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Cite as: [2013] EWHC 190 (Admin)

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Neutral Citation Number: [2013] EWHC 190 (Admin)
Case No. CO/336/2012

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

Royal Courts of Justice
Strand
London WC2A 2LL
Friday, 25 January 2013

B e f o r e :

HIS HONOUR JUDGE SEYS-LLEWELLYN QC
(Sitting as a Deputy High Court Judge)

____________________

Between:
ARUN DISTRICT COUNCIL Claimant
v
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT Defendant
GREEN LODGE HOMES LLP Interested Party

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

Miss A Williams (instructed by Arun District Council) appeared on behalf of the Claimant
Mr D Blundell and Mr R Moules (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Mrs H Townsend (instructed by DMH Stallard) appeared on behalf of the Interested Party

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. THE DEPUTY JUDGE: The claimant in this section 288 appeal is Arun District Council. The developer applied to Arun District Council for planning permission for a development of 39 dwellings at Jenkins Yard, Ferring. That is a vacant site and has no lawful use except for a 10 metre strip with lawful use as a builder's yard. On 27 October 2010, there was a statutory hearing of the developer's appeal against the claimant's refusal of planning for that site. By decision of 22 November 2010, the appeal was unsuccessful. The cases presented by the claimant and the developer at that appeal and the subsequent decision issued by the Inspector who heard the appeal were based on their common understanding that the South Eastern Plan (which I will refer to as "the SEP") had been revoked by the Secretary of State and was no longer part of the development plan.
  2. The decision of the Secretary of State to revoke was quashed on judicial review. Therefore, the SEP had in fact been part of the statutory development plan at the time of the hearing. On challenge, therefore, by the developer to the Inspector's decision in this court, the Secretary of State conceded that because the Inspector had failed to take into the account that the SEP formed part of the development plan at the date of the decision, the decision should not be allowed to stand and by a consent order the Inspector's decision was quashed in its entirety. The matter was accordingly remitted for reconsideration in full by a new Inspector appointed by the Secretary of State.
  3. The second Inspector allowed the appeal and granted planning permission. The claimant local authority brings this appeal against the Secretary of State under section 288 of the Town and Country Planning Act 1990. The developer appears as an interested party. Counsel were Miss Williams for the claimant, Mr Blundell for the Secretary of State, and Mrs Townsend for the interested party.
  4. The two questions which arise in this appeal are as follows.
  5. The first question is, if the decision of the Inspector on appeal expresses findings or conclusions but the decision is quashed on judicial review, is it an error of law for the second Inspector who deals with the remitted appeal to make no reference to the findings and conclusions of the first Inspector? More fully, if the decision of the first Inspector on appeal expresses findings or conclusions on one of the two issues which are of central importance to the decision by the second Inspector, but the first decision has been quashed on judicial review, is it an error of law to make no reference to that finding or conclusion of the first Inspector and/or not to give reasons for arriving at different findings or conclusions?
  6. The second question arising in this appeal is as follows. In a decision by the Inspector on appeal in the present case, has there been a failure to give adequate reasons for the conclusion that she attached only "limited weight" to the fact that the Localism Act 2011 received Royal Assent on 15 November 2011 and makes statutory provision for the Secretary of State to revoke by order the whole or any part of a regional strategy? More fully, in a decision where the Inspector relied in part on the fact that the SEP requires completion of an annual average of a stated number of dwellings in the Arun district, which the claimant accepted it could not demonstrate, and where however the claimant made clear that if the SEP is revoked it intended to put in place a considerably lower target than that currently required by SEP, was it an error of law for the Inspector to attach only "limited weight" to the fact that the Localism Act 2011 received Royal Assent on 15 November 2011 and makes statutory provision for the Secretary of State to revoke by order the whole or any part of a regional strategy?
  7. In the present appeal, the claimant says that two issues were central to the respective cases before the second Inspector and decision by her:
  8. 1. Whether development of the site should not be permitted on the ground that it would conflict with the maintenance of the strategic gap between Ferring and the next settlement under the development plan.
  9. 2. The issue of housing supply. On the one hand, under the existing regional strategy, (SEP), the decision maker "should consider favourably" planning applications for housing where the local planning authority could not demonstrate an up-to-date given number of deliverable sites in the area, and the claimant accepted it could not demonstrate that number. (The SEP required completion of an annual average of 565 dwellings in the Arun district between 2006 and 2026, to which the 39 proposed would, if planning permission were given, contribute). On the other hand, as the second Inspector recorded in her decision letter, it was the stated intention of the Government to lay orders in Parliament revoking the existing regional strategies and "the Council has made it clear that if the SEP should be revoked, it intends to put in place a considerably lower target than that currently required by the SEP." (decision letter paragraph 23).
  10. As to the first issue, the strategic gap issue, the second Inspector stated this in her decision letter:
  11. "11. The appeal site is already surrounded on three sides by existing development, and in my judgment, consequently makes very little current contribution by the role by the Strategic Gap. [Some further detail is given].
    12. I consider that in this context, the proposed residential development of the appeal site would not undermine that fundamental objective of maintaining a clear distinction between settlements [and then she gives some further detail].
    13. The Council expressed concern that if I were to allow this appeal, it might be argued as setting a precedent for development of other sites within the Strategic Gap. But such an argument could only have any merit in respect of sites identical to the appeal site, in terms of being already surrounded by existing or permitted proposed development. In those circumstances, it is difficult to see how development would erode the function of the Strategic Gap. In any event, each proposal for new development must be assessed on its own merits, and should the Council conclude that the details of any future proposal (even on a similar site) would compromise the objectives and integrity of the Strategic Gap, it would remain open to it to refuse planning permission for that reason."
  12. As to the second issue, namely housing supply, having identified the stated future intent of the Council to put in place a lower target if the SEP were revoked, the second Inspector stated this in her decision letter, at paragraph 24, which I will read at this point in full:
  13. "24. I attach only very limited weight to these statements of future intent [of the local authority if the SEP were revoked]. I attach slightly more, but still limited, weight to the fact that the Localism Act 2011 received Royal Assent on 15 November 2011, and makes statutory provision for the Secretary of State to revoke, by order, the whole or any part of a Regional Strategy. It is the Government's intention to lay orders in Parliament revoking the existing Regional Strategies (including the SEP) as soon as possible, but this is subject to the outcome of the environmental assessments currently taking place, on which consultation will close on 20 January 2012. Decisions on the revocations will not be made until the Secretary of State and Parliament have had the opportunity to consider the outcome of the environmental assessment process."

