at this stage from the active promotion of the site for development was neither irrational nor unlawful in any of the ways the claimant had alleged. And for the Council, as local planning authority, to favour a pattern of development that did not involve the extension of Basingstoke by a single major development, and to go to consultation on that basis, was also perfectly lawful. Once adopted, the Core Strategy will be kept under review, as government policy requires. Mr Price Lewis submitted that none of the other allegations of public law error advanced on behalf of the claimant could be sustained. He rejected them all.
  181. Mr Price Lewis also submitted that under the new power provided in section 1 of the Localism Act the Council enjoys the general power of competence to do anything that individuals generally may do. There is no relevant pre-commencement limitation on that general power within the meaning of section 2(2) of the 2011 Act. A company or an individual may choose whether, when and how to promote land for development. On a broad view of the scope of the new power, it would extend to the functions of a local authority as a landowner. Therefore, in its dealings with the Manydown land, the Council was no less free to act as it wished than a company or an individual would have been.
  182. Mr Jones's response to those submissions was simple. In the first place, the general power of competence in section 1 of the Localism Act was not the power under which the Manydown land was acquired or held. Secondly, and obviously, the Council was not purporting to act under that provision when it made the decisions challenged in this case. The power only came into effect on 18 February 2012, and could not cure any unlawfulness arising from actions taken before then. Thirdly, once land had been acquired for a particular purpose under a particular statutory power – in this case under a provision directly aligned with the power to acquire land by compulsion – it was unconscionable to invoke section 1 of the Localism Act in support of the contention that the land could be used for another purpose entirely. The Council's argument was misconceived.
  183. Discussion and conclusion on issue (2)

  184. In my judgment, there are four main considerations to be borne in mind in deciding this issue.
  185. In the first place, the Manydown land was acquired by the Council, and is still held by it, under its statutory planning powers. When the land was acquired the "overall strategic objective" set out in the Joint Development Partnership Agreement (in clause 7.1) was to ensure "the provision of high quality comprehensive development with public facilities at the right time in the right place and in the right amount". As Mr Price Lewis acknowledged (in para. 12 of his skeleton argument), "the strategic objective [was] to improve the planning of the area by bringing (part or all of) the site forward at the right time and in the right amount". If – as Mr Price Lewis submitted and I accept – the land was acquired under the power in section 226(1)(b) of the 1990 Act, it is necessary to understand what this meant. As Mr Jones pointed out, the relevant statutory imperative was not simply that the land was required "in the interests of the proper planning" of the area, but rather that it was required "for a purpose which it is necessary to achieve in the interests of the proper planning" of that area (my emphasis). In this instance the necessary purpose was to promote housing development on the land. This was the fundamental objective of the Council's acquisition of the land. And it remained the purpose for which the land was held. The land has never been appropriated by the Council for any other purpose (under section 232(1) of the 1990 Act or section 122(1) of the Local Government Act 1972).
  186. Secondly, although in 2006 the Council had suspended its active promotion of the site for development after failing to secure its allocation as a Major Development Area in the local plan, by the end of 2011 events had moved on. The site's suitability for development had been assessed again. Issues relating to road capacity, drainage and water supply had been resolved, or at least refined.
  187. Thirdly, there was, however, a question about the availability of the site for development. The site assessment on which the pre-submission draft of the Core Strategy was to be based had excluded the Manydown land, apparently because, in the light of decisions the Council itself had made, it was thought not to be available for development.
  188. Fourthly, in the resolution it made on 15 December 2011, the Council acknowledged that its position on the promotion of the site might change. It asked officers to report to the Manydown Executive Committee on several aspects of the land's potential for future development.
