England and Wales High Court (Administrative Court) Decisions

1. DEPUTY JUDGE: In this application Drexfine Holdings Limited apply under Section 287(1) of the Town and Country Planning Act 1990 to quash the Cherwell local plan, so far as it affects their land at Cherwell Quarry and Cement Works, Oxford ("The objection site"). Mr Neil Cameron, who appears for the Applicant, relies upon two main grounds:

2. The Objection Site.

3. The objection site comprises a substantial limestone quarry and cement works. It is 67.5 hectares in area. The cement works occupy some 6.5 hectares with buildings of 18,050 square metres floor space, in several cases over 20 metres high, with a chimney 76 metres in height. The site was previously owned by Blue Circle. The cement works ceased production in 1986. The site was included in the approved Green Belt under the Central Oxfordshire Local Plan adopted in 1992. The Applicant acquired the site in April 1995.

4. Green Belt Policy.

5. Central to the present application is the change in Government policy guidance for development control in the Green Belt following the publication of revised PPG2 in January 1995 ("PPG2 1995"). The former PPG2, published in 1988, ("PPG2 1988") provided that there should be a general presumption against "inappropriate development" within the Green Belt. At paragraph 13 it provided:

6. Paragraph 14 advised:

7. There were a number of decision in the Courts that emphasised the fundamental difference in approach for the decision maker between appropriate and inappropriate development in the Green Belt (for example, Pehrsson -v- Secretary of State for the Environment 1991 61 PCR 266). While appropriate development should be considered as any other development in the context of the development plan and other material considerations, inappropriate development was also subject to the particular presumption against development in the Green Belt set out in paragraph 13 of PPG2 1988. PPG2 1995 dealt specifically with inappropriate development in paragraphs 3.1 - 3.3. Paragraph 3.2 provided:

8. In paragraph 3.4 it provided:

9. That was new advice and a new category of "appropriate" development. The present application is concerned with redevelopment. To qualify as appropriate development the site had to be identified in an adopted local plan and the redevelopment would have to meet the criteria in paragraph C4 of annex C. If the site was not identified in the local plan, new building, not otherwise comprising appropriate development within the definition, would constitute inappropriate development and would be subject to the general presumption against such development. Annex C provided, so far as relevant:

10. It can be seen from paragraph C4 that the trigger for identification of a major developed site is "the opportunity for environmental improvement" without adding to the impact on the openness of the Green Belt and the purposes of including land within it. Openness of the Green Belt is dealt with in paragraph 1.4 of PPG2 1995 in the following terms:

11. Under the policy, even where the criteria under paragraph C4 are satisfied, the authority retains a discretion whether or not to identify the site in the local plan as a major developed site for redevelopment. The corollary of non-identification would be that redevelopment and any consequent environmental and other benefit would be less likely to come to fruition, given the presumption against inappropriate development.

12. The Cherwell Local Plan was placed on deposit in November 1992. It showed the objection site in the Green Belt. Policy GB1 provided a policy against inappropriate development in accordance with PPG2 1988. Policy R6 provided:

13. Blue Circle objected, seeking a policy for derelict and despoiled land and amendments to policy R6. The Respondent proposed changes, which met the objection in respect of the lack of a policy for derelict or despoiled land. Blue Circle's objection to policy R6 remained, in particular that the policy should be amended to allow other uses if very special circumstances were demonstrated to achieve restoration of the quarry and a beneficial after use. The local plan inquiry was held between November 1993 and April 1994. Blue Circle's objection was dealt with by written representations. The Respondent's case was that exceptions to the Green Belt should not be included in the local plan.

14. As I have indicated, in January 1995 PPG2 1995 was published. On 13 March 1995 a report to the Respondent's development committee considered the new advice, advising that detailed policy changes to the local plan would be submitted to the committee in due course. At paragraph 5.16 the report continued:

15. In March 1995 the local plan Inspector submitted his report to the Respondent. He dealt with Blue Circle's objection in respect of policy R6 in section 6.7. At paragraph 6.7.6 he concluded:

16. His recommendation was in accordance with that conclusion. Earlier in the report, while dealing with another objection, he concluded at paragraph 1.4.15:

17. At paragraph 1.4.17 (ii) he recommended:

18. On 17 July 1995 the Respondent published its statement of decisions and proposed modifications following consideration of the inspector's report. The reasons are set out in the annex to the report to the development committee dated 28 June 1995. The report dealt with the identification of certain sites pursuant to paragraph 3.4 of and annex C to PPG2 1995 and then continued:

19. A new policy GB2B was proposed, which provided as follows:

20. The objection site was included under that policy. The proposed justification included the following:

21. Oxfordshire County Council objected to the proposed modification, including at paragraph 8:

22. The Applicant supported the proposed modification but objected that the quarry was linked with the cement works under the policy as they were two separate sites.