    That decision letter is one of 1 December 2011.

  14. As to the general approach on an appeal under section 288, there is no dissent between counsel. For the record, therefore, I record that it was set out by Miss Williams in her skeleton argument in these succinct terms:
  15. "The Court may quash a decision by the Secretary of State under section 288(a)(i) of the 199 Act where he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa.
    Where the Secretary of State has failed to consider relevant considerations or taken into account irrelevant considerations a judge is entitled to hold a decision invalid where the consideration was 'fundamental to the decision,' or that it is clear that there is a real possibly that the consideration of the matter would have made a difference to the decision [that being a principle contended to be in play in this case], Bolton Metropolitan Council [perhaps citation is unnecessary].
    Where the Secretary of State has failed to give intelligible and adequate reasons for a decision, a challenge can succeed if the party aggrieved can satisfy the court that he has been substantially prejudiced by the failure to provide an adequately reasoned decision - South Buckinghamshire County Council v Porter [citation surely unnecessary], per Lord Brown."
  16. By way of background in this case and on this appeal, I note that the claimant lays stress on the fact that in its own statement before the second Inspector, its consultant Mr Gardner identified six findings by the previous Inspector, Mr Dobson, and at 3.19 of his statement said this:
  17. "Mr Dobson thus gives six very clear reasons why the Strategic Gap, despite the 'development' already permitted which has or will [have] taken place, remains of a character to satisfy and perform the proper and adequate function of maintaining the gap between and distinctiveness of Ferring and East Preston, which would be harmed if development on the appeal site were to be permitted. Neither the reintroduction of the SEP nor the High Court decision affect those findings and they remain entirely applicable to the determination of the current appeal."

    Helpfully, the skeleton argument for the claimant of Miss Williams summarises each of those six findings, and I adopt her summary:

    "1. Whatever the land use and character of the adjoining sites, the appeal site itself is, and always has been, almost entirely open and undeveloped, preserving a clear distinction between it and the suburban parts of Ferring to the East.
    2. None of the adjoining sites contains relatively high density urban development such as the appeal proposal.
    3. The grant of planning permission at Country Fayre does not justify development on the appeal site.
    4. Allowing the appeal would set a precedent for infilling and erosion of the Strategic Gap to the north, undermining its function.
    5. The existence of some built development in the Strategic Gap cannot logically justify further development within the Gap.
    6. An Inspector is not in a position to move the eastern boundary of the Strategic Gap to coincide with the western boundary of Country Fayre as that can only be done as part of the Arun Core Strategy."
  18. In this appeal I think it helpful to make four preliminary observations:
  19. 1. It is common ground that the second Inspector was required to consider the matter afresh. She stated in her decision letter at paragraph 4:

    "My remit is therefore to consider the appeal afresh, on the basis of all the evidence that was before the Inspector who conducted the First Hearing, and the additional information that has been provided since the quashing of his decision. An important point to stress is that I am obliged to determine the appeal on the basis of the policy context as it stands at the date when I make my decision, and not as it stood when the application was first submitted, or the appeal first made".

    Here, no complaint is made by the claimant of that formulation. In argument, the claimant accepts that the appeal was to be considered afresh and that the second Inspector was not bound to accept the findings and conclusions of the first Inspector.

    2. It is common ground that the first appeal decision was quashed in its entirety.

    3. There was no agreement before the second Inspector by the parties that any finding or conclusion of the first Inspector should stand.

    I should perhaps record that the Planning Inspectorate had written to the parties inviting further representations on any material change in circumstances which may have arisen since the original appeal decision letter and the Planning Inspectorate emailed in advance of the appeal as follows, which I can take from Mr Gardner's own statement in the remitted appeal at 1.12, page 37 of the bundle before me:

    "PINS [the Planning Inspectorate] emailed again on 19 July as follows
    I can confirm the appointed inspector will wish to hear the parties cases afresh, having regard to the current circumstances/considerations, on which basis his/her decision is required in law to be made. Hence, I can confirm that the appeal does now fall to be reconsidered de novo. Any new material/change in circumstances since the original decision will be factored into the re-determination. Please accept my apologies for any uncertainty; the wording in our letter dated 17th June is now being reviewed.
    I would encourage both you and the LPA [local planning authority] to come to an agreement on any aspects of the original appeal that are not in dispute so the inspector does not have to go over these issues. If you could provide a joint submission as to the grounds which you feel do not need to be discussed that would help the inspector."

