England and Wales High Court (Administrative Court) Decisions

FIRST CORPORATE SHIPPING LIMITED (trading as BRISTOL PORT COMPANY) v. NORTH SOMERSET COUNCIL [2001] EWHC Admin 19 (26th January, 2001)

Case No: CO/2700/2000

Neutral Citation Number: [2001] EWHC Admin 19

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 26^th January 2001

MR JUSTICE FORBES:

1. Introduction The Claimant, First Corporate Shipping Limited, is the owner and operator of the Port of Bristol and trades as "The Bristol Port Company" (hereafter called "BPC"). Royal Portbury Dock forms part of the Port of Bristol. The Defendant, North Somerset Council (hereafter called "NSC"), is the current relevant local Planning Authority for the area which includes Royal Portbury Dock. In these proceedings, which are brought under Section 287 of the Town and Country Planning Act 1990("the 1990 Act"), BPC seek an Order that various specified parts of the North Somerset Local Plan 1999 (hereafter called "The NSLP 1999") be quashed, insofar as they relate to Royal Portbury Dock.

2. The Legal Framework So far as material, Section 287 of the 1990 Act provides as follows:

" 287 (1) If any person aggrieved by ... a local plan ... desires to question the validity of the plan ... on the ground -

(a) that it is not within the powers conferred by Part II, or

(b) that any requirement of that Part or any regulations made under it has not been complied with, in relation to the approval or adoption of the plan ... he may make an application to the High Court under this section.

(2) On any application under this section the High Court -

...

(b) if satisfied that the plan .. is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or any regulations made under it, may wholly or in part quash the plan ... insofar as it affects any property of the applicant.""

3. Part II of the 1990 Act contains the relevant statutory provisions which relate to the preparation, making and adoption of a local plan. Accordingly, unless otherwise expressly stated, all references to statutory sections in this part of this judgment are references to sections of the 1990 Act.

4. Section 36 (1) imposes a duty upon the local planning authority to prepare a local plan for its area. Section 36 (4) provides that the local plan "shall be in general conformity with the structure plan". The current relevant structure plan in this case is the "Avon County Structure Plan, incorporating (the) Third Alteration - July 1994" (hereafter referred to as the "ACSP 1994").

5. Section 53 empowers the Secretary of State to make regulations with respect to (inter alia) the form and content of local plans and the procedure to be followed "in connection with their preparation, withdrawal, adoption, submission, approval, making, alteration ... and replacement". The current regulations are the Town and Country Planning (Development Plan) (England) Regulations 1999 (S.I. 1999 No 3280 - hereafter called "the 1999 Regulations"). The 1999 Regulations came into force on 4 January 2000 and replaced the Town and Country Planning (Development Plan) Regulations 1991 (S.I. 1991 No 2794 - hereafter called "the 1991 Regulations") which were expressly revoked on that date by the 1999 Regulations. However, any step taken under the 1991 Regulations before 4 January 2000 remains valid because the 1999 Regulations provide that it "shall be treated on and after commencement as having effect under any similar provision" in the 1999 Regulations: see Regulation 45 of the 1999 Regulations. At all material times the preparation, making and adoption of the NSLP 1999 were conducted under the provisions of the 1991 Regulations, which were the regulations in force at the time and to some of which it will be necessary to refer in the course of this judgment.

6. Section 40 and the relevant regulations made under Section 53 make provision for public participation in the preparation, making and adoption of a local plan by (inter alia) requiring the draft local plan to be deposited for inspection and providing for the making of objections to the plan or any part of it.

7. Section 42 requires the local planning authority to cause a local inquiry to be held for the purpose of considering objections to the draft local plan, insofar as those objections have been made in accordance with the regulations. It should be noted that, when the draft of the local plan with which these proceedings are concerned was placed on deposit in 1994 in accordance with Section 40 and the material regulations, the relevant local planning authority at the time was Woodspring District Council ("Woodspring DC") and, at that stage, the deposited draft local plan was entitled the "Woodspring Local Plan (Deposit Version) 1994" (hereafter referred to as the "deposit WLP 1994"). Accordingly, the local inquiry at which the duly made objections to the deposit version of what later became the NSLP 1999 were considered, which objections included objections made by BPC (as to which, see below), was actually concerned with the deposit WLP 1994. In due course, NSC succeeded Woodspring DC as the relevant local planning authority and duly took over the deposit WLP 1994, which was then in due course renamed the North Somerset Local Plan 1999 (ie "the NSLP 1999"). It is perhaps worth mentioning at this stage that the local inquiry into duly made objections to the deposit WLP 1994 lasted from November 1995 until January 1997 and that the Inspector's resulting report and recommendations were not published until some 18 months after the conclusion of that inquiry (September 1998).

8. The relevant provisions of the 1991 Regulations can be conveniently summarised, as follows:

Regulation 11 provides for the placing on deposit of the draft local plan for public inspection, in accordance with Section 40 (2);

Regulation 12 provides for objections to the deposit plan to be in writing and made within a 6 weeks' period: a representation that a development or use of land ought to be included in the plan is treated as an "objection" (see Reg. 12(4));

Regulation 14 provides for a local inquiry to be held pursuant to Section 42 to consider those objections to the deposit local plan which have been made in accordance with the regulations;

Regulation 16 (1) provides that, after considering the Inspector's report on the local inquiry, the local planning authority must prepare a statement of its decisions, and the reasons for those decisions, reached in the light of the Inspector's report and recommendations;

Regulation 16 (4) provides that, where the Inspector has recommended that the draft local plan be modified "in a manner specified in the report" and the local planning authority intend to disagree with any such recommendation, the authority must make a list of those recommendations available: Regulation 16 (4) (c) then provides an opportunity for objections to be made under Regulations 18 (3) and (4) to the local planning authority's decisions concerning the Inspector's recommendations and Regulation 16 (5) empowers the local planning authority to cause a local inquiry to be held into any such objection;

Regulation 18 (1) provides that the local planning authority can propose modifications to the draft local plan: a list of the proposed modifications must be prepared with reasons in support and the document placed on deposit and published;

Regulations 18(2) and (3) provide for objections to any such proposed modifications to be made in writing within 6 weeks;

Regulation 18 (5) provides that a local inquiry may be held in order to consider duly made objections to the proposed modifications;

Regulations 19 and 20 make appropriate provision for the procedures for adoption of a local plan and

Regulations 21 to 25 deal with the Secretary of State's powers to intervene and determine the contents of local plans.