23. On 13 March 1996 the Respondent published further proposed modifications to the plan in response to the objections. The proposed further modification deleted the objection site from policy GB2B. Its reasons were given in a report to the development committee dated 8 January 1996. That report dealt with the objection site as follows:

24. The report went on to reject the Applicant's objection that the sites should be considered separately under the policy and reiterated the view that it should not be identified as a major developed site.

25. By letter dated 17 April 1996 the Applicant objected to the further proposed modification, seeking that a fresh inquiry should be held into the objection and stating that the Applicant would be substantially prejudiced unless an inquiry was held. The grounds of objection included the scale of the existing buildings, that they had been in independent use for general industrial purposes and that identification of the objection site would accord with Annex C to PPG2 1995. The Applicant contended that fresh inquiry should be held because PPG2 1995 had not been considered at the earlier stage.

26. In September 1996 the Respondent published a statement of its decisions in respect of the objections to the further proposed modifications, adopting as its reasons those given in a report to the development committee on 22 July 1996. The Applicant's objection was dealt with on page 317 and following of the report, including the following:

27. The report dealt the request for a further public inquiry as follows:

28. No further inquiry was held. The plan was adopted incorporating the proposed further modification on 6 November 1996.

29. Relevant Statutory Framework.

30. The local plan was prepared under part II of the 1990 Act. The requirements that deal with proposed modifications, so far as relevant to the present application, include the following:

31. Section 43(1) provides that the authority can adopt proposals for a local plan either as originally prepared or as modified to take account of any objections to the plan or any other consideration which appear to be material. By Section 40(7) the authority may not adopt a local plan until it has considered any objection made in accordance with the Regulations. By Section 42(2) the authority has a discretion to cause a local inquiry to be held for the purposes of considering objections to proposed modifications.

32. The relevant regulations are the Town and Country Planning (Development Plan) Regulations 1991. By Regulation 18:

33. Regulation 17 provides:

34. At the relevant time guidance was given in respect of the holding of a further inquiry in paragraph 69 of annex A to PPG12 as follows:

35. Mr Cameron starts with reference to the Court of Appeal decision in Stirk -v- Bridgenorth District Council 1997 73 PCR 439 and in particular the judgment of Thorpe LJ at page 444, where he said:

36. Mr Cameron submits that the duty to act fairly includes the decision whether or not to hold a further inquiry. In that respect he refers me to British Railways Board -v- Slough Borough Council [1993] 2 PLR 42 at page 53G where Mr David Widdicombe, QC sitting as a Deputy High Court judge, said:

37. He puts his case in two ways, first that the Council failed to act fairly and, second, that its decision not to hold a new inquiry failed to have regard to material considerations or was perverse.

38. The material considerations, he submits, would include: first, that the Respondent should be properly informed on the facts and opinions relevant to the proposed modification - he refers me to the judgment of Mr George Bartlett QC sitting as a deputy High Court Judge in Warren -v- Uttlesford District Council [1997] JPL 562 at page 575; and second, the desirability of independent scrutiny of new proposals for the local plan - in that respect he refers to Harlowby Estates Limited -v- Harlow District Council [1997] JPL 541 at page 557. He submits that the Respondents should also have regard to the advice in PPG12, annex A, paragraph 69.

