England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Forbes)

		Royal Courts of Justice Strand London WC2 Friday, 4th May 2001

Friday, 4th May 2001

1. LORD JUSTICE PETER GIBSON: Buxton LJ will give the first judgment.
2. LORD JUSTICE BUXTON: This is an appeal from a decision of Forbes J on an application under section 287 of the Town and Country Planning Act 1990 ("the 1990 Act"). That section provides that if a person is aggrieved by a local plan and wishes to question its validity, he may make application to the High Court and the High Court may, if satisfied that the plan is wholly or to any extent outside the powers conferred upon the local authority or that the interests of the applicant have been substantially prejudiced by a failure to comply with any requirement of the Act, wholly or in part quash the plan.
3. The applicant in the court below, now the appellant, is First Corporate Shipping Ltd ("FCS"). FCS operates a port and entrepôt operation at Royal Portbury Dock, an area that falls within the area of responsibility of the defendant, North Somerset Council. It is FCS's case, not contested either before the judge or before us, that its activity at the Royal Portbury Docks is an important element in the commercial activity of the area and has become an extremely successful port operation employing a substantial number of persons, making important contribution to the local economy and generally providing facilities that are unique in that area. The operation has been built up over the years and the contention of FCS is that it has run out of land that it needs adequately to operate its business at the Royal Portbury Dock. It was for that reason that FCS was directly interested in the planning arrangements of the local authorities in respect of the dock area and its immediate surroundings.
4. In order to understand the complaint that is now made and its background, we need to look at the planning structure affecting the Royal Portbury Dock. It is necessary to go, first, to the Avon County Structure Plan, the structure plan that is relevant to the area of the Royal Portbury Dock, and to look at its 1985 version. That contained in respect of Royal Portbury Dock an explanatory memorandum, which it is convenient to set out. It reads as follows:

"Royal Portbury Dock

8.10.9 Bristol has a long tradition of links with sea trade, initially through the City Docks and, as ships increased in size, through docks at Avonmouth. Further increases induced Bristol City Council to finance a new dock to the South of the mouth of the River Avon. Royal Portbury Dock is seen as a long term investment which, with good road and rail links, must play an important role in the future economic prosperity of Avon ... Priority should be given to development by those concerns to whom location is vital, that is those concerned primarily with the movement or processing of goods imported or exported through the Dock. The area for development, approximately 300 ha ... within that specified in the Bristol Corporation (West Dock) Act 1971 as the `Limit of deviation works' should be used primarily for light and general industry and warehousing associated with the Dock ..."

5. In the spirit of that general statement, a particular policy was set out immediately after the paragraph already quoted in respect of the Royal Portbury Dock. That was Policy E.14, and it plays an important role in the argument of this case.
6. In the 1985 structure plan, Policy E.14 read as follows:

"E 14 Land amounting to 300 ha ... adjoining Royal Portbury Dock is proposed for warehouse and manufacturing development (other than for special and heavy industry or for uses likely to create unacceptable levels of atmospheric pollution). Priority will be given to those users who store or process material and goods imported or exported through, or for industrial uses associated with the operation of, Royal Portbury Dock."

7. It was clearly a matter of significant controversy before the judge, as it had been a matter of significant controversy in the exchanges leading up to the application to the High Court, as to what exactly Policy E.14 of the structure plan intended. The judge gave extremely close attention to that argument; and he reached a clear conclusion about it which, for reasons that will become apparent, was extremely important in his decision of the case. He said this in paragraph 11 of his judgment:

"In my opinion, it is clear from the wording and context of paragraph 8.10.9 and Policy E.14 as set out in the written Explanatory Memorandum to the proposed structure plan, that the reference in Policy E.14 to `300 ha ... adjoining Royal Portbury Dock ...' is a reference to the same area as the area of `approximately 300 ha' within the `Limit of deviation of works' as specified in the Bristol Corporation (West Docks Act 1971 ... . It follows that the area in Policy E.14 proposed for the specified future development of Royal Portbury Dock was to be an area situated entirely within the Limit of deviation and the expression `adjoining Royal Portbury Dock' in that Policy therefore did not refer to any area which was adjacent to Royal Portbury Dock and situated outside the Limit of deviation."