  189. Those four considerations must now be looked at more closely.
  190. In its evidence and submissions in these proceedings the Council did not – and clearly could not – dispute that it continues to hold the Manydown land for the purpose of promoting major residential development upon it. No other relevant planning purpose has been identified. On any view, if development were to come forward on the site, both its scale and its spread would be considerable. In any development plan-making process, therefore, the site would clearly be regarded as being, potentially at least, of strategic importance. Its allocation and its subsequent development, in whole or in any substantial part, would have significant consequences for the shape of the settlement at Basingstoke in the first part of the 21st century, and for many years beyond. Decisions about the future of this land would have implications for competing strategic sites, and for the pattern of growth in the town as a whole. It is not for the court to consider those matters, or to express any view upon them. They lie within the province of planning judgment.
  191. Conscious of its separate functions as landowner and as local planning authority, and of the need to avoid any real or perceived conflict between the two, the Council put up a Chinese wall. It conferred on the Manydown Executive Committee the responsibilities it bore as effective owner of the Manydown land. But, as Mr Jones submitted, the structure of decision-making created by the Council to ensure that it would discharge its responsibilities both efficiently and properly could never displace the basic fact that it acquired this land, in the public interest, for a planning purpose. This underlying purpose remains the basis for the Council's ownership of the land. It endures in spite of, and has not been extinguished by, any of the various resolutions the Council has made since the last development plan process came to an end, by which it has suspended its active promotion of development on the site.
  192. The decision taken by the Council in 2006 to halt its active promotion of the site's development was explicitly a temporary, not a permanent decision. It was a decision ostensibly taken for reasons congruent with the continuing planning purpose for which the land was held. It envisaged the Council later resuming a proactive approach. At that stage it was clear that the infrastructural constraints to major housing development being delivered on the site would have to be overcome. Progress would not be possible until this had been done.
  193. However, by the time the Council met on 15 December 2011, it seems clear that the work that had been undertaken to address outstanding issues had been effective. It had been enough to justify the conclusion in the SHLAA that the site might be suitable for development as an urban extension of Basingstoke. It had warranted the conclusion in the site assessment that the necessary infrastructure could be provided, and that there was no overriding constraint on the site's deliverability. Thus, as Mr Jones submitted, the pretext for the Council's "time-out" in 2006 – its pause in the active promotion of development on the site – no longer applied. No insuperable obstacles to development remained, apart from the site's perceived "current unavailability for development which would prevent it being developed".
  194. It is important to see the essential difference between the concept of a site's active promotion for development, on the one hand, and the concept of its availability for development, or for allocation, on the other. These two concepts are not the same.
  195. In PPS3 deliverability encompasses availability, suitability and achievability (para. 54). For a site to be deliverable, it must be – at the time when the relevant local development document is adopted – available, suitable and achievable (ibid.). Thus a particular site might be available for development, but not deliverable in the sense contemplated by PPS3, either because it is not suitable as a location for development, or because there is not a reasonable prospect that development will be delivered on it within a reasonable time – defined in paragraph 54 of PPS3 as being five years – or both. Paragraph 55 of PPS3 adds the requirement to look beyond the five-year horizon; local planning authorities are enjoined to identify "a further supply of specific, developable sites for years 6-10 and, where possible, for years 11-15".
  196. Whilst the owner of a site might not be actively promoting its development – even an owner whose purpose in ownership is to do just that – this does not mean that the site is necessarily unavailable, or that it will not become available within the period of the plan in question. The site might well be available to somebody who is prepared actively to promote its development. Or it might be likely to become available once somebody has taken the initiative of getting it allocated. It is wrong to think that a site is unavailable simply because its owner is not, for the moment, taking active steps to bring it forward for development.
  197. If the Council is disposed to be passive rather than active at this stage, that does not matter. There is, so far as I can see, nothing to suggest that it would be unwilling to release the Manydown land for development if the site's allocation in the Core Strategy were to find favour with the Inspector who conducts the examination in due course. To adopt that position would, I think, be quite impossible to square with the purpose for which the land was acquired.
  198. In any event, it was, I believe, a fundamental misconception on the part of the Council to regard the decision it had taken in 2006 to suspend the active promotion of the Manydown site for development, and its subsequent decisions and actions to the same effect, including the variation of the Joint Development Partnership Agreement in 2010, as meaning that at the end of 2011 the site must be regarded as being unavailable for development. This would have been a misconception if the Council as landowner had never intended it to be thought that the site really was unavailable. And it would have been a misconception nonetheless if the Council had persuaded itself that the site was not available because it was not being promoted for development. Either way, it was a misconception.