    I should perhaps record that the developer interested party did submit to the second Inspector an assessment of visual character and the like, to which I believe I need make no further reference here.

    4. In answer to my question, Miss Williams accepted that the second Inspector did consider in one way or another each of the six matters which were the subject of findings to which the local authority drew attention from the first decision but not in the detail set out by the first Inspector.

  20. With that introduction, I turn to the matters for my decision.
  21. Ground 1: failure to take account of a material consideration.
  22. The claimant accepts that it would have been open to the second Inspector at a re-hearing of the appeal to acknowledge the findings of the first Inspector and, if appropriate, to reject those findings explicitly and substitute her own reasoned views. She contends that the second Inspector failed to take account of a material consideration, in that there was no reference to the findings and conclusion of the first Inspector. To quote her skeleton at paragraph 18:
  23. "It is therefore impossible to know whether the Second Inspector turned her mind to those conclusions, whether she accepted that they were a material consideration, how much weight (if any) she attached to them and whether she was correct to do so."

    The expressed ground of challenge is a failure to take account of a material consideration, not inadequacy of stated reasons for the conclusions formed by the second Inspector as to the strategic gap. Even if it were, the latter, as to that, in my view, it could not be sustained: (i) in the light of the fact that the second Inspector did consider in one way or another each of the six matters which were the subject of findings to which the local authority drew attention; and ii) in the light of the clear and express findings of the second Inspector in her decision letter: for brevity, since this is not a "perversity" or "reasons" challenge see the decision letter of the second Inspector at paragraph 10, 11 and 12.

  24. The claimant contends that the first Inspector's conclusion were a material consideration. First, I consider that this is wrong in law. In F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 in the House of Lords, Lord Diplock said this at page 365, letters E to H:
  25. "Under our legal system, however, the courts as the judicial arm of government do not act on their own initiative. Their jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter partes either brought by one party to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give him locus standi to initiate proceedings to challenge the validity of the instrument. Unless there is such a challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed."

    And this:

    "It would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings."

    Here, it seems to me, equally so. The decision on appeal of the first Inspector had not been quashed as to certain grounds only, but had been quashed in its entirety. The parties did not compromise the appeal under section 288 from the first Inspector's decision upon the basis that a part of it should stand, nor was there agreement before the second Inspector that any of the grounds or findings of the first Inspector should stand. I would have considered this in itself an answer to the challenge.

  26. However, I turn to a second thread developed by Miss Williams. It is this: that it was inherent in the importance of the considerations the subject matter of the conclusions and findings of the first Inspector that the second Inspector should have paid attention to it. In my judgment, the statutory framework is that the role of the new Inspector is one of redetermination, not one of review. The second Inspector was correct in the statement of her role at paragraph 4 of her decision letter, which I have read above. I respectfully consider further that it would lead to potential confusion and complexity for Inspectors on remitted appeals if as a preliminary step they have to consider which part or parts of a quashed decision might or might not be capable of being revived as a material consideration in its own right. As a minor, but perhaps relevant, consideration any different approach might, , as Mrs Townsend submits for the interested party,at least in some cases inhibit sensible settlement of a challenge, since a party might rather see a claim through for decision on appeal under section 288 if case findings which it had challenged in that very claim [as the Interested Party had sought to do here]) were to be taken as having survived the quashing.
  27. A third strand developed by Miss Williams is this: that the approach of the second Inspector is, however, inconsistent with the fundamental principle that previous decisions should not be ignored. The claimant argues that the reasons of the first Inspector are site specific and cannot be assumed to have changed within a period of less than a year until the hearing of the second appeal, and claims to rely upon the principle of consistency. This is what might be called the North Wiltshire principle, namely, from Mann LJ in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P&CR 137:
  28. "One important reason why previous decision are capable of being material is that like cases should be dealt with in a like manner so that there is a consistency in the appellate process."

    Miss Williams for the claimant refers me to the statement of that principle in Fox Strategic Land and Property Limited v Secretary of State for Communities and Local Government [2012] EWHC 444 (Admin), where at paragraph 37 HHJ Gilbart QC stated this:

    "Mr Warren submitted that a decision maker was entitled to regard another decision as material, but then give it no weight. In my judgement that is to misunderstand the purpose of the passages in North Wiltshire cited above. The rationale of the principle is that, if a decision is to be reached which is not ad idem with the approach followed in another, then the importance of achieving consistency and of the maintenance of confidence in the development control system require that reasons are given for departures from conclusions reached in another decision. I would refer to this passage from Dunster at paragraph 23 per Lloyd LJ (My italics)
    'Mr Mead's last sentence in paragraph 8 suggests that he has not grasped the intellectual nettle of the disagreement, which is what is needed if he is to have had proper regard to the previous decision. Either he did not have a proper regard to it, in which case he has failed to fulfil the duty to do so, or he has done so but has not explained his reasons, in which case he has not discharged the obligation to give his reasons'."

    In my judgment, that case was one wholly different from the present case, in that it concerned different sites and the previous appeal decision, (the Richborough appeal), still stood. In the present case, the previous decision has been quashed in its entirety. Accordingly, the principle in Hoffmann La Roche applies.