9. The Structure Plan and Local Plan Framework Before setting out a summary of the background facts with which these particular proceedings are concerned, it is convenient at this stage to identify and refer to some of the provisions of various structure and local plans which have a bearing on the issues raised by this application.

(a) The Avon County Structure Plan 1985 ("the ACSP 1985") was approved by the Secretary of State in July 1985. The plan period was from 1979 to 1991. Paragraph 8.109 of the Explanatory Memorandum to the proposed structure plan, which was submitted to the Secretary of State in October 1992 as part of the process of seeking his approval of the ACSP 1985, was in the following terms:

"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 the 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 (741 acres) within that specified in the Bristol Corporation ( West Dock) Act 1971 as the "Limit of deviation of works" should be used primarily for light and general industry and warehousing associated with the Dock ..."

10. Policy E.14 of the proposed structure plan was set out in the Explanatory Memorandum, immediately after paragraph 8.109 quoted above, and expressed as follows:

"E.14 Land amounting to 300 ha (741 acres) 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.""

11. In my opinion, it is clear from the wording and context of paragraph 8.109 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 Dock) Act 1971 (hereafter referred to as "the Limit of deviation"). 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.

12. At the 1983 examination in public concerning the proposed structure plan, the Port of Bristol Authority gave evidence as to the correct figure of the area of land for the proposed development within the Limit of deviation as follows (see Appendix D to the Report of the Panel at page 85):

"5. The Port of Bristol Authority commented on the Plan's policy as they affected Royal Portbury Dock. They corrected the County Council's opening remark that there were 300 ha of land within the limits of deviation set out by the West Dock Act. The total land area within these limits was 426 ha of which 28 ha were water and a further 104 ha, within the Customs fence, directly concerned with dock operation. The remaining 294 ha were equivalent to the area covered by Policy E.14 . This last area was subject to normal planning control and was being developed as a large scale trading estate ... The PBA therefore accepted the priority accorded by Policy E.14 but thought it unrealistic to tie the further development more stringently to dock related uses ...."

13. As approved by the Secretary of State in July 1985, Policy E.14 of the ACSP 1985 was expressed in terms which were, in all material respects, the same as those used in the 1982 Explanatory Memorandum to the proposed structure plan, ie:

"E.14 Land amounting to 300 ha, in addition to that proposed in Policy E5, adjoining Royal Portbury Dock is proposed for Warehouse and Industrial Development ... 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."

14. Accordingly, as I have already indicated, I am satisfied that the 300 ha of land "adjoining Royal Portbury Dock", which Policy E.14 of the proposed structure plan required to be provided for specified types of warehouse and industrial development at Royal Portbury Dock, referred to land situated entirely within the Limit of deviation. I am also satisfied that, although Policy E.14 as approved by the Secretary of State, still referred to an area of 300 ha, the more accurate figure for the area of land actually available for development within the Limit of deviation (and thus the area of land to which Policy E.14 referred), was 294 ha, after appropriate allowance had been made for the area of water and the area of land within the Customs fence, both of which areas formed part of the 426 ha of which the total area of the Limit of deviation consisted.

15. (b) The Avon County Structure Plan: First Alteration 1988 (the "ACSP 1988") was approved by the Secretary of State in December 1988. Policy E.14 of that plan was in identical terms to Policy E.14 of the ACSP 1985. Accordingly, for the reasons already given, I am satisfied that the 300 ha referred to in that Policy was a reference to land situated entirely within the Limit of deviation at Royal Portbury Dock. It should be noted that the plan period for the 1988 ACSP was 1985 to 1996.

16. (c) The Clevedon Nailsea and Portishead Area Local Plan 1992 ("the CNPALP 1992") was the local plan for the area which included Royal Portbury Dock for the period 1985 to 1996 and was the local plan which immediately preceded the local plan which is challenged in these proceedings. The CNPALP 1992 had been placed on deposit in 1990, before being adopted in 1992. In the deposit version, details of the supply of land available to meet the requirements of Policy E.14 of the approved structure plan (ie the ACSP 1988) appear to show a shortfall of approximately 60 ha in the amount required by the Structure Plan (ie the area of 300 ha required by Policy E.14), notwithstanding the apparent inclusion of 37.2 ha of land within the Customs fence (land which had been previously excluded when calculating the land available for development within the Limit of deviation: see above): see paragraphs 3.4 and 3.9 together with Table 6 and Schedule 3C of the deposit plan's 1990 written Explanatory Statement. However, it is clear from Proposal Map Sheet 2 of the deposit plan that the supply of land to meet Policy E.14 of the ACSP 1988, as referred to in Table 6 and Schedule 3C, was still to be met by land situated entirely within the Limit of deviation. In the Written Statement to the approved CNPALP 1992 (dated August 1992), the details given of the supply of land available to meet the structure plan requirement of 300 ha appear to show a shortfall of 52.22 ha, despite the continued inclusion of 37.2 ha of land within the Customs fence: see paragraph 3.4, together with Table 5 and Schedule 3C of the Written Statement. However the Remarks/Requirements column in Schedule 3C recorded certain observations which suggest that areas of land within the Limit of deviation had been excluded from that calculation (eg see the comment against Site EC3 which states that areas required for tree planting had been excluded).

17. (d) The Avon County Structure Plan incorporating Third alteration 1994 (the "ACSP 1994") is the current structure plan and the plan which is immediately relevant to these proceedings. This structure plan was placed on deposit in 1991, before being adopted in July 1994 and covers the plan period 1989 to 2001. Paragraph 4.63 of the Explanatory Memorandum to the deposit version of this structure plan 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 is 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 1971, often referred to as "the West Dock Act". The proposed amended wording for Policy E.14 (see above) was duly incorporated unaltered into the ACSP 1994 when it was adopted in July 1994. For the reasons already given, I am satisfied that the reference to "210 ha ... adjoining Royal Portbury Dock" in Policy E.14 of the current structure plan is therefore a reference to an area situated entirely within the Limit of deviation. However, whilst that remains the current wording of Policy E.14 of the structure plan which is most immediately relevant to these proceedings, it should be noted that Avon County Council ceased to exist on 1 April 1996 and that a Joint Replacement Structure Plan for Bath and North East Somerset, Bristol, North Somerset and South Gloucestershire was placed on deposit in June 1998 ("the JRSP 1998"). The JRSP 1998 is for the plan period 1996 to 2011. In due course it will replace the ACSP 1994 as the structure plan referable to Royal Portbury Dock and is, I am told, now in the form proposed for adoption (subject to ministerial call-in on housing issues). Paragraph 5.33 and Policy 27 of the Explanatory Memorandum to the JRSP 1998 provide as follows:

"Royal Portbury Dock

5.33 Dock-related uses should be encouraged on the employment land adjacent to Royal Portbury Dock. The economic well-being of the Dock and associated activities, and the opportunities identified for economic expansion at East Portishead must be supported by improvements to transport links, particularly rail, with recognition given to the potential for re-opening the Portishead line. However, development must safeguard the environmental value of the Gordano valley; the wildlife significance of the coast; and the link with the adjacent countryside, and should not prejudice opportunities for meeting the other development requirements of the wider area.