39. Against that background he submits that PPG2 1995 introduced a fundamental change in policy approach for the local plan, as acknowledged by the Respondent in its March 1995 report. That issue had not been considered at all in the original local plan inquiry. The desirability of a further inquiry was reinforced by the fact that: (1) the inspector had recommended the objection site for consideration in his report; and (2) the Respondent itself had in its original proposed modifications identified the site on the grounds that it met the criteria in annex C to PPG2. The objection of the County Council, and the reversal of view by the Respondent had never been tested at an inquiry or subject to independent scrutiny. Fairness demanded, he submits, that the Applicant should have the opportunity to have the further proposed modifications and its objections tested before an independent inspector and that the Respondent in turn should have the benefit of the inspector's independent advice and recommendation. Moreover, it is apparent from the reasons given in the report dated 22 July 1996 that the Respondent had failed to have regard to material considerations or had misdirected itself; in particular:

40. Mr Rhodri Price Lewis, who appears for the Respondent, submits that whether a decision not to hold a new local inquiry was unlawful or perverse should have regard to the whole local plan process and all the surrounding circumstances ( Warren -v- Uttlesford District Council (supra) at page 569). Material considerations for the exercise of the discretion whether or not to hold a further inquiry included the public interest in having an up to date statutory plan at the earliest opportunity. The principal consideration was, he submits, that the Respondent ought to be properly informed on the matters relevant to the modifications ( Warren -v- Uttlesford District Council (supra) page 575). The extent of participation and the opportunity to have its contentions considered by an independent inspector was also material. Mr Price Lewis submits that the physical characteristics and the likely impact of development of the objection site had already been fully considered at the earlier local plan inquiry and at the deposit stage of the present local plan, albeit, he accepted, in a different policy context. The Respondent, accordingly, had the views of the Applicant in its various representations and objections. Whether or not the site would meet the criteria in PPG2 1995 was a matter of planning judgment. The Respondent's conclusion that the site did not meet the criteria was supported by the County Council. It was unlikely that an inquiry would add anything to the representations already made. On the contrary, holding an inquiry would substantially delay the adoption of the plan. It could not be said that the Applicant's objection raised matters which were not at issue at all at the earlier stage of the local plan for the purpose of paragraph 69 of annex A PPG12. Accordingly a new inquiry was not justified.

41. Following the close of submissions, it came to my notice that on 19 June 1997 the Court of Appeal had dismissed an appeal against the decision in Warren -v- Uttlesford District Council , to which I had been referred. At page 10 of the transcript Schiemann LJ accepted the respondent's submission that the question for the Court was whether the decision not to hold a new inquiry was illegal on normal judicial review grounds. Thus fairness was a material consideration, but the weight to be given to it was for the authority subject for limits of administrative perversity. Schiemann LJ went on to consider the submissions as to unfairness and concluded at page 15d that he was not persuaded that in that case it was unfair not to open a new inquiry. The other members of the Court agreed with the judgment of Schiemann LJ. In this Court neither party sought to make further submissions in the light of this judgment of the Court of Appeal.

42. For the purpose of the present system of development control under part III of the 1990 Act and otherwise the statutory development plan has a central role to play. By Section 54A of the Act planning decisions are to be determined in accordance with the development plan, unless material considerations indicate otherwise. The local planning authority makes proposals for inclusion in the development plan and is, subject to call in by the Secretary of State, the ultimate arbiter as to objections made to those proposals and the final form of the plan to be adopted. In these circumstances, where the authority is, as it were, judge and jury for its own proposals in the light of any objections that may have been made, the Court of Appeal in Stirk (supra) emphasised the obligation on the authority to deal "thoroughly, conscientiously and fairly" with objections. Parliament included as part of the relevant statutory framework the obligation to hold a public inquiry where objections are made to the deposit plan. That ensures, where there are objections, independent scrutiny of the proposals by the local plan inspector. The authority is obliged to consider the inspector's report and to give a statement of its decisions and its reasons in that respect and for any proposed modifications. That is an important safeguard in the development plan process. There is no duty to hold a further inquiry into objections to modifications. The reason for that is plain. Modifications generally respond to objections to the original proposals, which have already been the subject of examination by the local plan inspector. Where there is no new issue or objection to be considered, a second inquiry would generally be unnecessary, costly and lead to delay. However, Parliament did consider it appropriate expressly to provide the authority with the power in its discretion to hold a further inquiry. The fact that a proposed modification involves issues which have not been subject to consideration at the deposit stage could be a highly material consideration in determining whether or not a further inquiry should be held. Considerations that would generally be material to that decision would include:

43. There is no obligation on an authority to give reasons for its decision whether or not to hold a further inquiry. However, if it does so, this Court can consider the reasons given in order to examine the basis in law for the decision.