  29. Very properly, counsel for the Secretary of State drew my attention to the case of Land and Development Ltd v First Secretary of State [2003] EWHC 2200 (Admin), where HHJ Rich QC observed as follows at paragraphs 22 and 23:
  30. "22. It is right, in my judgment, that the decision of an inspector which is quashed is of no effect. That is why upon a remitted question being the subject of a renewed reopened inquiry, except by agreement the parties start again with a clean sheet. But it does not mean that that which an inspector has previously decided after evidence, after having a view and after applying his planning judgment, is not at least potentially a material consideration. The weight to be given to such other judgment is a matter for the decision-maker on any reopened inquiry. But it is, if it is a matter of planning judgment in identical circumstances, in my judgment at least desirable to explain why the second judgment differs from the first. It is at least convenient for the parties to be able to start at the second inquiry from the stage that had been reached at the first, so that any attempt to alter the basis of judgment at least has regard to the earlier judgment; and that indeed is the course which was followed by this appellant in this appeal in at least one and I think at least two separate matters.
    23. I do not say that the report of the first inspector is necessarily in whole something to which a second inspector must have regard, still less is a matter which he must follow even if it concerns matters which are not impugned in the decision quashing the decision of the earlier inspector. Materiality is always a matter of judgment. But that it is a matter which may be taken into account if the decision-maker thinks that it is material seems to me to be self-evident."

    First, these observations are obiter (see paragraphs 4, 13 and 14 of the judgment). Second, it is unclear whether or what authorities were cited and there is no reference to the principle in Hoffmann La Roche. Third, if I might put it respectfully, there is ground to suspect that the matters the subject of this obiter observation were not argued before the learned judge since he expressed the view that "materiality is always a matter of judgment", which strongly suggests that he was not aided by reference to matters of basic principle. Also, it involved the rather different position of a call-in inquiry, where the Secretary of State was merely having regard to an earlier Inspector's report rather than a decision. I respectfully draw no persuasive assistance for the claimant from it.

  31. If I had had to deal with the argument that the ordinary reader of the decision letter ought to be able to understand from the decision letter the reasons why the decision maker had reached a different conclusion from that made by the first Inspector then, (i) I would respectfully conclude that the reasons for the conclusions on the strategic gap were apparent from the reasons stated by the second Inspector to which I have drawn attention above; and, (ii) I respectfully adopt the observation of Mr Bartlett QC in his decision in JJ Gallagher v Secretary of State for Local Government, Transport and the Regions [2002] EWHC 1812 (Admin), cited with approval by the Court of Appeal in the Fox case, [2012] EWCA Civ 1198. At paragraph 13 and 14, Pill LJ said:
  32. "13. That approach was followed more recently in Dunster Properties Ltd [a citation is given]. Mr Warren also referred to the case of JJ Gallagher Ltd [citation given], a decision of Mr George Bartlett QC sitting as a High Court judge.
    14. Mr Bartlett stated at paragraph 58:
    'Mr Mould submits that the only question is whether it could be ascertained from the decision letter why it was that the Secretary of State was refusing planning permission despite having granted it in the Church Commissioners appeal. If it could be so ascertained, it did not matter that the earlier decision was not referred to. In my judgment the need for an express explanation of an apparent inconsistency between the decision under consideration and an earlier decision will depend on the circumstances'."

    As may be apparent from what I have stated above, in my judgment it must have been apparent the reasons for the second Inspector to reach the different conclusions on the strategic gap which she did.

  33. The second ground. The importance of the Localism Act 2011 in this case is that it gives power to the Secretary of State to revoke, subject to Strategic Environmental Assessment ("SEA"), as required by the Act itself and European Directive, the SEP. If the SEP is revoked it is the stated intent of the local authority, Arun District Council, the claimant in this case, to lower the targets for housing supply in the area. That will, or may, remove the requirement that the local authority consider favourably planning applications for housing. The new power to do so is conferred by section 109 of the Act, subsection (3) and (4). It is convenient to read it now:
  34. "(3)The Secretary of State may by order revoke the whole or any part of a regional strategy under Part 5 of [the Local Democracy, Economic Development and Construction Act 2009].
    (4)An order under subsection (3) may, in particular, revoke all of the regional strategies (or all of the remaining regional strategies) under Part 5 of that Act."

    It is accepted for the claimant that if the second Inspector's reasons for attaching little weight to the Localism Act 2011 were stated briefly, they could nevertheless be capable in principle of being adequate. It is also accepted that the degree of particularity will depend on the nature of the issues. As to the latter, the claimant in this appeal is entitled to contend that housing supply was of central importance to the decision of the second Inspector from the closeness of the consideration she gave in the decision letter to the Council's Strategic Housing Land Availability Assessment ("SHLAA") and her opening observations. In the decision letter of 1 December 2011, after the words in bold "main issue", at paragraph 5 she wrote this:

    "With that in mind, I consider the main issue in this appeal to be whether the proposal would comply with national and local planning policies concerning the location of new housing, and if not, whether other material considerations would outweigh the conflict with policy."

    She went on to consider in detail housing supply at paragraphs 14 and following.

  35. As to the former contention, the claimant goes to on assert that:
  36. "29. In this case the Inspector has given no reasons on a question of central importance for the appeal."

    That is not the case. The Inspector stated this in her decision letter at paragraph 23:

    "It is the Government's intention to lay orders in Parliament... but this is subject to the outcome of the environmental assessments currently taking place, on which consultation will close on 20 January 2012. Decisions on the revocations will not be made until the Secretary of State and Parliament have had the opportunity to consider the outcome of the environmental assessment process."

    And at paragraph 25:

    "So while the Government's clear intention is to revoke the SEP, the current situation is that it remains part of the adopted development plan, and sets out the housing requirement for the area."

    Miss Williams contends that it might be a hint that the second Inspector had in mind the possibility of delay or uncertainty but that she drew no conclusion which would amount to reasons.