POLICY 27

At Royal Portbury, the continued expansion of port operations and associated activities will be supported with priority being given to intensifying the use of the land already identified for such purposes and improving transport links, in particular by rail, subject to safeguarding the environment, provision for other uses and meeting transport requirements."

19. It will be noted that Policy 27 of the JRSP 1998 (which I understand to be the Policy which will replace Policy E.14 of the current structure plan) no longer refers to any specific area for the future development of Royal Portbury Dock and that priority is to be given to intensifying the use of the land already identified for the continued expansion of port operations and associated activities.

20. The Factual Background It is accepted that Royal Portbury Dock is a major port facility which is important to the local, regional and national economy. Its importance in these respects is acknowledged and emphasised by the various structure and local plans to which I have already referred. However, it is BPC's case that there is now, and has been for some time, a pressing requirement for a further supply of land to meet the need for continued expansion of the port. The current position is succinctly stated by Mr David Ord, the Managing Director of BPC, in paragraphs 20 to 24 of his first witness statement, dated 9 August 2000, as follows:

"20 I deal with this matter to some extent in the proof of evidence I prepared for the NSLP inquiry referred to in paragraph 14 above. The needs of the Port have, since then become even more pressing; we have, quite simply, run out of land to meet the requirements of customers for continued expansion.

21 The Port is of considerable importance to the regional economy, providing a substantial employment base. In addition, it forms a major transportation hub.

22. The Port had made substantial losses through the 1980s. Since BPC acquired the Port in 1991 it has, after considerable effort and capital investment, returned it to profitability. It has re-organised its operation and, together with joint venture partners, has invested approximately £270 million to re-equip the Port so that it is now one of the most modern in Europe. Throughput has risen from 4 million tonnes to about 8 million tonnes per year. The Port has around 525 employees all of whom are permanent and full time, this being unique in the UK port industry. Including the Port's own employees, BPC believes that between 3,000 and 5,000 workers are employed on the Port estate as a whole. I explain all of this to demonstrate how the Port is of fundamental importance to the regional economy and how the future economic stability of the region depends on its sustained growth.

23. The Port is also important for the economy of the United Kingdom as a whole. It is an important car import and animal feed terminal, supplies power station coal to Didcot, and has the second largest forest products terminal in the United Kingdom.

24. That the Port has such an important role is clearly recognised, both by the provisions of the Avon County Structure Plan and the comments of the Inspector at the NSLP inquiry."

21. So it was that, when the deposit WLP 1994 (to which I shall also refer in this part of my judgment as "the deposit plan"), was placed on deposit, BPC entered a duly made objection to the effect that insufficient land had been allocated in the deposit plan to accommodate the expansion of Royal Portbury Dock. Paragraph 13.25 of the Written Statement to the deposit plan acknowledged that Policy E.14 of the structure plan (ie the ACSP 1994) proposed that 210 ha of land be allocated "for general industry, storage and distribution uses at Royal Portbury Dock, with priority given to those uses associated with the Dock". For the reasons which I have already given, I am satisfied that this reference to 210 ha should be understood to be and was a reference to development land situated entirely within the Limit of deviation, although this was not appreciated at the time of the local inquiry (see below). With regard to this particular structure plan requirement of 210 ha for the specified development of Royal Portbury Dock, Table 7 of the Written Statement to the deposit plan showed an existing allocation (or supply) of 150.68 ha (of which 34.73 ha was said to have been developed in the period 1989 to 1994), thus showing an apparent shortfall, or non-allocation, of just under 50 ha. Paragraph 13.39 of the Written Statement then went on to state:

"Royal Portbury Dock

13.39 The Dock has developed rapidly in the 1990's following its disposal by Bristol City Council. The whole area is covered by the West Dock Act which obviates the need to obtain planning permission for dock related development. In total 120 hectares remain to be developed the majority of which is located on its western boundary. In order not to prejudice expansion of dock facilities, land to the north of the pylons crossing the site should remain exclusively for dock related development."

22. At the local inquiry into the duly made objections to the deposit plan, the basic point made on behalf of BPC by Mr Ord in support of BPC's main objection was that insufficient allowance had been made in the deposit plan for further Port related growth. In his evidence to the Inspector, Mr Ord stated as follows:

"1.2 ... Royal Portbury Dock was constructed by the City Council in the early seventies and is still the most recently built and modern dock facility in the UK. The dock is able to receive bulk vessels of up to 130,000 tonnes, this is larger than London, Liverpool and Southampton and very significant in the growth of the Port.

...

1.4 Over £250 million has been invested in projects and infrastructure since taking over the management of the Port. All development achieved in this period have been port related, with the only exception being a 26 acre site known as Portbury West, the proceeds of which were used to purchase land closer to the dock which was outside the docks ownership.

1.5 A photograph and plan marked as appendix 2 shows the current state of development and you will note that all available land is developed or committed. The local plan map shows various sites marked as E20B, E21B and E26A and quotes in Schedules 14C and 14D an area of land totalled as 124.75 hectares. A site visit will demonstrate that a majority of this is now developed, and the remainder can be separately evidenced as committed to new customers.

...

1.7 The former Local Plan recognises the importance of the Royal Portbury Dock Complex. In clause 2.24 it quotes as being of "benefit to businesses, tourists and residents alike." We would go further and say that it is of considerable importance to the regional economy providing a substantial employment base. In addition it forms a major transportation hub and therefore the future stability of the region depends on its sustained growth.