  199. All of this needs to be seen in the context of the Government's guidance in PPS12, and, in particular, the longevity of a core strategy. The identification in a core strategy of strategic sites, which are likely to take a long time to promote for development, is an essential feature of this tier of the modern development plan. By their very nature, such sites will often present challenges in their being assembled, serviced and built upon in an orderly sequence of phases. Evaluating the respective and relative merits of rival sites for allocation is a necessary and normal exercise in the fashioning of a core strategy. It is a task that a local planning authority should be able to perform without creating for itself, or having created for it, artificial or unreal constraints. Paragraph 4.38 of PPS12 requires local planning authorities to "seek out and evaluate reasonable alternatives promoted by themselves and others". It cautions against "inventing alternatives if they are not realistic". A corollary of this must surely be that authorities should not disinvent alternatives that are realistic.
  200. Without venturing into the planning merits at all, one can see that unavailability is not a real constraint impeding the consideration of the Manydown site, along with others, in the Council's Core Strategy process. There may be other considerations weighing against the site's development. There may prove to be compelling planning reasons against its allocation. It might emerge as an appropriate allocation at this stage; it might not. A large site in single ownership, and indeed in the ownership of a public body that has acquired it with the express intention of promoting major housing development on it, can boast at least that attribute in a plan-making process. Contrary factors might outweigh this advantage. But these are planning issues. Deciding them is the business of the process itself.
  201. I think Mr Jones was right to submit that when the Council met on 15 December 2011, and when the Cabinet met on 23 January 2012, there was no rational basis for concluding that the Manydown land was not available for development. It seems to me, as Mr Jones submitted, that neither PIOSCOM, in September 2011, nor EPPOSCOM, in November 2011, had comprehended the true sense of the Government's advice as to availability and deliverability in PPS3. And neither committee had evidently understood the crucial distinction between the Council as landowner deciding it would not actively promote the Manydown land for development through the Core Strategy process and the Council as local planning authority being at liberty to consider the site either as available for development within the first five years of the 15-year plan period or likely to become so in the remaining 10.
  202. Mr Price Lewis pointed to the fact that in March 2011 the Council's Cabinet had endorsed a methodology for the assessment of sites, and that the Manydown land had been considered in that assessment. And, it is true, there were considerations telling against the site's allocation, including objections relating to landscape character, biodiversity, the coalescence of settlements, archaeology, heritage assets, the loss of high quality agricultural land, various shortcomings in existing infrastructure, and so forth. It is also true that when PIOSCOM considered the appropriate distribution of development around Basingstoke, at its meetings in September 2011, it noted that many of those who had responded to the New Homes consultation in 2010 had expressed strong opposition to the principle of a single large development being promoted on the outskirts of Basingstoke, and that many had favoured the principle of dispersing development to other parts of the borough. But these, again, are planning issues. They are matters that belong in the plan-making process, not matters that should be excluded from it.
  203. It was a strong theme in Mr Price Lewis's submissions that the Council had not set its face against the development of the Manydown land. Mr Price Lewis emphasized that there had never been any specific, still less binding, timetable for the Council – or the Council and County Council together – to achieve development on the site, either in the long lease entered into by the Council, or in the Joint Development Partnership Agreement. There was, Mr Price Lewis submitted, nothing inconsistent between the position now adopted by the Council and the site eventually being actively promoted for development in accordance with the purpose for which it had been acquired. For the Council to seek information and advice relevant to the potential development of the land was not inconsistent with the statutory purpose of its acquisition. All of these submissions are fair, so far as they go. But they do not remove the difficulty the Council faces in these proceedings, which, in my view, lies in the difference between the availability of the land and its active promotion for development. If, as the Council's evidence suggests, its true position is that the Manydown site is not unavailable, it is hard to see how it could have rejected the finding in the SHLAA Timeline document, which was before EPOSCOM on 23 November 2011, that the site was included in the evidence base for the LDF "in light of the fact there was a reasonable prospect that the site would be available for and could be developed at a specific point in the future (definition of availability from PPS3)".