  37. In my respectful judgment, it was clearly an indication of a possible delay or uncertainty.
  38. The Act is a material consideration. Such must follow in that the Localism Bill which preceded it was authoritatively held to be a material consideration by the Court of Appeal in Cala Homes (South) Ltd v Secretary of State for Communities and Local Government [2011] EWCH Civ 639, which perhaps I can refer to as Cala Homes 2.
  39. I respectfully consider that the court needs to consider (i) whether there was any reasoned explanation, and (ii) whether it was inadequate. As to (ii), it is argued that the claimant, the local planning authority, was left unable to understand whether or how the decision could impact on future planning determination and that the Inspector should have given reasons because it was raised as a substantial point in the hearing statement of the Council's witness Mr Gardner.
  40. As to (i), whether there was any reasoned explanation, there can, in my respectful judgment, be only one answer to the issue. In the passage which I have read from paragraph 24, the Inspector did express reasons.
  41. As to (ii), in my judgment, it is instructive to consider both the statutory structure and the way in which the Court of Appeal dealt with this in Cala Homes 2. As to the statutory structure, section 109(3) makes clear that revocations of strategic regional plans, such as the SEPs, are subject to strategic environmental assessment, SEA. In Cala Homes, in the authorities bundle for the claimant at paragraph 140, paragraph 32 of the Court of Appeal decision, Sullivan JL said this:
  42. " ...even if clause 89 is enacted in its present form, it could not lawfully be assumed that revocation of any individual regional strategy is bound to occur regardless of the outcome of the process of environmental assessment, because to make such an assumption would be contrary to the requirement of the SEA Directive and the SEA Regulations: that a decision to revoke may not be made until the process has been completed."
  43. Counsel for the Secretary of State, Mr Blundell, in my judgment was correct to state that the process is subject to the approval of the Secretary of State in consideration of such representation as made in Parliament. I might pertinently read from paragraph 27 of Cala Homes 2, when it was a Localism Bill, and I acknowledge that we have moved on from that, this:
  44. "Given the very early stage that the proposal has reached in the legislative process, and the fact that revocation of any individual regional strategy will be subject to the SEA process, many Planning Inspectors and Chief Planning Officers may well consider that they should give little, if any, weight to the proposed abolition of regional strategies in the decisions that they are currently taking. That position will change if the proposal progresses, or fails to progress, through the legislative and environmental assessment process, but those responsible for taking planning decisions are familiar with the general proposition that the weight to be given to emerging policy is contingent on its progress towards finality: see paragraph 52 of the judgment of Lindblom J [in the present case]."

    At this stage, this court has to ask, how are we, and how was the Inspector, to know with certainty when and whether the SEP would be revoked in whole or in part?

  45. As to the weight to be given to the Localism Bill and the extent to which reasons might be given by the Inspector, Sullivan LJ, in giving the judgment of the court in Cala Homes, said this at paragraph 33, which is a somewhat long passage but I think it proper that I should read it in full:
  46. "Mr. Mould fairly acknowledged that even within the minority of cases in which the proposed abolition of regional strategies will be relevant, there may well be very few cases in which it would be appropriate at this stage of the Parliamentary and SEA process to give any significant weight to the proposal. But the Chief Planner's letter is concerned with the whole of the period prior to the enactment of the Localism Bill (if it is enacted), and the position will change as it progresses, or fails to progress. Even now there might be finely balanced cases where the very slight prospect of a very substantial policy change might just tip the balance in favour of granting or refusing planning permission. Mr. Mould gave the hypothetical example of a large-scale residential proposal (which he referred to as a 'new town', but the point would equally apply to a proposed extension of an existing settlement), which is proposed to be developed over the next 15-20 years, to which there are very strong site-specific objections, and where the sole justification for granting planning permission is the need to meet the requirement for residential development over the next 20 years in the regional strategy. In such a case it would not be irrational for the decision maker to give some weight to the prospect, however uncertain, that the regional policy justification for granting permission for such a long-term proposal may cease to exist within the short term. In such a case, to give even very little weight to the prospect of a change in policy might be to give that factor 'significant' weight, significant in the sense that it might tip the balance in favour of refusing permission. This hypothetical example may well be an extreme case, but it does illustrate why it would not be safe for the Court to assume that at this stage there are no circumstances in which any decision-maker could rationally give some weight to the proposed abolition of regional strategies. In view of the uncertainty created by the legal obstacles referred to above any decision-maker who does think it appropriate to give some weight to the Government's proposal when determining an application or an appeal would be well-advised to give very clear and cogent reasons for reaching that conclusion, but that does not mean that there could be no case whatsoever in which any decision-maker might be able to give such reasons."

    The court was there giving an illustration dealing with the strongest case which one can imagine for a local authority which resists planning permission - one in which it is a large scale residential proposal where the sole justification is the need to meet the requirement for the residential development over the next 20 years in the regional strategy and there are very strong site specific objections. In the words of Sullivan LJ, that hypothetical example may be an extreme case.