1.8 In the light of the above and visual evidence gained from a site visit we would suggest to the Inquiry that insufficient allowance has been made for the further Port related growth.

1.9 It is recognised that all the options for expansion are unpalatable in one form or another. Expansion to the west into the "green gap" between the Portland the settlements to the West are the least favoured due to the importance of the valuable wildlife areas and the need to maintain a separation.

1.10 The Port Estate includes undeveloped fields towards the River Avon (shown hatched on the plan attached as appendix 3), which could be developed using General Development Order powers but we are sensitive to the importance of the environmental value of these fields. Nevertheless they have to remain an option for future growth.

1.11 The least difficult option in our view would be the development of land, for Port related uses only of the premises known as Court House Farm as shown in the plan attached as appendix 3. The land is sandwiched between the Motorway and the Port and has, at the junction between the two, the disused rail link into Bristol Temple Meads and the main line. It is our intention as soon as cash resources are available to recommission the rail line which is likely to be within the next two years. This site would be particularly attractive from that perspective.

1.12 The last option would be the allocation of port related uses on part of the land adjacent the old Portishead Dock and former Power Station lands, known as Portbury Park and identified on the extract from the Local Plan attached as appendix 4. The Royal Portbury Dock Estate extends well towards the west at the River Severn boundary and an exclusive access road, from the Port to this site could be established behind, and as part of the new Sea Defence Wall.

1.13 In summary we would strongly urge the Inquiry to consider these sites be allocated to specifically Port Related Use to accommodate further expansion, and to ensure the future growth of the Port is not compromised."

23. It is clear from Mr Ord's evidence to the local inquiry that, in presenting BPC'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 up till then (which necessarily included all such 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, described as "Potential Future Sites" in the map which was attached to Mr Ord's evidence as Appendix 3 (see paragraph 1.10 of his evidence, quoted above.).

24. As to the future growth of Royal Portbury Dock, Mr Ord identified a total of four areas for possible future expansion and summarised the various problems with or objections to expansion which arose in respect of each such area: see paragraphs 1.9 to 1.12 of his evidence, quoted above. Of these four possibilities, Mr Ord described the Green Belt site at "Court House Farm", as the least difficult option: see paragraph 1.11 of his evidence, quoted above. It appears that BPC did not put forward any detailed evidence at the inquiry in support of the possible dock-related development of any of these areas or any other area outside the Limit of deviation.

25. It is to be noted that the only objection made by BPC to the deposit plan proposals with regard to the Green Belt boundary was in respect of the inclusion within the Green Belt of one site, apparently situated within the Port Estate . BPC did not make any objection in respect of the inclusion within the Green belt of "Court House Farm" not did BPC make any objection with regard to the proposed closely related Policy GRB/6 (as to which, see below).

26. So far as concerns the Green Belt, Paragraph 7.11 of the Written Statement to the deposit plan stated as follows:

"...The District Council considers there are no exceptional circumstances which justify amending the established Green Belt boundary ...""

Proposal GRB/1 in the Written Statement to the deposit plan stated that the boundary of the Green Belt was to be that shown on the Proposals Map and Inset Maps. Paragraphs 7.32 and 7.34 and Policy GRB/6 in the Written Statement were in the following terms:

"Land Between Portishead and Royal Portbury Dock

7.32 Land between the settlement boundary of Portishead and Royal Portbury Dock was safeguarded in the South West Avon Green Belt Local Plan. Although not proposed as Green Belt, it was subject to a policy whereby the land was to be treated as Green Belt until development needs had been established through other Local Plans.

7.33 The adopted Clevedon, Nailsea and Portishead Area Local Plan and now this Local Plan make it clear that development of the land is inappropriate for a number of reasons:

i) there is sufficient residential and employment land allocated in this Local Plan to meet Structure Plan requirements;

ii) its development would create a situation of urban sprawl between the Dock and Portishead;

(iii) the area is an important wildlife corridor between the Severn Estuary and the Gordano Valley.

7.34 The District Council has resolved that, through the Avon County Structure Plan Review, it will press for the inclusion of the area in the Green Belt. Meanwhile it is important that the land defined on the Inset Maps is safeguarded and that its future designation as Green Belt is not prejudiced.

Policy GRB/6

Within land bounded by Royal Portbury Dock, Severn Estuary, the eastern settlement boundary to Portishead and the Green Belt boundary to the north of Sheepway and defined on the inset maps, development will not be permitted for purposes other than agriculture and forestry or for essential facilities for outdoor sport and recreation, or for other uses of land which do not compromise the purposes of including land in the Green Belt."

27. There were a number of duly made objections to the deposit plan proposals with regard to the Green Belt and the closely related Policy GRB/6, other than BPC's limited objection referred to above, and these included an objection in respect of Court House Farm. At paragraph 7.6 of his report, the Inspector pointed out that the general extent of the current Green Belt had been determined by the Secretary of State when approving the ACSP 1985. In respect of most of the objections (including BPC's limited objection and that with regard to Court House Farm), the Inspector then went on to state that he found that no exceptional circumstances had arisen since the Green Belt boundary had been defined which would justify altering the Green Belt in the current plan period. So far as concerned the closely related Policy GRB/6, the Inspector stated as follows in his report:

"Policy GRB/6: LAND BETWEEN PORTISHEAD AND ROYAL PORTBURY DOCK

...

Inspector's Considerations and Conclusions

7.43 The Council propose to amend GRB/6 to permit other uses which preserve the openness of the Green belt and which do not conflict with the purposes of including land in the Green belt (Amendment A7 (1)). The land is however not in the Green Belt and neither the openness nor the purposes of including other land in the Green Belt can therefore be affected by such uses outside it. There is currently no strategic requirement for a Green Belt between Portishead and Royal Portbury Dock although the Council intend to seek one in the next review of the structure plan.

7.44 The area covered by GRB/7 is the major part of a safeguarded area ... The remainder is now allocated for housing ... it is quite clear that the Secretary of State, when approving the structure plan in 1985, expressly excluded this area from the general extent of the Green Belt so as not to preclude the possibility of development in the long term ...