8. The structure plan process then went forward, and the document, or the plan, extant at the time at which the events complained of in this case arose was the Avon County Structure Plan (incorporating Third Alteration) 94 (which if I need to do so hereafter I shall refer to as "ACSP 1994"). That continued the same general policy as had been apparent in the 1985 version. The judge, however, explained certain modifications that had been necessary. He referred to the explanatory memorandum in regard to ACSP 1994, and then said this:

"17.... the Explanatory Memorandum ... noted that Policy E.14 required modification to take account of land which had been developed since approval of the original structure plan and changes in the Use Classes Order and the General Development Order. Accordingly, the amended wording proposed for Policy E.14 was as follows:

`E.14 Land amounting to 210 ha ... adjoining Royal Portbury Dock is proposed for general industry, storage or distribution ... . Priority will be given to those users who store or process materials and goods imported or exported through, or for industrial uses associated with the operation of, Royal Portbury Dock.'

18.In my judgment, it is clear from the terms of paragraph 4.63 of the Explanatory Memorandum and the way in which Policy E.14 had developed, which I have summarised in the preceding paragraphs, that the reference in the proposed amended wording of Policy E.14 to `210 ha ... adjoining Royal Portbury Dock' remained a reference to development land situated entirely within the Limit of deviation and that Policy E.14 of the current structure plan was therefore directed at and limited to land lying entirely within the "Limit of deviation of works' as specified in the Bristol Corporation (West Dock) Act."

9. The judge then went on to record that the policy wording for Policy E.14 that he had just set out was incorporated, unaltered, into ACSP 1994 when it was adopted in July of 1994.
10. As I have said, the judge went in some detail into the correct construction of Policy E.14. Although that was a matter of controversy before him, in this court it is accepted that his construction of Policy E.14 was correct, and therefore that when reference is made to the land amounting to 210 hectares available for the uses stated, that is a reference to land lying entirely within what is perhaps slightly inconveniently described as the "Limited deviation of works", meaning thereby colloquially the area of the dock specified in the 1971 Act as the proper area of the dock.
11. That was the structure plan. It was then necessary under the planning structure for local plans to be formulated. The relevant local plan was a plan formulated by the Woodbury District Council, who are the predecessors to the present defendant. That local plan was the Woodspring local plan of 1994. That, as it was in general terms necessary, followed the guidance given in the structure plan as to the planning arrangements at Royal Portbury Dock. However, it included within itself a table, Table 7, that is described as referring to supply of employment land. That appeared to show that, against the structure plan allocation, that is to say the allocation in Policy E.14 of 210 hectares, only some 160 hectares had in fact been developed at the Royal Portbury Dock: therefore the area that the structure plan envisaged as being available during the period of that structure plan, that is to say between 1989 and 2001, for the development at the Royal Portbury Dock, and therefore of course for the benefit of FCS, had apparently not been made available.
12. After the publication of the local plan there came into operation the obligations of the local planning authority with regard to local plans as set out in the Town and Country Planning Act 1990 and in the Regulations to the Town and Country Planning Development Plan Regulations 1991.
13. Section 42 of the 1998 Act requires a local planning authority to cause a local inquiry to be held for the purpose of considering objections to the draft local plan. The regulations set out how the local inquiry should be administered, it being noted that the inquiry is held by an inspector not appointed by the local authority but his recommendations are made to the local authority and not to the minister. The inspector provides a report to the local authority. If he recommends that the plan should be modified in any manner that he specifies and the local planning authority disagree with any such recommendation, it must give reasons for so doing. Having given reasons for so doing and received further submissions from those interested, it then has to consider (and this is a matter for its discretion not a matter of obligation) whether there should be a further public inquiry into the alterations or into the respects in which it intends to deviate from what the inspector has recommended.
14. In the present case FCS was an objector at the original inquiry, as indeed were, we were told, some 1100 other persons; not all of those, indeed very few of those, were of course concerned with the Royal Portbury Dock arrangements because the plan extended over a very wide area and, as local plans do, immediately concerned the interests of a very large number of local residents.
15. The case that was put by FCS at the local inquiry is to be found in the evidence of Mr Ord, the managing director of the subsidiary of FCS responsible for the operation of Royal Portbury Dock. That evidence was set out in some detail by the judge. What Mr Ord said, in summary, was that in view of the importance of Royal Portbury Dock, acknowledged in the local plan, and in view of its successful development, there had been insufficient allowance made in the local plan for future growth of the port. That contention was reinforced by Mr Ord saying that all available land for the company's expansion had been developed or committed. He then went on to suggest (although only in general terms) various other adjacent areas that might be thought suitable for expansion of the company and its activities. Those included some undeveloped fields adjacent to the present area of operation, which fall within the limit of deviation already referred to, but also a number of other adjacent areas, including at least one area, an area known as Court House Farm, which was shown on the plan as falling within the Green Belt. Equally, other areas fell within or impacted upon areas covered by a further policy in the plan, known as Policy GRB/6, which, put shortly, was a policy in respect of what is colloquially called `white land', that is to say land that the local authority does not immediately think is suitable for development but wishes to remain open pending consideration of how it should be deployed.
16. The judge summarised Mr Ord's evidence and the applicant's case in paragraph 23 in his judgment. It is convenient to set that out because it describes the basis upon which the judge approached the complaints that were eventually made. The judge said this:

"It is clear from Mr Ord's evidence to the local inquiry that, in presenting BCP's" [that is the applicant's] "main objection that insufficient land for the future expansion of Royal Portbury Dock had been allocated for that purpose in the deposit plan, Mr Ord was making two fundamental points: (1) that all the land which had been allocated for development until then (which necessarily included all land which was situated within the Limit of deviation) had already been developed or was already committed and (2) that the land, which was urgently required to meet the pressing need for the further expansion of Royal Portbury Dock, would have to be allocated from areas which were all situated outside the Port Estate (and thus outside the Limit of deviation), apart from one area...".

17. Before proceeding further, it is necessary to say something about the Green Belt policy contained in the plan and also to say something about GRB/6.
18. So far as the Green Belt is concerned, the judge recorded correctly that the only objection made by the applicant to the proposals with regard to the Green Belt boundary was in respect of the inclusion within the Green Belt of one particular site situated within the Port Estate. No objection was made in respect of the Green Belt boundary to the inclusion of, for instance, Court House Farm, to which I have already referred as an area envisaged in the company's evidence as a potential area for expansion. Furthermore, the more extensive policy, GRB/6, was not the subject of objection by the company.
19. The inspector recommended as follows in respect of those two policies. He dealt with the Green Belt in paragraph 7.6 of his report which, since it is of some importance in the issues in the case, it is convenient to set out in full:

"7.6The general extent of the current Green Belt was determined by the Secretary of State when approving the ACSP in 1985. The detailed boundaries were defined in the SWAGBLP adopted in 1988 and Alteration No 2, Fore Hill, Portishead, adopted in 1993. Government policy expressed in PPG 2 (Revised) 2.7 is that existing GB boundaries should not be changed unless alterations to the structure plan have been approved, or other exceptional circumstances exist, which require them to be changed. Alterations to the structure plan have yet to be prepared. I have carefully considered the arguments put forward and the situations described by objectors seeking the GB boundary changes listed in issues 2 and 3. Related objections to other local plan policies and proposals in respect of the same areas are dealt with elsewhere in my report. Having regard where appropriate to my conclusions and recommendations on those matters I find no exceptional circumstances have arisen since the boundary was defined to justify altering the GB in the current plan period other than in the case of sites 3(f) and 3(j). The land at 3(b) (objection 604/004) is the subject of proposal GRB/2 to which separate objection is made and dealt with later."

20. So far as GRB/6 was concerned, the inspector recommended in broad terms in support of that policy.
21. In his report also, of course, the inspector had to deal with the objection raised by the applicant that insufficient land had been allocated to accommodate the expansion of the Royal Portbury Dock. He explained the objection and then set out detailed conclusions in paragraphs 13.35 to 13.38 of his report. Those observations are central to the argument in this case and therefore again it is necessary to set them out in full:

"13.35The Royal Portbury Dock and its modern facilities are of considerable importance to the economy and employment opportunities of the district and the region. About 73 hectares are protected and actively managed for nature conservation along a network of wildlife corridors throughout the site. Its strategic significance is recognised separately in the structure plan where ACSP E.14 proposes that 210 hectares adjoining Royal Portbury Dock be developed between 1989 and 2001 for general industry, storage and distribution in addition to about 100 hectares, which, according to the explanatory memorandum 4.37, were already then developed. Priority is to be given to development related to dock use.