  47. In the present case, of course, the Localism Bill has become an Act and there has been to that extent progress but in the present case it might reasonably be said that the decision of the second Inspector was that there were not strong site specific objections. The process is subject, even with the Government's present stated intent to the SEA process, to the process of considering submissions or representation in Parliament and in the context, it is of course true, a power not a mandatory requirement.
  48. So I look at the cautious way in which the last sentence of that quotation is expressed, which perhaps I need not slavishly repeat.
  49. It is suggested that it might be inferred that the Inspector had concerns about delay on certainty but draws no conclusions which amount to reasons. However, she concluded expressly at paragraph 24 that decisions on the revocations will not be made until the Secretary of State and Parliament have had the opportunity to consider the outcome of the environmental process. I respectfully find that the Inspector's statement of reasons for her attaching little weight - which is a matter for her - accords closely with the expressions of the Court of Appeal in Cala Homes 2. Further, there was no error in reasoning when measured against the familiar and demanding standard summarised by Lord Browne in South Buckinghamshire County Council v Porter (no 2) [2004] UKHL 33, [2004] 1 WLR 1953.
  50. In this, as in any such appeal, I can readily understand the sympathies of the local authority, and looking at the number of interested parties from the appendices to the decision letter of the second Inspector, that to other residents locally the second Inspector's decision may have come as a profound disappointment. For the reasons that I have given, it seems to me that the first and the second grounds of appeal must fail. Therefore, the appeal is dismissed.
  51. In case I should forget to do it, may I express my appreciation to each of the counsel who appear before me for the clarity, quality and succinctness of their submissions.
  52. Mr Moules?
  53. MR MOULES: Thank you, my Lord, for that careful and detailed judgment. I do have an application for costs on behalf of the successful defendant, the Secretary of State. A schedule of costs has been served on the parties. Has your Lordship seen that?
  54. THE DEPUTY JUDGE: I have seen it and I will confess that I have given it no attention until this moment, so you all know where I am starting from. I think it is probably simplest, having glanced at the figures before me, simply to see what the response of Miss Williams is.
  55. MR MOULES: My Lord, indeed.
  56. MISS WILLIAMS: My Lord, to put it simply, I do not resist that application in light of your Lordship's judgment.
  57. THE DEPUTY JUDGE: You invite me to summarily assess, do you?
  58. MR MOULES: Yes, my Lord.
  59. THE DEPUTY JUDGE: For understandable reasons, Miss Williams does not rise. I will summarily assess costs as claimed in the sum of 6,974.
  60. MRS TOWNSEND: My Lord, as I indicated yesterday, I do have an application for costs and if I may beg leave to spend just a very little time on it because second parties, it is well known, and interested parties rarely recover their costs in this court but it is also well known that such practices should never harden into a rule and that the fundamental principle of the determination of applications for costs is that there is no rule, so I will spend, I hope, sticking to my practice of being succinct, a little time in setting out why it is that the interested party this time does make such an application. Now, a statement of costs has been filed and served. I hope your Lordship has it.
  61. THE DEPUTY JUDGE: I have it, and the same applies as to the figures.
  62. MRS TOWNSEND: I am obliged as to that indication. With it was a letter of 17 December, copied, I think, to the court even at the time, I am not sure as to that but sent to Arun District Council, the claimant, enclosing the decision letter of GM Hollington and as well an email reply from Delwyn Jones, who is the solicitor acting for the claimant. So three documents which were, in fact, enclosed with my skeleton argument, I think. Sorry, that is my fault for not making that clear. They were filed with my skeleton argument, which your Lordship will have seen sets out the intention to make an application and, really, the basis of it.
  63. THE DEPUTY JUDGE: Will you give me a moment because I confess that my time has not been entirely empty with this and other matters overnight. I wish to remind myself.
  64. MRS TOWNSEND: That comes as no surprise, my Lord. I have further copies.
  65. THE DEPUTY JUDGE: I am reading it.
  66. (A short pause)

  67. THE DEPUTY JUDGE: And I am just reading the letter of 17 December.
  68. MRS TOWNSEND: I am obliged.
  69. (A short pause)