7.45 Government policy is clearly that the general extent of the Green Belt should be altered only in exceptional circumstances through the procedures for altering the structure plan. It is not for this local plan to prejudge the outcome of that process and I find no justifiable case in the meantime for applying Green Belt development criteria to non-Green Belt land. The Council's case for altering the Green Belt seems to me entirely a separate matter to be argued on its merits at the appropriate time. I conclude that the current strategic status of this area continues to be that of safeguarded land for possible long term development. ... I also conclude that GRB/6 should be amended accordingly to omit reference to Green Belt considerations.

...

RECOMMENDATION

7.47 I recommend that the local plan be modified:

1 to amend policy GRB/6 on the following lines:

"Within the defined area between Portishead and Royal Portbury Dock permanent development, except for the purposes of agriculture, forestry, and outdoor sport and recreation, will not be permitted until a review of the local plan proposes the development of part or all of the land on a comprehensive basis.""

28. In due course, the Inspector's recommendation with regard to Policy GRB/6 of the deposit plan was largely accepted by NSC, subject to some modification of the wording of the Policy which had been suggested by the Inspector by the addition of certain words which I have highlighted, as follows:

"Policy GRB/6

Within the defined area between Portishead and Royal Portbury Dock permanent development, except for the purposes of agriculture, forestry and outdoor sport and recreation, will not be permitted until a review of the Local Plan proposes either the development of part or all of the land on a comprehensive basis or its inclusion within the Green Belt. "

29. As I have already stated, BPC's main objection to the deposit plan was to the effect that insufficient land had been allocated to accommodate the necessary expansion of Royal Portbury Dock. So far as concerns that particular objection, the Inspector's Report and Recommendations were in the following terms:

"Land at Royal Portbury Dock

Objectors

751/001 The Bristol Port Company

751/009 The Bristol Port Company

The Issue

13.34 The non-allocation of sufficient land to accommodate expansion of the Royal Portbury Dock.

Inspector's Considerations and Conclusions

13.35 The 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 through the site. Its strategic significance is recognised separately in the structure plan where ASCP 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.

13.36 The 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.

13.37 A 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 make my recommendation accordingly.

Recommendation

13.38 I 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."

30. It is common ground and important to note that no evidence was given or submissions made to the Inspector at the local inquiry as to how the 210 ha, which were required by Policy E.14 of the structure plan to be allocated for development of Royal Portbury Dock, had been derived, nor was that matter considered by the Inspector when making his Report. In particular, it was not suggested by either BPC or by NSC (who was present and represented at the local inquiry), that the area of 210 ha in the structure plan was limited to development land situated entirely within the Limit of deviation although, as I have already stated and explained, I am satisfied that such was the case. In my judgment it is clear from the material wording of his Report that the Inspector addressed this particular issue on an undisputed but erroneous basis that the structure plan's strategic requirement of 210 ha for the development of Royal Portbury Dock during the currency of that plan (ie the ACSP 1994) was not limited to land which was situated entirely within the Limit of deviation.

31. So it was that the Inspector came to his stated conclusion that the deposit plan showed a current shortfall of 50 ha in meeting the present structure plan requirement of 210 ha for development at Royal Portbury Dock and that the local plan should be modified to ensure that this shortfall was adequately addressed during the currency of the local plan, because of what he perceived to be an agreed demand for further land for development of Royal Portbury Dock. It was mainly for that reason that the Inspector made the recommendation that he did, a recommendation which was plainly not expressed to be limited to development land situated only within the Limit of deviation. In my view it is clear that, when making his recommendation in paragraph 13.38 of his Report, the Inspector used the expression "adjoining the Royal Portbury Dock" as capable of extending to land which was "adjacent to" the Royal Portbury Dock but not necessarily within the Limit of deviation, contrary to the more limited meaning of those words when properly understood in the context of Policy E.14 of the structure plan, as explained above.

32. In April 1999, the relevant committee of NSC approved NSC's Written Statement of Decisions and Reasons in respect of the Inspector's Report and Recommendations. The Written Statement was duly published in June 1999 ("the first Statement of Reasons") but, as will become apparent, it did not represent NSC's final decision on its reasons for rejecting the Inspector's recommendation. So far as concerns the Inspector's recommendation that the plan should be modified to allocate 175 ha for the development of Royal Portbury Dock between 1995 and 2001, as required by the structure plan E14, NSC decided, at that stage, to make no modification to the plan and expressed its reasons as follows:

"Royal Portbury Dock is a major source of employment and its continued success and development is of importance to North Somerset and beyond. The Council recognises the strategic need for the provision of 210 hectares (1989-2001), together with the need to safeguard the local environment and amenities of local residents. The resolution of local transportation problems must also be part of any balanced consideration of development proposals beyond the West Dock Act area. The Inspector's views regarding exceptional grounds for releasing Green Belt land at Court House Farm are qualified by his conclusion reached elsewhere in his report (para 7.6) and his anticipation of studies of options to be carried out. Studies are currently underway looking into the reopening of the former Portishead-Bristol railway line for freight and passenger traffic (including the provision for Park and Ride facilities as identified in the Joint Replacement Structure Plan and elsewhere in the Local Plan), and wider transportation issues relating to the A369 corridor. These studies remain to be completed. The resolution of these matters together with consideration of the environmental impact must form part of any consideration of "exceptional" circumstances as required by PPG2 in respect of the Green belt and the environmental sensitivity of land in the vicinity. A comprehensive assessment of all these factors is justified before release of additional land over and above that already identified in the West Dock Act area."

33. In my opinion, it appears from the terms of that response that NSC did accept, at that stage, that there was a strategic need for the provision of 210 ha for development of Royal Portbury Dock and that the Inspector's recommendation at paragraph 13.8 of his report (see above) would involve consideration by NSC of dock related development beyond the West Dock Act area (ie beyond the Limit of deviation) in order to make full provision for that strategic requirement.