  204. For all those reasons I believe there is force in Mr Jones's submission that, given the statutory power under which the Manydown land was acquired and continues to be held, the notion that the site is not available for development lacked any evidential or logical basis.
  205. I think Mr Jones was right to submit that the Council's rejection of motion 12(4) at its meeting on 15 December 2011 has to be seen in the context of the resolution it actually made. It resolved to request officers to provide information to the Manydown Executive Committee, so that that committee would be informed on relevant aspects of the site's development. But it did not resolve that the Manydown Executive Committee, having received the information the officers were to provide, ought then to act upon it. Implicit in the resolution was that any decision the Manydown Executive Committee might make could not undo the Council's position that the Manydown site should not be promoted for development until after the Core Strategy had been adopted.
  206. Mr Price Lewis said the effect of the Council's decisions was two-fold: first, the Manydown Executive Committee was not required to reconsider the promotion of the land for development on the basis and within the time frame specified in motion 12(4); but second, the officers were, nevertheless, required to report to the committee on the development potential of the site. True to that resolution, the officers duly prepared a report for submission to the Manydown Executive Committee at its meeting on 20 March 2012. Mr Price Lewis urged me to accept that the resolution made by the Council was not necessarily inconsistent with its rejection of motion 12(4). The motion contained a definite timetable, whereas the resolution did not. The motion sought to impose on the Manydown Executive Committee a deadline, namely the next meeting of PIOSCOM or 11 January 2012, whichever was the earlier. But, as Mr Jones said, the point of this was to make sure that the Council's reconsideration of its decision to suspend active promotion of the site for development was not put off until it was too late for the planning merits of the site's allocation in the Core Strategy to be considered. By contrast, the resolution made by the Council set no timetable for the officers to report to the Manydown Executive Committee, and did not stipulate when, if at all, the committee was to come back to the Council with a concluded view of its own. There was, therefore, a real and material difference between the resolution made by the Council and the motion it chose to reject. Mr Price Lewis may have been right in submitting that there was no logical conflict between the two parts of the Council's decision, and that the time-frame proposed in motion 12(4) was uncomfortably tight. In my judgment, however, these points do not remove the patent inconsistency between the Council's ownership of the land for the purpose of promoting development and its persistence in seeking to prevent the site's allocation in the Core Strategy. It was to this inconsistency that motion 12(4) was clearly directed.
  207. In substance, the motion sought to oblige the Council to reconsider its stance on the promotion of the Manydown land for development before the Core Strategy process got under way. In form, it sought a specific commitment to do that before a specified date. Whether or not this was possible in the timescale sought by the motion, it could have been accommodated in a modestly revised programme for the Core Strategy process. Undue delay to the adoption of the Core Strategy could have been avoided. And the process would not have had the spectre of future litigation hanging over it.
  208. The report to EPPOSCOM for its meeting on 23 November 2011 had indicated that, if the Council's position changed before the Core Strategy was submitted to the Secretary of State, it would have to reassess the Manydown site as a potential candidate for inclusion in the Core Strategy (para. 10.1 of the report). The same proposition was to be repeated in the report to PIOSCOM for its meeting on 11 January 2012 (para. 4.31 of the report). Hence there was both a logical basis for motion 12(4) and a provenance in advice given to the Council's committees. The motion did not seek to dictate an outcome to the Manydown Executive Committee in its review of the Council's position, merely that there should be a timely consideration and a meaningful outcome to it. The time-scale was important. Delaying the consideration of a question until the question became irrelevant because the time for launching the Core Strategy consultation had passed would be to negate the point of asking the question in the first place.