13.36The local plan Table 7 as updated by Amendment A13(1) indicates that some 35 hectares were developed between 1989 and 1995 with about 125 hectares allocated for development between 1995 and 2001. The dock company submit that all the allocations are now developed or committed. The Council fully accept that situation but contend that further expansion depends upon strategic decisions that should be considered in the next review of the structure plan. It is quite clear nonetheless that of the 210 hectares required in the present plan period only about 160 hectares have been developed or allocated. I conclude that in view of the agreed demand for the present strategic allocation the 50 hectare shortfall is a matter the local plan should address now quite separately from the question of additional land allocations in the next plan period.

13.37A number of options were canvassed at the inquiry including about 15 hectares in the Green Belt, containing a small SNCI, at Court House Farm near M5 Junction 19, fields along the River Avon also within a SNCI and adjoining a designated SSSI; and land to the west towards East Portishead. The strategic requirement is quite clearly that the 210 hectares be developed adjoining Royal Portbury Dock. In so far as this land, for sound and compelling planning reasons, might not be found firstly outside the Green Belt the circumstances appear to be sufficiently exceptional in my opinion to necessitate an alteration to the Green Belt boundary at Court House Farm despite my previous conclusions in 7.6 I am however unable to anticipate the outcome of further study of the options and possible combinations available and I made my recommendation accordingly.

13.38I recommend that the local plan be modified to allocate about 175 hectares (210 ha - 35 ha developed) adjoining the Royal Portbury Dock for development between 1995 and 2001 for industry, distribution, or storage in accordance with structure plan Policy E.14."

22. So far so good. Then, however, it became apparent to the officers of the Council that, in their view, the inspector had proceeded upon an incorrect basis. Put shortly, further consideration, including further information from and exchanges with the applicant, led them to believe that he had made two errors. The inspector was not to be blamed for such errors because they sprang out of what had been apparently common ground between the applicant and the local authority, insofar as issue was joined between them, at the inquiry. The errors were as follows. First, the inspector had wrongly assumed that Policy E.14 in the structure plan was not limited to land within the limit of deviation but envisaged the possibility of the structure plan allocation being fulfilled outside the limit of deviation. Second, when he had concluded, in reliance upon Table 7, that the structure plan allocation had not been fulfilled, he in fact had been wrong about that conclusion. It became the local authority's contention that the structure plan allocation had in fact been entirely met.
23. Although originally the local authority adduced reasons other than those that I have just set out for not accepting the inspector's recommendation about the further 50 hectares, in their statement of reasons for not accepting the inspector's recommendation, with which this appeal is concerned, they relied upon the point that I have just recited. That statement of reasons, again, should be quoted in full:

"Comment

The Council's Statement of Decisions with Reasons and Proposed Modifications does not conform with the Inspector's recommendations at para 13.38. The Inspector recommended that in total 175 ha adjoining Royal Portbury Dock be allocated for development 1995-2001 in accordance with structure plan policy E14, necessitating the designation by the Council of a further 50 ha in addition to that designated in the draft plan. The Inspector's reference to further studies relates to the location of development and the Council has not addressed or given reasons for rejecting the clear recommendations as to the need for the further allocation of land.