34. During April 1999, prior to the actual publication of NSC's first Statement of Reasons, various discussions and meetings took place between BPC's senior management and NSC's planning department. Stated broadly, the subject matter was BPC's land requirements for the expansion of Royal Portbury Dock and how those requirements could be met. It appears that at some point either before or at an early stage of those discussions, the officers in NSC's planning department formed the view that, contrary to the conclusion expressed by the Inspector in his report (see above) and contrary to what had apparently been accepted by all concerned at the local Inquiry (including NSC), there had been no shortfall in the provision of development land to meet the strategic requirements of Policy E.14 of the structure plan. It was the officers' opinion that the 210 ha referred to in that policy was actually the balance of the 300 ha referred to in the original structure plan Policy E.14 (ie the ACSP 1985), all of which was situated within the Limit of deviation. Accordingly, it was the officers' view that it was necessary to take account of the development and allocation of land within the Limit of deviation, both before and after 1989, in order to see whether the strategic requirement of Policy E.14 had been met. It was the planning officers' opinion that, when the matter was approached in that way, it became clear that there was no shortfall of 50 ha (contrary to what had been accepted to be the case at the local Inquiry) and that the Inspector's conclusion to that effect was wrong. In his third witness statement, dated 14 November 2000, NSC's Planning Policy Co-Ordinator in the Planning and Environment Directorate, Mr Steven Williams, stated as follows:

"Exhibit 24(i) is a note of the meeting made by myself immediately following discussions with Mr Ord, the managing director of BPC and Terence Mordaunt, a director of the company. The purpose of the meeting, requested by myself, was to establish quantitative details of development areas within the West Dock Act area, so that this could be related to the land allocation at Royal Portbury Dock. The significance of the original structure Plan allocation was discussed and my note of 7 April records the distinction to be made between development pre- and post-1989, and BPC's concern that this may in some way lead to the Council "washing its hands" of the matter should the information reveal sufficient land has been provided for in respect of the strategic allocation to 2001.

35. By letter dated 8 April 1999, Mr Mordaunt wrote on behalf of BPC to Mr Williams as follows:

"David and I enjoyed meeting you yesterday and discussing our land requirements. I have now made contact with Colin Banyard, our Planning Consultant, who will be down on Monday afternoon. We have a provisional meeting time of 1730 hrs when we can go through the issues.

I would, however, say that we do not accept that your interpretation of the Inspector's report is correct and, when taken alongside our evidence submitted at the Public Inquiry, we do not believe your interpretation can be correct.

I enclose details of all the developed areas in Portbury stating whether they are pre-1989 or post-1989 as per your request. Inevitably there are some discrepancies. Our measurement of the total area within the limits of deviation is 460 hectares, whereas yours is only 426 hectares. I think this is probably because we have included SSSI and unusable land down to the main high water mark, whereas the previous measurement probably only went to the SSSI.

We show 40 hectares of water, whereas you have 26 hectares. The dock alone is 26 hectares. We have included the lock and pumping pond, all of which were built at the same time, but again this is probably the reason for the discrepancy.

Again our area within the customs fence is 112 hectares whereas your measurement was 104 hectares. Again I think it is the difference between useable and unusable land."

36. The details of the developed and other areas, which went to make up the total area of the Limit of deviation which were attached to Mr Mordaunt's letter of 8 April, were later revised by BPC and further discussed at a meeting which took place on 12 April 1999. BPC's revised schedule, which was dated 12 April 1999, had been prepared by Mr Tony Norman on behalf of BPC and gave the following details:

" Area within Customs fence (excl. water) ... 96.35 hectares

Area of water ... 29.64 hectares

Area of development pre 1989 ... 59.16 hectares

Area of development post 1989 ... 141.64 hectares

Green/Landscaping (inc. roads) ... 91.49 hectares

Area for development ... 6.05 hectares

Total area within Limits of deviation ... 44.51 hectares"

37. It will be observed that, if the area of water and the area within the Customs fence are both subtracted, the balance of the area within the Limit of deviation is 298.34 ha (ie an area which equates with the 300 ha referred to in the ACSP 1985 and subsequently). In his third witness statement, Mr Williams described the meeting of 12 April 1999 in the following terms:

"The meeting that took place on 12 April 1999 in the Council's offices ... was attended by myself and the Director of Planning and Environment; and Mr Mordaunt for BPC, together with their public relations manager, Patrick Kieron and planning adviser Colin Banyard. The meeting had the benefit of BPC's revised schedule dated 12 April 1999.

By BPC's own calculations in their Schedule, the sum of the area within the `Limit of deviation' ie the West Dock Act area, equates to 424.15 ha. Subtracting the water and customs fence areas (126.17 ha), results in an area of 298.34 ha. This is consistent with the Port Authority's assessment in 1983. It equates with the original strategic allocation of 300 ha. identified in the Avon Structure Plan and referred to in the Council's Statement of Decisions and Reasons. This conclusion was raised with BPC, giving rise to their comment on page 2 of their note of the meeting, that their previous assumption had been challenged."

38. Having regard to the details supplied by BPC and for the reasons already stated, I am satisfied that the planning officers' analysis and conclusion were correct namely that, when properly understood, there had been no shortfall in meeting the requirements of Policy E.14.

39. By letter dated 13 April 1999, Mr Mordaunt wrote to NSC's Director of Planning in the following terms:

"We enjoyed meeting you yesterday to discuss the difficult problems of Portbury's expansion.

As promised I enclose the salient points on why we believe that more land should be allocated now. This was quite clearly the intention of the Inspector even in your brain surgeons can devise technical arguments to show that the Inspector may have misunderstood the figures."

40. Enclosed with Mr Mordaunt's letter was a written note of the points which had been made by BPC at the meeting of 12 April, which included the following:

"Following our meeting yesterday I set out below a synopsis of the points made at our meeting

Background

...

the Local Plan was placed on deposit and dialogue ensued on the Port's position. Using the Structure Plan allocation on a clear statement of the intended area of 210 hectares, and noting the inaccuracy of the Local Plan's version of availability (map 36) objections were lodged. The primary focus of the objection and subsequent evidence was that there was a shortfall of space and the Port was asking the Inspector to give consideration to that aspect.

In addition, three sites were suggested as possible areas for growth being:

(a) The Portbury Park Site (Ashlands).

(b) The Court House Farm adjacent to the M5.

(c) The County C4 site adjacent to the River Avon.

The Port acknowledged the difficulties with all the sites and sought direction on this aspect. The arguments for support of our position (and acknowledged by the Inspector) are as follows:

The Avon Structure Plan allocated 300 hectares adjacent to Royal Portbury Dock. It then acknowledged in the first revision that 90 hectares had been utilised, thus leaving 210 hectares which is quoted in the Local Plan.

This clearly shows the 50 acres (sic) shortfall

The Council Officers Acceptance of the Numbers

Throughout out discussions, prior to and at the Examination in Public, the figures of 210 hectares additional land were agreed and until yesterday remained unchallenged.