  209. I therefore accept Mr Jones's submission that it was unsatisfactory to require the officers to provide information to the Manydown Executive Committee on the development of the Manydown land without requiring the committee to reach a view on that information in time for the Council to reconsider its stance on the promotion of development before the Core Strategy process began.
  210. Was it also unlawful? In my judgment, it was. I cannot see any escape from the conclusion that the Council's decision was not only inconsistent with the purpose for which the Manydown land was acquired and held, but plainly contrary to that purpose. It thus offended the principle in Padfield. It was not calculated to promote the policy and objects of the statutory provisions underpinning the acquisition of the site (see the judgment of Laws LJ in ex parte Halls, at para. 36). Though Mr Jones's submission that the Council effectively decided "just to sit on the land and ignore the LDF process" (at para. 152 of his skeleton argument) may have been an exaggeration, the alternative submission that the Council was seeking to ensure that the land was excluded from consideration in the Core Strategy process seems a reasonable inference to draw from the facts. In both its submissions and its evidence in these proceedings the Council has been at pains to impress on the court that it has not turned its back on the Manydown land but is considering the site's potential of for future development, as the resolution of 15 December 2011 makes clear. It says that the process for revisiting its earlier decisions is already in train. This may be so. However, the process by which the Council is to revisit its earlier decisions has been deliberately put on a timetable outside and beyond the process in which the Core Strategy will be evolved. The Council has, in effect, sought to use its control of the Manydown site as a means of delaying the development of land that was acquired, with public money, for the express purpose of promoting development. That is not lawful.
  211. Mr Jones submitted that the decision taken by the Council on 15 December 2011 was such as to fetter its discretion to revisit earlier decisions and to act in the light of circumstances as now they were. I think it was. Its effect was to prevent the Council from considering whether to end its self-imposed moratorium on the promotion of development on the Manydown land in time to seek the site's allocation in the Core Strategy. If the Council's powers as local planning authority were left unrestrained by the decision, its powers as landowner plainly were not.
  212. Mr Jones argued that the Council's decision was also irrational. If an assumption behind it was that the Manydown land was, and should remain, unavailable for development, I think Mr Jones was right. The site's unavailability was, in reality, no more than a self-fulfilling prophecy. If the site was regarded by the Council as being unavailable for development, this was only because the Council itself had decided to treat it as if it were. And it had decided to do this only because it had suspended its promotion of the site for development. At any rate, it should have seen that this was an impediment it could remove, and, with it, the only remaining barrier to its promotion of the site for development. If, however, as Mr Price Lewis submitted, the Council did not misdirect itself as to the meaning of availability in government policy in PPS3, there was, so far as I can see, no rational basis for regarding the land as unavailable, whatever its merits as an allocation for development might be.
  213. It also seems to me that the decision made by the Council on 15 December 2011 was flawed by a failure to have regard to the purpose for which the Manydown land was acquired. This remained a relevant consideration, and an important one, notwithstanding that the Council was under no specific obligation to promote the site for development at any particular time, or for any particular scheme. The evidence before the court, including the transcript of parts of the debate that took place at the meeting, does not convince me that the Council focused on that consideration. Had it done so, I think its decision might well have been different.
  214. Finally, I think the Council's reliance on section 1 of the Localism Act was misplaced. As Mr Jones submitted, that was not the power under which the Manydown site was acquired, nor the power under which the Council had been managing the land. And, plainly, the Council was not purporting to act under section 1 of the Localism Act when reaching either of the two decisions challenged in these proceedings. That provision is not available to rescue an authority from the consequences of unlawful actions taken before it came into effect. And in my judgment it would not be right for this new power to be relied upon to justify an authority's use or management of land inconsistently with the statutory purpose for which that land was acquired.
  215. I turn to the Council's Cabinet's decision of 23 January 2012. In my judgment, in re-affirming its intention to proceed with the pre-submission Core Strategy, and approving that document for consultation in a period running from 10 February 2012, on the basis that the Manydown land was not available for development within the meaning of that concept in PPS3, the Cabinet took an unlawful decision. I accept Mr Jones's submissions to that effect.