44. Against that background I turn to consider the circumstances of this application. The effect of Green Belt policy and its treatment in the development plan was fundamental to the future of the objection site. In that respect the introduction of a class of appropriate development in PPG2 1995, which depended on identification as part of the local plan process, was itself of particular importance. For this purpose (apart from redundant hospital sites) the criteria in annex C did not have direct policy pedigree. While previously exceptions were not to be identified in the local plan, the issue of appropriateness under PPG2 1995 was in this respect to be determined through the local plan process.

45. The local plan had been deposited and the objections and local plan inquiry had been completed before the new advice in PPG2 1995 emerged. It was then open to the Respondent to take one of a number of courses. It could have decided that the need for an early statutory adopted plan was such that identification of sites should be subsequently considered in an early review of the plan. It could, on the other hand, have decided to take identification on board as part of the current local plan process, albeit recognising its obligation to ensure that objections were thoroughly and fairly dealt with and the prospect of some delay to the plan process. It could equally have taken a course somewhere between the two extremes, identifying some sites but leaving others for consideration on review. The Respondent decided to include identification as part of the emerging local plan process. In doing so it must be taken to have accepted the likely implications of adopting that course, including the prospect of some delay.

46. The basis for the decision whether or not to identify the site and its practical implications are important. This was not a case where the decision was to postpone the issue of identification of the site or even one where the Respondent determined in its discretion not to identify the site in the current plan. The stated grounds for the decision included that the site did not meet "the test outlined under paragraph C4 in that a substantial redevelopment at this location would have a considerable adverse effect on the Green Belt". The Respondent would have been aware that the objection by Blue Circle at the deposit stage (albeit not in the context of the present advice) had been on the basis of "a strictly limited amount of built development" and "limited enabling development". In its objection to the proposed further modification the Applicant had not suggested any particular scale of redevelopment save that the site would conform with annex C to PPG2 1995. In contrast to the position in Stirk, the Respondent had itself concluded in July 1995 (some eight months earlier) that the site met the criteria and had proposed its identification. I note that in his affidavit, sworn on 7 January 1997, Mr Burke, the Respondent's planning policy manager, deposes that he is satisfied "on reflection" that the "adverse planning consequences" were such that his "initial approach" was wrong, albeit that he does not explain his reasons further. Whatever those reasons, that reinforces the impression that in this respect there was a real issue to be addressed. Once made, a decision that the site did not meet the relevant criteria would, of course, be determinative for the period of the present plan. In practice it would also be likely to be influential in any review of the plan. It is a matter of record that the issue whether the site would meet the relevant criteria had not been the subject of earlier independent scrutiny, albeit that the local plan inspector had suggested that "the Council may need to consider whether the site should be identified in the recommended new Green Belt policy".

47. In my judgment the matters considered pursuant to Blue Circle's objection to the earlier Central Oxfordshire Local Plan and at the deposit stage in the present plan involved substantially different considerations. Whatever the physical features and impact of development of the site then debated, the consequences of redevelopment for the purposes of paragraph 3.4 of and annex C to PPG2 1995 as appropriate development within the Green Belt were not assessed. I do not, accordingly, accept Mr Price Lewis's submission that the relevant matters had in effect been considered earlier in the local plan process. In my judgment, for the purpose of the advice in paragraph 69 of annex A to PPG12 the issue that was central to the proposed modification and further proposed modification had not been "at issue at all at the earlier stage". I conclude, accordingly, that the Respondent's contention, as one of its stated reasons, that the matters raised in the objection were "at issue" at the earlier stage in the local plan process cannot be supported on the facts of the present application.

48. The reasons given by the Respondent do not refer at all to the desirability of independent scrutiny and evaluation of the different contentions or what would be fair in the circumstances. This was not a situation as in Warren, where the issues had been comprehensively examined at the original local plan inquiry. The question of identification would involve issues and evidence that had not and could not have been previously considered at the deposit stage or the subject of objection at that time. In these circumstances the considerations of the advantage of independent appraisal and fairness were highly material. The absence of any reference to those important considerations in the reasons given by the Respondent justifies in my judgment the inference that the Respondent failed to have regard to them.