Further, the officers requested, and the Port agreed, that non port development should only take place beyond the pylons and this was now seen as the operational port.

The Inspector Agreed

13.36 of the Inspector's report quotes "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.

The Local Plan/Structure Plan Support

Both plans provide words of considerable support recognising the importance of the Port to the local economy. Land is one of the key components to the Port. Our competitors are expanding their operations (Southampton - Dibden Bay) and we run a risk of losing out in the market place."

41. By letter dated 5 July 1999, Mr Ord wrote to NSC, enclosing BPC's formal objections to NSC's refusal to accept the Inspector's recommendation contained in paragraph 13.8 of his report (see above). As well as making objections which were based on specific challenges to NSC's originally expressed reasons for not accepting the Inspector's recommendation (see above), NSC included the following argument as part of its reasons for its objections:

"In addition, as an objector ... which appeared at the inquiry, we should be given an opportunity to consider and comment on any new arguments raised by the Council, and to deny us this chance is unfair.

´ PPG12 (Annex A paragraph 69) makes it clear that it is inappropriate to reject an inspector's recommendation in circumstances where new issues are raised in the Statement of Decisions without holding a further inquiry".

42. In due course, NPC published its "Statement of Decisions and Reasons in Response to Representations on the Proposed Modifications and Further Proposed Modifications to the Local Plan, as approved by the Planning and Transport Committee on 20 October 1999, 24 November 1999 and 15 March 2000" (hereafter referred to as "the final Statement of Reasons"). So far as concerns BPC's objection to NSC's refusal to accept the Inspector's recommendation in paragraph 13.8 of his report, NSC's final Statement of Reasons was expressed as follows:

"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 given 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."

43. It is common ground that it is this particular response by NSC to BPC's objections which is the genesis of the key or central issue raised by these proceedings, which key issue is identified by Mr Holgate QC on behalf of NSC in paragraph 1.1 of his helpful written skeleton argument in the following terms:

"1 The issues in this case

1.1 The complaints in the Claim Form focus on one matter, namely the Council's rejection of the recommendation by the Local Plan Inspector that an additional 50 hectares of land should be allocated in the North Somerset Local Plan ("NSLP") for development at Royal Portbury Dock in order to achieve the figure of 210 hectares in Policy E14 of the Third Alteration of the Avon Structure Plan, adopted in July 1994 ...... the short answer is that neither side examined the derivation of the figure of 210 hectares in the structure Plan policy at the local plan inquiry, the council did check the matter subsequently, found that the allocations proposed in the deposit draft local plan complied with the requirement indicated by the Structure Plan, notified its reasoning in April 1999 and September 1999, discussed the matter with the Claimant's representatives at a meeting in April 1999 and gave the Claimant opportunities to make representations thereon. Moreover, the Council's interpretation of the Structure Plan is correct and consistent with an earlier Local Plan to which there was no challenge."

44. For reasons which I develop later, I am satisfied that this submission is correct and that it is, in almost all respects, fatal to the Claimant's case.

45. In January 2000, BPC sent to NSC its written objections to the final Statement of Reasons under cover of Mr Ord's letter of 20 January 2000, which was in the following terms:

"North Somerset Local Plan

We attach our objections to the latest stage of the Local Plan saga.

You will see from the attached that we feel particularly aggrieved that we have been forced to proceed down the expensive and unwelcome legal route which was certainly the last thing that we wished to do.

We are still baffled as to why the constructive dialogue that took place early last year was not reflected in the official plan recommendations and we can only assume that we are now more of a burden than a benefit to the Members of the Council."

46. In its January 2000 response, BPC raised a total of five objections to NSC's final Statement of Reasons as follows:

"North Somerset Draft Local Plan

Objections by the Bristol Port Company (BPC) to North Somerset Council's Failure to modify the Plan in response to objections made by BPC to the Council's Statement of Decisions and Reasons.

...

Proposal number E14

Objection reference 24/1

1. We are most disappointed to note that the Council has rejected our objection ... This rejection is despite previous indications and assurances from the Council that the Council agreed that further land for employment purposes was needed at Royal Portbury Dock.

2. The Council claims that it is entitled to make this rejection because, in the light of its interpretation of the structure plan and the alleged extent of areas already allocated, there is, in fact, no justification for a further release of land within the plan period.

3. We object most strongly to the view that the Council has taken in this respect, and cannot comprehend how this view can properly be taken in the light of the Council's previous indications and assurances to us. Our objection is on five grounds.

Ground 1

4. The Council in rejecting our objection, does not refer to the fact that the Inspector, in paragraph 13.36 of his report made it very clear that, taking into account the structure plan, this local plan needed to provide for an additional 50 hectares for general industry, storage and distribution adjoining Royal Portbury Dock; this was independent of any further allocation for these purposes in the UDP in the next plan period.

5. The Council's previous reason for rejection of the recommendation (given by the Council in its Statement of Decisions and Reasons published in April 1999, namely that further studies were needed before additional land was released) was the subject of our objection ... to the effect that the need for studies did not detract from the Inspector's clear recommendation for the further land allocation.

6. A clear reason for rejecting that objection has still not been given, since the Council's response has instead been to raise the new arguments set out in paragraph 8 below. Therefore, the Council has still failed to provide a reason for rejecting the Inspector's recommendation in paragraph 13.38.

7. By failing to provide a reason in this way, the Council's decision not to accept the Inspector's recommendation is readily subject to challenge in the High Court.

Ground 2

8. The Council's initial response to the recommendation of the Inspector at paragraph 13.38 of his report did not challenge the need for land allocation for employment purposes, but merely stated that the Council did not wish to make the allocation until the studies needed to evaluate the various options had been undertaken. The Council is now taking a different view, namely that there is no need for further land allocation. In doing so, the Council relies on two grounds:

(a) the Council's interpretation of the allocation required by the structure plan; in particular the council states that "by its nature the strategic allocation relates to the West Dock Act area"; and

(b) the Council's calculations concerning the acreage at Portbury already developed.

9. The council has not previously raised either of the arguments at 8(a) and 8(b) above. In fact, in its Statement of Decisions and Reasons published in April 1999, in rejecting the Inspector's recommendation at paragraph 13.38 of his report, the Council expressly recognised the strategic need for the provision of land adjoining Royal Portbury Dock for employment purposes between 1989 and 2001 (ie within this plan period) and referred to the need for specific matters to be considered in relation to development proposals beyond the West Dock Act area, clearly envisaging that the land allocation could and would come from beyond such area.