Response

The Council is not required to accept any of the Inspector's recommendations, but clearly it must give them proper consideration and have sound reasons where it decides not to accept them. Employment land availability was the subject of detailed discussions prior to the Council's decision in April 1999, as acknowledged by the Port Company. By its very nature the strategic allocation relates to the West Dock Act area. In all there is some 424 ha within the West Dock Act area. The original allocation of 300 ha in the Avon Structure Plan is the residual area having regard to the dock's water and customs fence area. In allocating the 300 ha the former Avon CC was of the view that there would be no additional requirements for the foreseeable future. The allocation is a gross area in that it includes roads and landscaping ancillary to the development. Information provided by the Port Company in April 1999 shows that 201 ha had been developed, with 6 ha remaining for development, the balance comprising landscaping and roads giving a total outside the dock and customs fence areas of 298 ha. On these figures, there is no justification for a further release of land within the plan period. Because of the way in which the figures have changed on a residual basis since the first Structure Plan allocation, there is an element of ambiguity in interpreting the strategic requirement, depending on whether the point of reference is the original allocation, or that for the period from 1989. There was no decision to extend the provision beyond the West Dock Act area in the 3rd. Alteration to the Structure Plan. The Council has acknowledged the importance of the Dock to the local economy, but also recognises the importance of safeguarding the local environment and amenities of local residents. The Joint Replacement Structure Plan period overlaps that of the local plan and supports the development to Royal Portbury Dock, with priority to be given to intensification of land already identified and refers to the need for improved transport links and the need to safeguard the environment. It is against this background that the Council proposes no further land release in the plan but states the need for further studies. Recommend no change."

24. Substantial representations were made to the local authority complaining of that posture. Those representations were made not only at considerable length in a formal document but also in a series of meetings. I will mention at a later point something of what the basis of those representations appears to have been. They did not prevail with the local authority. We were shown internal documents of the local authority which, in my judgement, demonstrated that the complaints of the applicants were properly brought to the attention of the members of the authority, and that the authority and its officers were well aware of their obligations under the planning system, more particularly their obligations in a case where the authority rejects an inspector's recommendations. The objection not having prevailed, the present plan was adopted by the local authority, not including the inspector's recommendation as to the 50 hectares, in June 2000.
25. The application made by the applicant was to quash certain parts of that plan, as indeed it had to be. For reasons that I shall develop at the end of this judgment, the application under section 287 does not directly address the complaint that the applicant seeks to make. The complaint that the applicant seeks to maintain in this court, although it made other complaints before the judge which he rejected, is this:

"The Learned Judge erred in law in holding that the Respondent was entitled to decide that a further inquiry was not necessary and that its decision to this effect was neither perverse nor Wednesbury unreasonable."

26. That complaint is of course directed at the way in which the local authority had dealt with and administered the case originally put by the applicant at the inquiry and in the subsequent discussions; because it was part of the contention of the applicant that before the local authority rejected the inspector's recommendation on the grounds that it had formulated in the statement of reasons it should exercise its discretion in favour of holding a further inquiry. However, the remedy sought is to quash a significant number of elements in the local plan, including, in particular, part of the plan with regard to Green Belt land. In one sense that is of course understandable because, as Mr Neil King QC pointed out on behalf of the applicant, unless those limitations in respect of Green Belt land were removed, more particularly in respect of Court House Farm, there would be no ambit or opportunity for the wider expansion of the port in the terms that were argued for at the original inquiry. Nevertheless, before we get to that stage of remedy, we have to consider the narrow question now ventilated as to whether the decision not to hold a further inquiry in respect of this particular point was unreasonable in a public law sense.
27. The judge's judgment, if I may be respectfully permitted to say so, is an exemplary investigation of the detail of the very many matters that were contested before to him, not least the argument that existed at that point as to what the true construction of Policy E.14 had in fact been. It was therefore for that reason that he did not come to the issue that is now the only issue in this appeal until he reached paragraph 64 of the judgment.
28. I do not think it easy or fair to anybody to seek to summarise the way in which the judge put the matter. Therefore, although it extends this present judgment, the convenient course will be to set out not merely paragraph 65 and its last four lines, of which specific complaint was made in the grounds of appeal, but the whole of the judge's reasoning on this point:

"64.I turn finally to consider Ground 3 of the Grounds of Challenge. Mr King submitted that it was patently unjust and unfair for NSC to rely on the new matters which had been raised for the first time in both the first and the final Statement of Reasons (in particular the latter), because BPC had not had any opportunity to respond fully to those matters or to have them properly considered by an independent and impartial tribunal. Mr King submitted that it was perverse and/or Wednesbury unreasonable of NSC to refuse to hold a fresh local inquiry to consider these matters in such circumstances and that the reasons given for refusing to hold such a further local inquiry were wholly inadequate. Mr King argued that, by NSC's refusal to hold a further local inquiry, BPC had been deprived of the opportunity to challenge the calculations involved in demonstrating that the strategic requirement of Policy E.14 had been met and also, more importantly, BPC had not been afforded a full opportunity to argue before an independent Inspector that, if the current strategic requirement had been met, there were compelling reasons, which justified the immediate allocation of more land to meet the dock related development needs of Royal Portbury Dock. Mr King suggested that, if the Inspector did fall into error in concluding that there was a strategic shortfall of 50 ha, it was NSC who was responsible for that error in failing to provide the Inspector with all the necessary facts and arguments. Mr King therefore submitted that, in those circumstances, the notion that it was and is unnecessary for such a fundamental matter, with significant and far reaching implications for the economic well-being of both BPC and the region, to be addressed by an impartial tribunal of fact and policy, is both repugnant and unacceptable.

65.Notwithstanding Mr King's powerfully expressed and carefully presented submissions, I am not persuaded that NSC did act unlawfully in refusing to hold a further local inquiry in this case. As Mr Holgate pointed out, the decision whether to hold a fresh inquiry was a matter for NSC's discretion and is subject to challenge on Wednesbury grounds only (see Warren v Uttlesford DC (1997) JPL 1130 at p. 1134). As it seems to me, for the reasons already given, it is clear that the Inspector was in error in his conclusion that there was a 50 ha shortfall in meeting the current strategic requirement for the development needs of Royal Portbury Dock. It is clear that the Inspector's recommendation was entirely founded upon that erroneous conclusion, because it was that conclusion which had led him to express the opinion that `the 50 hectare shortfall is a matter the local plan should address now, quite separately from the question of additional land allocations in the next plan period.' In my judgment, it is also clear from the full text of the Inspector's `Considerations and Conclusions' that he considered the question of additional land allocations (ie allocations of land beyond any outstanding balance of the current strategic requirements) to be a matter for the next plan period. BPC had the opportunity to present a case to the local inquiry that there should be allocation of further land from areas outside the Limit of deviation, but chose to present a case to the Inspector which was in bare outline only on this aspect of the matter and wholly unsupported by any expert evidence dealing with any specific areas. It is therefore not surprising that the Inspector's recommendation was no more than a restatement of what he (erroneously) believed the current strategic position to be. In those circumstances, having regard also to matters such as the public interest in having the present local plan process brought to a final conclusion and the imminent approval of the JRSP 1998, I am satisfied that the NSC was entitled to decide that a further local inquiry was not necessary and that its decision to that effect is neither perverse or Wednesbury unreasonable. Accordingly, for those reasons, this ground of challenge also fails."

29. The issue therefore is whether the local authority was unreasonable in the Wednesbury sense, that is to say was perverse or irrational or did not take proper account of relevant matters, in deciding not to have a further inquiry. It is important to appreciate that that is the limit of the appeal. It has to be such, because of course the actual decision making process is a matter for the local authority's discretion. The applicant was right to recognise that that was the test that he had to fulfil if he is to prevail in this complaint in the light of the judgments in this court in Warren v Uttlesford District Council (1997) JPL 1130, a well-known authority, not in issue in this case, to which I do not need to refer further.
30. In my judgement the answer to this issue is extremely short. It seems to me, I have to say, quite impossible to claim in the circumstances of this case that the local authority acted in any way perversely or unreasonably in not holding a further inquiry. I will set out four reasons that drive me to that conclusion. First of all, I revert to the inspector's own reasoning in his report. It is quite clear from that that his recommendations and argument were premised on his interpretation of Policy E.14. In general, he acknowledged the Council's general case that the need for further land over and above the allocation in the structure plan should be looked at in the next plan period, that is to say not in the context of the present local plan or the present structure plan. But because he thought that the 50 hectare shortfall involved a failure to fulfil the requirements of the present structure plan, he considered that that must be addressed straight away. As I have already indicated, he was in fact in error on that point on two scores: (1) that there had been a short fall; and (2) that the structure plan envisaged the use of land outside the area of deviation. I think that that conclusion follows inevitably from any fair reading of the inspector's report. But I would just mention two or three aspects of the report that strongly support it.
31. First of all, the inspector recites the Council's contention that strategic positions for further expansion should be considered in the next review. He does not say that he rejects that, but says that that consideration in his view is not directly germane to the point which he has to decide because he thinks that the 210 hectares required in the present plan period had not been developed. He then went on to say this, a passage that Mr King relied on to some extent:

"I conclude that in view of the agreed demand for the present strategic allocation" [these 50 hectare shortfalls should be addressed now].