  216. It is not necessary to repeat everything I have said about the Council's decision of 15 December 2011. Essentially the same analysis applies. The abiding problem was this. Either the members confused the concept of the site's availability with the concept of its active promotion for development, or, if they did not, there was no rational basis for considering the land to be unavailable, or unlikely to become available if it commended itself to the Core Strategy Inspector as a strategic allocation. Whichever way one looks at it, therefore, the Cabinet's decision was flawed.
  217. Once again, the unlawfulness in the Council's decision-making manifested itself in several ways.
  218. In the first place, as Mr Jones submitted, the decision taken by the Cabinet on 23 January 2012 was not taken in a vacuum. It was influenced by previous decisions, including the Council's decision on 15 December 2011 to reject a timely reconsideration of its position on the Manydown land, and it was infected by the unlawfulness in that decision. In any event, the same misconceptions were repeated. Even if the decision of 23 January 2012 had stood on its own, I would have found it unlawful.
  219. Secondly, as I have said, the idea that the site was not available for development, and for allocation in the Core Strategy, betrayed a failure to understand the Government's relevant guidance in PPS3, or a failure to get to grips with the question effectively posed in that guidance, and thus a failure to apply government policy as it should be applied. There has been no dispute as to the meaning of the policy itself.
  220. Thirdly, the illusion that the site was not available, when in fact it was, was an immaterial consideration, which the Council's Cabinet ought not to have taken into account.
  221. Fourthly, there was here, therefore, an error of fact in the sense detected by the court in the Haringey case, namely a mistake of fact as to the Council's true position (see para. 16 of the judgment of Sullivan J).
  222. And fifthly, the Cabinet's decision was irrational. If it had directed itself properly on the facts before it, the Cabinet could not reasonably have reached the conclusion that the Manydown site was not available. There was no logical or defensible basis for the decision it took. If the Council's true position was that, despite the continuing suspension on the site's promotion for development, it remained available for development, and that there was no reason why it should not come forward for development in the course of the Core Strategy period, the Cabinet appears not to have appreciated that this was so. Mr Jones submitted that it was perverse for the Council to press ahead with the consultation on the pre-submission Core Strategy knowing that the Manydown Executive Committee was to receive a report on the development potential of the Manydown site. I do not think that this in itself can be stigmatized as perverse. As I see it, the unreasonableness, and the fatal flaw, lay in two decisions – first the Council's and now, in its turn, the Cabinet's – whose intent apparently was to foreclose the consideration of the Manydown site in the Core Strategy process. In the circumstances as they were in December 2011 and January 2012, neither decision, in my judgment, was legally sound.
  223. It follows that permission to apply for judicial review must be granted, and that the claim must be upheld.
  224. Issue (3) – Remedy

    Submissions for the Council

  225. Mr Price Lewis submitted that what the claimant is really seeking is the inclusion of the Manydown land in the adopted Core Strategy. The claimant will have ample opportunities to make the case for that outcome, both by making representations at the consultation stage and by appearing before the Inspector who will in due course conduct an independent examination of the draft Core Strategy. Whether the site should be allocated for development is a question that can and should be considered through that process. That is the right and only place in which to consider the proper planning of the Council's area. And for the claimant it would be a convenient and effective means of redress. In considering the soundness of the Core Strategy it will be open to the Inspector, applying the approach indicated in PPS12 (in paras. 4.48 to 4.52), to consider whether the Manydown land ought to be allocated as a strategic site for development. If the claimant thinks it will be help its cause to rely on any observations made in the court's judgment in these proceedings, it will be able to do that. This argument, as Mr Price Lewis acknowledged, merges with the Council's submissions made on the preclusive provision in section 113 of the 2004 Act.