  70. THE DEPUTY JUDGE: Yes, I have re-read both of those.
  71. MRS TOWNSEND: I am obliged. Your Lordship has the aerial photographs submitted by my learned friend, Miss Williams. The site that the appeal decision is related to is the site to the north of Luscombes Nursery, edged in red, I think identified as "Grenyers" in the aerial photographs, Jenkins Yard obviously being the site under consideration here. Two essential points underpin the application for costs. The first is that the conduct of the local planning authority, the claimant here, in pursuing the claim to a hearing has been unreasonable and contrary to the overriding objective. The second essential point underpinning this application is that this is a case in which, however short the separate representation and however focused it was, separate representation was appropriate under the principles their Lordships enunciated in the well-known case of Bolton.
  72. I will deal with the conduct of the proceedings point, which, in my submission, justifies an award of costs in this case quite independent of the principles in Bolton, according to general CPR principles for the award of costs. The context to this is this: while the hearing in this court has been concerned exclusively with issues of law, the claimant does not cast off its mantle as local planning authority, custodian of the public interest. The claimant is a public authority and acting in that capacity, the capacity of local planning authority, bound therefore to appraise and re-appraise the public interest in the claim and the continuation of it at all stages.
  73. Now, no decision letter, of course, is a precedent but the recent decision of Inspector Hollington is a material consideration under the consistency principle prayed in aid by this very claimant, and I will just elaborate the effect --
  74. THE DEPUTY JUDGE: Inspector Hollington?
  75. MRS TOWNSEND: Inspector Hollington, the December decision letter, yes. Let me take this in stages. Success in these proceedings on a point of law --
  76. THE DEPUTY JUDGE: I have throughout been looking at the decision letter of Jessica Graham.
  77. MRS TOWNSEND: Does your Lordship not have -- yes, of course. These proceedings concern Inspector Graham's decision letter, and, if successful, which they have not been, had they been successful, the planning appeal before Inspector Graham would be redetermined by a fresh Inspector, and the recent decision of Inspector Hollington, which was submitted with my skeleton argument, and concerns the site to the north, will be a material consideration. Just to put this point in context, the only possible reasons for these proceedings brought by a local planning authority could be that on redetermination they would argue planning permission should not be permitted on this site. Had they been successful, the matter would be remitted, and I must for the purposes of this application bear in mind that however robustly your Lordship has rejected the arguments of law, it was open to the Council to advance those arguments of law, supported by counsel. So had they been successful, as I must assume it was possible in the Council's mind they would be, the matter would go back to the Inspector on the following basis. Inspector Dobson's conclusions are material, Inspector Graham's conclusions are material and now Inspectors Hollington's conclusions are also material and they postdate those earlier conclusions, which were both taken into account by Inspector Hollington and given little weight, and I will come to the findings of Inspector Hollington on the strategic gap point in just a moment.
  78. On the second issue, the question of weight to the south-east plans housing figures-- that was the argument on the second ground -- it did not go to substance. So, again, that issue would be redetermined and the question would be how much explanation to give to the south-east plans housing figures. Now, the officers of the Council said in 2010 this site should be developed, permission should be granted. That has not changed since 2010. Before Inspector Graham, the Council's members had to go to external consultants to support the appeal, Mr Gardner. Since then, Asda has now been built, a point I made earlier, and encloses the development site, and Inspector Hollington has decided the site to the north should be developed for 40 dwellings. As I have said, his conclusions are material. Now, he reaches -- and I am going to take your Lordship, please, to his decision letter, paragraph 33 -- an important conclusion on housing land supply and the need for additional dwellings in Arun District Council. Paragraph 33: "There is a deficiency in housing land supply". The policy context to this finding has slight moved on, so he expresses himself in a different way but that is a bang up to date finding of the housing land supply situation which any redetermination must consider enhances the case for development of this site. So despite their arguments to the contrary, that finding has been reached and will be material.
  79. The second point to note is that although the Inspector recognises, paragraph 35, that Jenkins yard is a different site, he finds development of the Grenyers site to have no material effect on the strategic gap and, furthermore, paragraph 19, my Lord, the policies relied upon -- and this is critical in the new planning policy world, the new world of what is known as the NPPF, the Framework, the policy document -- the very policies that underpin the strategic gap issue are out-of-date: finding, paragraph 19. This is a point which I know it will be accepted on the other side has important planning consequences which the planning authority will be aware of. Now, this led to the letter that your Lordship has helpfully just read, and I say that because I was hoping to draw your attention to the way in which those instructing me did not just write a letter saying, "Ahah, we have won now," they write a letter expressing the view, third paragraph, that "the decision is well thought out, robust and based on planning merits and we can see no grounds on which the decision could reasonably be challenged" -- we have since received confirmation it will not be challenged by the by -- and goes on to warn of the application for costs and to say that that decision will be an important material consideration.
  80. The local planning authority's reply provides no explanation of their decision to pursue the claim to a hearing and, importantly, no dispute as to the interpretation of the significance of Inspector Hollington's letter. We simply have it that, as it were, "despite all you say, we are going to pursue this to a hearing," and I will ask your Lordship to note: "I have consulted with the client department, councillors and counsel". It is councillors, of course, who initially refused planning permission contrary to officers' advice and have been driving the case against this development throughout, as it is their democratic right to do, but when it comes to issues of costs, that could have its costs penalties just as it does in planning appeals when a local authority -- generally in a planning appeal both sides bear their own costs but when it is felt that a local planning authority has acted unreasonably, an appellant recovers their costs.
  81. This correspondence and Inspectors Hollington's decision letter do simply this, as I put it to your Lordship: they put the onus firmly on the planning authority to come back with an explanation why it is in the public interest to pursue this case to a hearing, because a good argument that things have moved on so far since they were refused permission in 2010 that an explanation is called for from them has been made. We have had no explanation, we are entitled to consider their pursuit of this claim unreasonable unless we hear a clear explanation how it is in the public interest to pursue it, and that is how I put the conduct point, my Lord.
  82. THE DEPUTY JUDGE: Thank you.
  83. MRS TOWNSEND: The second point, my client has focussed on the strategic gap point and not the reasons point, the second ground, for obvious reasons because they felt they had a perspective which may have assisted the court, indeed may have been needed by the court, and however short a contribution, if it is of considerable assistance to the court, it does qualify, as it were, for recognition in an award of costs.