...

"The strategic requirement is quite clearly that the 210 hectares be developed adjoining Royal Portbury Dock."

32. It seems to me entirely clear that when the inspector used those expressions and spoke about the demand for the strategic allocation, he was not referring to the much broader case put by the applicant for expansion generally, but was using the word "strategic" in its common usage in planning terms to refer to the requirement in the structure plan. Not only is that in my judgement normal planning parlance, there is also no other explanation for the inspector's use of the otherwise surprising word "strategic" unless he was using it as shorthand for the structure plan. In any event, any nice construction of his wording is in my judgement put out of consideration by paragraph 13.38 of his recommendation, where he makes it quite clear that his recommendation is made so that there should be development "in accordance with Structure Plan Policy E.14". For all those reasons, therefore, the inspector's conclusion was clearly premised on the interpretation of Policy E.14 which is now accepted on all sides not to have been correct.
33. Second, if there was no shortfall, as is accepted, the basis for the inspector's recommendation disappears. Far from it being perverse of the local authority to do what it did and recognise the facts on the ground, it would in my view have been perverse for them not to have acted once having realised that what was in issue here was not a change of policy but correction of a mistake.
34. Third, if there were to be a new inquiry, as the applicant says it was perverse not to have, one is bound to ask: what was going to happen at that inquiry? This was an investigation that we attempted in the course of argument and which for my part, I have to say, never really clearly understood. It seems, however, clear that at the new inquiry the applicant would not be limiting himself simply to correcting the inspector in respect of a mistaken recall, because everyone agrees that there is no longer any argument about that. It appears that the applicant would rather be seeking to argue for an allocation above that which was envisaged in the then current structure plan: that is to say, in particular, it is going to renew its contention that it should have allocated to it, or at least made available to it, land for development for instance at Court House Farm. That is the case upon which the applicant failed at the original inquiry, because the inspector did not accept any suggestion that there should be development outside the ambit of the current structure plan. True it is that he envisaged the possibility of there being development at Court House Farm and in so doing said that he was exceptionally departing from the conclusions as to the Green Belt set out in paragraph 7.6 of his report which I have quoted earlier in the judgment; but he did that because, and saw there to be exceptional circumstances because, of the perceived shortfall in the E.14 allocation. He did not envisage that possibility because he thought that there should be allocation outside the E.14 limitation.
35. Fourth, as I have already indicated but I repeat, it is clear to me that the local authority did sufficiently consider objections made by the present applicant. The present applicant had an ample opportunity to comment on what was being proposed. It was a matter for the local authority to determine, within the limits of rationality, whether it would act on those recommendations.
36. In my judgement, therefore, there is no basis for the criticism of the judge in the grounds of appeal and no basis for the criticism of the local authority made in the claim. That suffices to require that this appeal should fail. I do, however, venture additionally to mention a number of matters that have caused me some concern in the course of this inquiry.
37. The first is this. The application is brought under section 287 of the 1990 Act and necessarily needed to be so brought. It appears to be accepted, and it is certainly said so in terms in paragraph 15-063 of the Fifth Edition of the Smith's Judicial REviewl of Administrative Action, that where a remedy such as the section 287 remedy is provided, then judicial review and the wider range of remedies available in judicial review is not available. Therefore, in order to pursue this case at all, the applicant had to decide what part of the local plan it wished to have quashed; and for the reasons that I have already indicated it includes in its application a quashing of a substantial part of the Green Belt proposals. That in itself, in my judgement, demonstrates the difficulty of proceeding under this section.