49. In these circumstances I conclude that the Respondent failed to have regard to material considerations and misdirected itself in respect of the relevant policy in determining not to hold a further inquiry. I do not go so far as to hold that the decision not to do so was perverse. However, any such decision in the particular circumstances of the present case would have to have careful regard to the considerations to which I have referred and whether, for example, the issue of identification of the objection site could be dealt with in some other way that would allow early adoption of the plan without causing unfairness. To the above extent, accordingly, this ground of challenge succeeds.

50. First, Mr Cameron criticises the reasons given for the further proposed modification, reversing the proposed identification of the objection site for the purpose of annex C to PPG2 1995. He submits that, having previously accepted that the site met the criteria, the reason that it would "not meet the test outlined under paragraph C4 in that substantial redevelopment at this location would have a considerable adverse effect on the Green Belt" is wholly inadequate. "Substantial" redevelopment is not part of the criteria in annex C. Under the criteria, he submits, the extent of redevelopment is itself dictated by the impact on openness (para C4(a)). There is no indication what the Respondent had in mind as "substantial redevelopment" or what was the nature of the effect that disqualified the objection site under annex C notwithstanding those limitations. He submits that the reasons given in response to the Applicant's objections to the further proposed modifications are equally inadequate. They incorporate the reasons originally given for the further proposed modifications. They reiterate the conclusion in somewhat different language, namely "the site's identification would not meet the test outlined under C4 of annex C that redevelopment should have no greater impact than the existing development on the openness of the Green Belt and the purposes of including land in it." There is no clue as to why not. If the conclusion was that any redevelopment would have that effect, clear reasons would be required to explain the apparent volte face. Mr Cameron referred me to the decision of Lightman J in Regina -v- East Hertfordshire District Council ex parte Beckman (unreported judgment delivered on 26 June 1997) and in particular to page 11 of the transcript, where Lightman J said:

51. The conclusion that the existing buildings had a limited life span does not explain the overall conclusion nor would the conclusion that the cement works use was sui generis and thus not within the Use Classes Order. The opportunity of establishing "very special circumstances" to justify what would then be inappropriate development was no justification for the decision not to identify the site in the first place. Mr Cameron submits that the elaboration of the reasons given by Mr Burke in his affidavit with reference to employment implications cannot form part of the reasons required under the Regulations and is as such irrelevant. If anything, that evidence demonstrates the inadequacy of the reasons that were put forward. Mr Cameron further submits that the Applicant has been substantially prejudiced because in the circumstances it does not know whether the decision taken was within the powers of the act and cannot know for the future how the deficiencies relied upon by the Respondent could be addressed for the purpose of any proposed redevelopment.

52. Mr Price Lewis submits that the reasons were entirely adequate if they are read as a whole by an "informed reader", particular one who was acquainted with the reports of the two earlier local plan inspectors and the subsequent committee reports. The question of adverse impact on the Green Belt and the application of the criteria in annex C was entirely judgmental and did not call for greater particularity by way of reasons. Representations made by the Applicant were dealt with comprehensively in the relevant reports. He submits that there is in any event no prejudice as there were sound reasons for not identifying the site under PPG2 and no likely implication for the prospects of permission for any future redevelopment.

53. As Mr Price Lewis submits, the reasons should be read as a whole as if by an informed reader. The question of prejudice should itself be determined in the light of the outcome of the completed local plan process as a whole. The extent of reasons required in any case will depend upon its individual circumstances. In the present case those circumstances included:

54. The reasons given in the report for the further proposed modification included that the buildings were likely to have a "limited life span" and the "main concern" that the objection site would not meet the test outlined under para C4 in that "substantial redevelopment" would have a considerable adverse effect on the Green Belt. That did not give, in my judgment, any explanation of the basis for the change of mind, the scale of redevelopment envisaged or the Green Belt implications that had led to the reversal of view. The response to the objections to the further proposed modifications did not expand to any material degree on those reasons. In particular, the reference to the fact that the use was sui generis did not explain the principal "concern" that the objection site would not meet the test, particularly bearing in mind the Respondent's previous view and the control on the extent of redevelopment under the criteria. In the circumstances, in my judgment, the reasons did not adequately inform the Applicant of the reasons why the Respondent had reversed its earlier conclusion that redevelopment would offer the opportunity for environmental improvement without adding to the impact on the openness of the Green Belt. The Applicant had no means of knowing why there had been that change of mind, whether the decision was made within the powers of the Act or, indeed what it had to address in any future redevelopment proposals. I conclude, accordingly, that the Respondent failed to satisfy its obligation under the Regulations to give reasons for its decisions and further that the Applicant was as a result substantially prejudiced. Accordingly this ground of challenge also succeeds.