  84. Just as an aside on the timing of all of this, your Lordship will know that in section 288 challenges it is very often impossible to ascertain exactly how the case will be defended by the Secretary of State until days before the hearing, and there is no criticism whatsoever of the Treasury Solicitors but in this case those instructing me did try to ascertain early whether the fundamental point on material consideration where the former decision letter and the finding were concerned would be taken, and by the time we learnt the answer to that it was time for our skeleton, so the work had been done and we were involved.
  85. It was considered important that the court understood that there was a perversity challenge to Inspector Dobson's conclusions, that they were always thought to fly in the face of the facts and, secondly, the degree to which Inspector Graham decided the matter on new evidence with a new team, including the landscape character and visual impact assessment and careful authoritative argument on housing land supply. But your Lordship is very, very familiar with the Bolton principles and I do not believe that, as it were, banging on about the assistance we might have brought the court will assist my application. That is how I put it.
  86. THE DEPUTY JUDGE: Thank you very much.
  87. MRS TOWNSEND: Can I help with the amount? I think your Lordship has that in the schedule.
  88. THE DEPUTY JUDGE: Let us deal with principle first, I think.
  89. MISS WILLIAMS: My Lord, I do resist the application for a second set of costs. Can I deal, shortly I hope, with a number of matters of principles. Your Lordship has the relevant extract from Bolton in Mrs Townsend's skeleton at paragraph 30. She clearly accepts that it is only in very unusual circumstances that an interested party will expect in these circumstances to be awarded costs. Those are set out in paragraph 2 of the extract from Bolton.
  90. To put it briefly, my submission is that the interested party has no separate interest, the defendant's skeleton covered all the main points, as it clear from your Lordship's judgment. I am not sure I need to elaborate any more on those fundamentals but I will now come on to comment on the Council's conduct in relation to the letter of 17 December and say a number of things. First of all, as Mrs Townsend of course accepts, the original decision in this case was made, as it always is, by members, although it is true on their officers' recommended approval. It clearly is the Council's democratic duty to come to their own decisions, and indeed all over the county, every week, Councils are coming to their own decisions informed by the advice of officers. So there is nothing very surprising or unusual about that, so just to put that to one side.
  91. But, secondly, did circumstances change sufficiently for the Council to consider whether the Council should have withdrawn this application? I turn to the decision of Mr Hollington, Grenyers Nursery, on 12 December last year. Now, Mrs Townsend has drawn attention to paragraph 33 of that decision letter which refers to the deficiency of housing land supply. I make no point about that but I would draw your attention to paragraph 35, where the Inspector in that case specifically commented on the Jenkins Yard site and said the physical setting of Jenkins Yard and the current appeal site are not identical. He also recorded in that paragraph the previous Inspector's decisions and the contrasting view of those proposals' effects in relation to the strategic gap. So we have -- I am not sure we do have -- initially decision number 1 in relation to Jenkins Yard, then decision number 2, now we have the decision on Grenyers Nursery. But the Inspector in that case clearly distinguishes the Grenyers Nursery site and the Jenkins Yard site.
  92. In my submission, if there had been a fresh inquiry in relation to this case, if the matter had been remitted to the Secretary of State and a fresh inquiry convened, the circumstances would be different again. When you have looked at the decision throughout, the circumstances are very different, in particular in relation to housing land supply, and it is really not for, if I may say so, any of us to perhaps speculate as to what the circumstances might have been had this application been successful but certainly it would be likely that an inquiry would not have been held for some months. By that time, I suggest there is a very reasonable prospect that the south-east plan would be abolished. The SEAs have been undertaken, one of those has already been abolished, the east of England plan at the beginning of January. Again, it is speculation but I think it is fair to say that there would be yet again another very different set of circumstances had a new inquiry been convened.
  93. As your Lordship may be aware, the two key points in relation to this case, and indeed also the Grenyers Nursery decision before Christmas, is a balancing exercise which various Inspectors have had to undertake between the impact of a particular site on the strategic gap balanced with the position on housing land supply, and it is that key point that may very well have changed had we been successful and a fresh inquiry convened. So, in my submission, it is perfectly reasonable that the Council should have continued with this claim in these circumstances.
  94. Those are my submissions on the principles, my Lord.
  95. THE DEPUTY JUDGE: Thank you very much.
  96. Was there anything you wanted to say in reply?
  97. MRS TOWNSEND: Just this, my Lord: my learned friend has not grappled with the main point in Inspector Hollington's decision letter, which is that the policies underpinning the strategic issue are out-of-date. What does the Council want for this site? It is surrounded by development, there is no strategic gap policy worthy of any weight, and yet they are pursuing this in order to get a refusal of planning permission. There is no proper explanation. Those are my submissions.
  98. THE DEPUTY JUDGE: Thank you very much. The interested party, by counsel, succinctly argues for costs on the basis that the conduct of the local authority has been unreasonable in CPR terms and/or that separate representation is justified. As to the latter, one can always sympathise with the position of a developer or interested party in a section 288 appeal where it may be quite late that the interested party has the reassurance of seeing the way in which the Secretary of State responds; but that is not at all unusual, and I recite the principles of Bolton, which are that there is no rule as to costs but the developer will not normally be entitled to costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard. In this case, the likelihood that a separate representation was likely to be required seems to me at least uncertain.
  99. As to conduct, that is really the thrust of Mrs Townsend's submissions, since she recognises that it is not often that a third party receives costs on any appeal of this sort. She draws attention to the fact that in December it became known that another Inspector on a site very little removed from this one had found in favour of planning permission for up to 40 dwellings and in particular had drawn attention to the fact that matters of deficiency of housing land supply and/or matters relevant here have moved on, in that certain considerations which would have fastened upon a decision are now out the date.
  100. Whilst there is some force in that, it seems to me reasonable for Miss Williams to reply that the uncertainty may have been in more than one direction, in that the SEP may yet be abolished. Each is looking to the possibility, had an appeal succeeded, as to whether there might have been an inevitable success for the developer, or a strong likelihood of success for a developer in any event with combined material considerations which would have included, on the Council's argument, the finding and conclusions of Inspector Graham and Inspector Hollington, as well as those of Inspector Dobson.
  101. I am not persuaded, elegantly as it is put, that this is a case where the conduct of the local authority has been unreasonable in the sense usually understood. I well recognise that this is a case where the Councillors have resisted strongly a proposal for planning permission which from the beginning, it is clear, was recommended by officers for permission but nonetheless that is their own duty. So I am not persuaded to take a different course from that which is so often followed in this case.


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