38. To grant a remedy in terms of quashing may be a logical remedy attached to a complaint made where the investigative process has come to an end and the error complained of is irrationality or unfairness of a public law nature in the actual proposals adopted, that is to say an error in the rational process of thinking of the local authority; but here the irrationality is said to be not in the result that the local authority produced but in its failure to take a particular procedural step. It is very much more difficult to see how quashing can be a justified response to such an error. It is even more difficult to see how a justified response to such an error can be to quash a part of the plan in respect of which no actual complaint was made by the applicant. If I thought, which I have already indicated that I do not, that there had been public law error in this case in terms of not requiring a public inquiry, by far the most obvious remedy for that error in public law terms would either be a declaration on the part of this court or a remission of the matter to the local authority. Neither of those remedies is available under section 287. That means (and I say this only as a matter of comment) that if a court found itself in a position where there had been such an error it would have to consider very carefully in terms of its discretion whether, nonetheless, it was appropriate to articulate that error and give relief in terms of quashing part of the plan. I mention this point because it was a matter of some concern, certainly to me and I think also to my Lords, as to how this jurisdiction could properly be administered.
39. That remark was obiter and what follows is even more obiter; but I mention four further difficulties about this application, brought to our attention by Mr David Holgate QC for the local authority, which should be put on record as further reasons why there would in any event be great difficulty in granting relief in this case.
40. First, and to some extent linked to what has already been said, the FCS is not in fact a party aggrieved (as section 278 requires) by the inclusion in the local plan of those parts of it that it wants to have quashed, because it did not in fact challenge at the local inquiry either the Green Belt allocation of Court House Farm or any part of the policy GRB/6.
41. Second, if one looks at the statement of objections put forward by the applicant in response to the local authority's statement of reasons, it is in my judgement right to say that it is difficult to extract from that anything more than that they were complaining at that stage about the local authority's construction of the structure plan. The complaint about failure to hold a new inquiry seems to have arisen since that point in time, and certainly the basis of the complaint to a large extent, and certainly before the judge, was that the local authority had misconstrued the plan: a contention that is now abandoned.
42. Third, if there were to be a new inquiry, it would take place outside the period of ACSP 1994 because that plan expired in the month of April 2001. Of course the local plan still remains in place and will be the basis for planning decisions on the part of the local authority. But the current strategic plan, and the strategic plan that will be in existence should a further inquiry take place, is a document called the Joint Replacement Structure Plan. That seeks to plan up to the year 2011. The policy in that in respect of the Royal Portbury Dock is significantly different from that contained in ACSP 1994. Without going into details, it eschews the earlier policy of allocating particular areas and instead sets out more general policy objectives including intensifying present use of land, and emphasises considerations that might be thought not to be wholly helpful to industrial expansion, such as the safeguarding of the environment and the need to emphasise transport requirements. Whatever the policy structure is, however, the difficulty would remain in granting the relief sought that one would be encouraging a further inquiry into part of a plan, the policy basis of which has now significantly changed. That might or might not be something that impeded relief, if relief were called for; but it is certainly a consideration that the court would have to have in mind in exercising any discretion that it may have.
43. Fourth, the joint replacement structure plan reinforces the present Green Belt policy. The present application, if it were successful and if at a further inquiry the inspector were persuaded, as on the previous occasion he was not, to extend development into part of the Green Belt, would appear to be inconsistent with the new policy. That again in my judgement demonstrates the difficulty of this application, seeking as it does to rewrite a significant part of the plan and, what is more, to rewrite it in terms that, at a policy level, are now different from those of the structure plan.
44. I go to those points simply to demonstrate the difficulty of the court's intervention in this area on the grounds that are contended for in this case. In the present appeal, however, those difficulties do not need to be confronted because, for the reasons that I have already indicated, there was no failing on the part of the local authority or on the part of the judge. For those reasons alone this appeal must be dismissed.
45. LORD JUSTICE JONATHAN PARKER: I agree.
46. LORD JUSTICE PETER GIBSON: I also agree, and would particularly wish to associate myself with the comments made by Buxton LJ on the awkwardness of seeking to apply section 287 to the particular circumstances of this case where the objection which is taken relates to a refusal to hold a further inquiry.
Order: Appeal dismissed with costs subject to detailed assessment.