55. In conclusion, in my judgment the Respondent acted unlawfully in its decision not to hold a further inquiry and failed to give adequate reasons for its decision to make the further proposed modification and in rejecting the Applicant's objection thereto. In my discretion I conclude that in this respect the local plan ought to be quashed insofar as its policies affect the objection site. I will hear submissions as to the appropriate form of order.

56. DEPUTY JUDGE: Thank you, Mr Cameron, for your fax. I am also very grateful to Mr Rhodri Price Lewis for his fax yesterday.

57. Accordingly, subject to any corrections as to fact, for the reasons set out in the draft unrevised judgment which I hereby hand down I propose to allow this application.

58. As I said at the end of that judgment I will hear submissions as to the appropriate form of order. Before I go any further, however, can I make sure that you have copies of the draft judgment.

59. DEPUTY JUDGE: Mr Reed, have you had a copy?

60. DEPUTY JUDGE: As I said at the end of the judgment I will hear submissions as to the appropriate form of order. Having considered the matter myself, if it is a helpful starting point, it seemed to me here that the proposals map would show "the objection site" within the Green Belt and that the appropriate order could be simply to quash the proposals map so far as it related to "the objection site" and that no further order would then be required at this stage.

61. In particular I considered the form of the modification to the policy R6 and to GB2A, as they were, and although I will hear submissions on it it seemed to me there was nothing there to be quashed other than the proposals map. I hope it is helpful to indicate that.

62. MR CAMERON: I am grateful. My Lord, can I indicate that I have discussed this matter both with my learned friend Mathew Reed and also with Rhodri Price Lewis and I have drawn up a note of what I discussed with both of them and what I understand the District Council to find acceptable as well.

63. DEPUTY JUDGE: That is very helpful.

64. MR CAMERON: May I hand that up?

65. MR CAMERON: Can I emphasise that this is just a note, it is not intended to be a draft of any order and it was, in fact, drawn up and discussed before your Lordship's judgment was received just in anticipation of the eventually.

66. DEPUTY JUDGE: Of course. Can I read it through then. Thank you. ( Pause) You are seeking more than I indicated a moment ago.

67. MR CAMERON: My Lord, yes. As far as the proposals map is concerned, that is the order which your Lordship contemplated.

68. DEPUTY JUDGE: Just let me make a note of that.

69. MR CAMERON: As far as GB3 is concerned can I invite your Lordship to turn to page 442.

70. DEPUTY JUDGE: Is that the second volume?

71. DEPUTY JUDGE: Four-hundred-and-forty-two.

72. MR CAMERON: My Lord, I suspect it may be but mine is all in one.

73. DEPUTY JUDGE: Is this the plan as adopted?

74. MR CAMERON: This is the plan as adopted, my Lord.

75. MR CAMERON: At 1.15 in the reasoned justification to GB3 there is a reference to two major sites having been identified within the plan area and what I invite the court to do is to quash that part of the reasoned justification so as to allow the Council, if it thinks fit following any further enquiry of any other process, to alter that paragraph to read "three major sites" and then to insert a reference to "the objection site". That would be the purpose of quashing that part of the plan.

76. If it is not quashed then the plan would read that there are two major sites identified within the plan area and if as a result of reconsideration of this matter it was decided to identify "the objection site" that would be inconsistent with the reference to "two major sites".

77. DEPUTY JUDGE: Subject to any submissions which you may have, obviously I would be astute not to effect any site that had at the moment been identified. If the word "two" is quashed, leaving the justification for the other two sites, then the public would still have the explanation. You say unless I quash the word "two" either it will result in grammatical curiosity or you say it might go as far as preventing another site being identified, that is your concern.

78. MR CAMERON: That is my concern.

79. DEPUTY JUDGE: That is plainly important. Thank you.

80. MR CAMERON: In my note I indicate that it is only the first line indeed, as your Lordship, pointed out only the first word of the line.