  226. Submissions for the claimant

  227. Mr Jones submitted that participation in the consultation and examination stages of the Core Strategy process is, for the claimant, no alternative as a remedy to the court determining whether the decisions under challenge are unlawful. The Council had made it clear that it will not resile from its position unless required to do so. Consultation would not achieve that. Neither would the examination of the draft Core Strategy. The Inspector would concentrate on whether the strategy put forward was sound. And there could be no guarantee that he would be prepared to consider objections inviting him – or that he saw as inviting him – to investigate the Council's conduct as landowner, or go into allegations of unlawfulness. In 2005 the local plan Inspector had refused to consider the lawfulness of the Council's decision-making in that process, observing that there were other procedures for scrutinizing the probity of a Council's decisions. Establishing a fair and transparent process at this stage would be of benefit to everyone involved, not just the claimant but the Council and other parties too. To add the Manydown site to the Core Strategy at a late stage would be bound to call for other elements of the strategy to be removed or reconsidered, which would be inconvenient and likely to cause delay. In any event, submitted Mr Jones, the fact that there is – or might be – another effective remedy is not, in principle, a reason for the court to withhold relief in a claim for judicial review.
  228. Discussion and conclusion on issue (3)

  229. I do not accept that I should withhold relief for the unlawfulness I see in the decisions before the court.
  230. I think Mr Price Lewis's argument on alternative remedy proves too much. If the claimant's true remedy is to be found in the Core Strategy process, it is of paramount importance that the proceedings in that forum are not distorted before they begin.
  231. Although Mr Price Lewis accepted that the Inspector might decline to entertain objections based on allegations of unlawfulness in the Council's conduct as landowner of the Manydown site, as did the Inspector in the local plan process, he did not concede that this would prevent the planning merits of the proposed allocation being fairly considered. I accept, of course, that nothing the Council has so far done would shut out the claimant's participation in the Core Strategy process. I accept too that the conclusions I have reached in this judgment, whilst they do not trespass on the planning merits, inevitably bear on the issues the Inspector will have to consider. I do not discount that. Nor do I seek to prescribe the Inspector's agenda. However, I accept Mr Jones's submission that the claimant's participation in the Core Strategy process does not afford it an alternative procedure by which to have the lawfulness of the Council's conduct as landowner of the Manydown site subjected to independent scrutiny.
  232. If relief is not granted, it seems unlikely that the Council will relent and consider its position afresh. Above all, however, the Council's conduct as landowner is not, in itself, a matter for consideration in the plan-making process. The Inspector will have to judge whether the Core Strategy itself is sound, not whether the prior decisions of the Council as landowner were lawfully taken. And as Mr Jones submitted, until the Council as landowner has properly addressed its responsibilities in that role, and has done so with a firm grasp of the statutory purpose for which it acquired the Manydown land, the claimant will face an unfair disadvantage as a party to the Core Strategy process. Without the intervention of the court, there seems little prospect of that disadvantage being removed in time for the Manydown site to be effectively and fairly considered in the consultation and subsequent stages of the Core Strategy process.
  233. In my judgment, therefore, the unlawfulness in the decisions challenged in these proceedings can and should be addressed by suitable relief. Both quashing and mandatory orders are, in principle, appropriate. The remedies must be sufficient to compel a reconsideration of each of these two decisions, within a reasonable time, but without dictating an outcome that goes further than it should, and without causing needless delay to the Core Strategy process. It is necessary to require the Council to do two things: first, to reconsider its position on the promotion of the Manydown land in the light of what I have said about its responsibilities as landowner, and second, to reconsider the form of its pre-submission Core Strategy in the light of what I have said about its responsibilities as local planning authority. The effect of the order I intend to make should not be misunderstood. It is not to force the Council as landowner to promote the Manydown land for allocation in the Core Strategy. Nor is to force the Council as local planning authority to support such an allocation, or to depart from the strategy it has chosen. Rather, it is to ensure that neither as landowner nor as local planning authority, and neither by anything it does nor by anything it fails to do, will the Council prejudice its own Core Strategy process.
  234. Overall conclusion

  235. For the reasons I have given, I grant permission to apply for judicial review, and the claim itself succeeds. I shall hear counsel on the appropriate form of the order.


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