81. MR CAMERON: The other point is in relation to policy paragraph 6. That can be found on page 445 of the bundle. It is the plan as adopted again.

82. MR CAMERON: Originally when the proposed modifications were made and "the objection site" was identified as a major development site there was a reference back to the fact that the Shipton on Cherwell site was identified as a major development site, there is not at this moment. I am inviting your Lordship to quash that policy and its reasoned justification so as to allow the site and its future to be reconsidered so as to allow any necessary amendment either to the policy or reasoned justification which arose as a result of the reconsideration of the site.

83. DEPUTY JUDGE: Can I just read it through to myself. ( Pause) I have a note that page 360 was the modified form for this originally.

84. MR CAMERON: It may be 206, my Lord, which I have just turned up.

85. DEPUTY JUDGE: Let me just turn that up.

86. MR CAMERON: There is a recommendation in relation to paragraph 6.47 of the reasoned justification. That is as far as the answer to your Lordship's question was concerned in relation to reasoned justification. Of course, the recommendation policy itself should be changed to refer back to the major development site policy as they then were: GPA, GB2A, GB2B, now GB3.

87. DEPUTY JUDGE: Yes. On your submission if policy R6 was quashed to give the ability to consider that recommendation..... It does not seem to me in any event that the modification to the justification bares on this particular Green Belt point, which we are concerned with, so if the policy is quashed that would meet what you seek in this respect, would it?

88. MR CAMERON: I seek that the policy and the reasoned justification be quashed because if the policy is quashed then the Council should have the opportunity to reconsider the reasoned justification.

89. MR CAMERON: I emphasise the fact that the Council on the hypothesis that they lost, which turned out to be the case, perhaps was sent in an order of this form.

90. DEPUTY JUDGE: Is that in the note here or is it something that you are just telling me?

91. MR CAMERON: This note was put to my learned friend. Mr Reed will be able to confirm that it was put to Mr Price Lewis who took instructions on it and it was discussed between us.

92. DEPUTY JUDGE: I am grateful for that. The first word or line as noted at 1.15, policy R6 and the justification; does that then cover what you are seeking?

93. MR CAMERON: It does and the proposal map as your Lordship has already has said.

94. DEPUTY JUDGE: Do you want to add anything?

95. MR REED: My Lord, what Mr Cameron said was correct. It is my understanding that subject to what Mr Price Lewis had to say on the matter it was acceptable, and as I understand it, Mr Price Lewis found it acceptable.

96. DEPUTY JUDGE: Then I can make an order in those terms.

97. MR REED: My Lord, the only other point I would add is to indicate that it was either the first word or first line of the reasoned policy and paragraph 1.15, my Lord, I am in your hands as regards that.

98. DEPUTY JUDGE: The argument there is simply not to strike out of the plan matters that are going to help the public on other policies and it seemed to me that the other two sites are not affected, so far as any submission made to me was concerned, and therefore to leave a justification for those two sites that start with some sort of grammatical introduction seemed sensible to me. Which page is it on?

99. MR REED: It is on page 442. I think it is right to say that if the first word were taken out and it was "major sites have been identified" they could be considered as additional words but at the same time it could be left, that is to say left without the word "two", it might indicate that that is all there should be in there.

100. DEPUTY JUDGE: I see. So what you are saying is that it will probably be easier to take out the whole sentence and leave -- I follow the point.

101. MR REED: On the instructions that I have it would indicate that that whole line should come out.

102. DEPUTY JUDGE: I understand that point. I am grateful for that. Was there anything else?

103. MR REED: There was not, my Lord.

104. DEPUTY JUDGE: I will make the order so that it is clear on the shorthand note. I therefore order that the local plan should be quashed in respect of paragraph 1.15 of the justification so far as the first line is concerned, that is: "two major sites had been identified within the plan area as follows...".

105. Secondly, policy R6 and the justification at paragraph 6.45 in its entirety and the proposals map so far as it affects "the objection site". Are there any applications?

106. MR CAMERON: I apply for my costs, my Lord.

107. MR REED: I cannot resist that.

108. DEPUTY JUDGE: The application, accordingly, will be allowed in that effect with the applicant's costs to be paid by the respondent. Thank you very much.