10. The Council is acting irrationally and perversely in now taking the opposite view on both of these issues yet offers no proper explanation for this change of view and hence its reasons for rejecting the Inspector's recommendation.

11. Further, the Council's new arguments at 8(a) and 8(b) above were not discussed or considered by the Inspector, so the Inspector has not been allowed the opportunity to address all material considerations before making his recommendations. As an objector to policy E14 which appeared at the local plan inquiry, we should be given an opportunity to consider and comment on these new arguments raised by the Council. To deny us this chance is unfair. Additionally, PPG12 (Annex A paragraph 69) makes it clear that it is inappropriate to reject an Inspector's recommendation in circumstances where new issues are raised in the Council's response without holding a further inquiry.

12. By failing to allow the opportunity for these new issues to be addressed, the Council's decision not to accept the Inspector's recommendation is readily subject to challenge in the High Court.

Ground 3

13. We do not accept that the structure plan intended to limit the further land allocation for employment purposes to sites within the West Dock Act area. We have mentioned above that this was not the Council's view either in April 1999 as evidenced by the Statement of Decisions and Reasons. The Council has offered no justification or basis for its interpretation of the structure plan requirement and so, in addition to acting perversely as set out in paragraph 10 above, has not discharged its duty to provide a reason for rejection of the Inspector's recommendation.

14. We consider that the Council is wrong in its interpretation of the structure plan requirement for the following reasons.

15. First, the Inspector recommended (at paragraph 7.47 of his report) that Policy GB6 be modified so that the land lying between Portishead and Royal Portbury Dock currently outside the Green Belt should not be treated as Green Belt (as proposed by the Council in the deposit local plan) but should be safeguarded for possible long term development. This recommendation was accepted by the Council, subject to an acknowledgement that some of the land may later be included in the Green Belt.

16. This land was therefore accepted by both the Inspector and the council as "white land" and the appropriate policies to be applied to it are set out in Annex B of PPG2. This makes it clear that the land must be kept free to meet the long term development needs identified (paragraph B5). This recommendation reflects the recommendations of the Panel from the Examination in Public in relating to the draft Joint Replacement Structure Plan, in particular Recommendation 15, to the effect that in establishing any Green Belt boundary between Portishead and Royal Portbury Dock, regard must be had to development needs as well as the maintenance of a viable green belt. Equally, paragraph 5.7 of the Panel Report, referring to Policies 27 and 65 of the draft Replacement Structure Plan, supports the continued expansion of port operations at Royal Portbury Dock and this is reflected in Policy 15 of that Plan.

17. Development outside the West Dock Act area was and is clearly contemplated, therefore, by the council, the Inspector and the EIP Panel in relation to the Joint Replacement Structure Plan.

18. Secondly, policy E14 of the Avon Structure Plan (incorporating third alteration - 1994) makes no suggestion that the further allocation of land for employment purposes was to be restricted to the West Dock Act area. If the allocation was intended to be so restricted the structure plan would have dealt with this expressly. In fact, none of the previous structure plans make any reference to the existence of the West Dock Act at all, so it is irrational to maintain that nay policies or requirements in them were intended to be conditioned by reference to that Act.

19. Thirdly, the land acquired by the City Council of Bristol (BCC) prior to and for the purpose of the construction of Royal Portbury Dock included not only the land falling within the West Dock Act area but also substantial areas of further land to the west. The land included in the West Dock Act area was only that immediately required for the construction of the Dock and the deposit of spoil from it. The further land had been acquired by BCC to ensure its ability to expand port operations and secure the long term economic viability of the Dock. it is therefore logically absurd and erroneous when considering the allocation of further land required for the development of the Dock to look only at the land within the West Dock Act area, since that land was specifically delineated to meet the construction of the Dock, not its development. This absurd construction cannot be the correct interpretation of the structure plan.

Ground 4

22. We are concerned that the Council now seeks to limit the need for the allocation of further land for employment purposes, both by claiming that such land is already allocated and by limiting its geographical extent to the West Dock Act area, for reasons unconnected with the need for such land, but connected rather with the Council's desire to facilitate the allocation of further housing land, without resort to infilling of existing settlement area. This is despite the fact that the Council, in its Statement of Decisions and Reasons in April 1999, stated that it disagreed with the Inspector's finding that further housing land allocation was needed in the local plan to meet structure plan requirements for the present plan period.

Ground 5

26. We do not agree that the calculation as to the land allocated at Royal Portbury Dock for employment purposes is correct. The bases and methods used for the calculation of the extent of land already allocated for employment purposes have not been presented by the Council for consideration. Information provided by us to the Council informally in April 1999 has been interpreted by the Council in a mischievous and unexplained manner. The Council cannot rely on its own unverified calculations as a proper basis for rejecting the Inspector's recommendation.

27. Further, the Council's statement that the allocation of employment land required by the structure plan has already been provided in full directly contradicts the Inspector's finding at paragraph 13.36 of his report that "(I)t is quite clear nonetheless that of the 210 hectares required in the present plan period only about 160 hectares have been developed or allocated." This finding was based upon clear evidence presented by us at the local inquiry as to the land developed and available for development, and our forecast that further land would be required if the development of the Dock was to continue. This forecast has now been proven to have been correct. The Council has not explained the contradiction between the Inspector's finding, our evidence and the fact of today's further land requirement and therefore has not provided a proper reason for rejecting the Inspector's recommendation."

47. In June 2000, NSC resolved to adopt the NSLP 1999 and these proceedings were issued on 31 July 2000. The grounds of the application are stated in the following terms:

"Grounds

4. The grounds for this application are that:

In deciding not to accept the recommendation of the Inspector set out in paragraph 13.38 of his report following the local inquiry into objections to the then Woodspring Local Plan, namely that "...the local plan be modified to allocate about 175 hectares adjoining the Royal Portbury Dock for development between 1995 and 2001 for industry, distribution, or storage in accordance with structure plan policy E14 (Recommendation 13.38). and in the reasons and/or lack thereof given for this decision, the Defendant exceeded the powers conferred on it by part II of the Town and Country Planning Act 1990 and/or acted in breach of the requirements of the Town and Country planning (Development Plan) (England) Regulations 1999."

Those grounds are particularised in terms to the same general effect as BPC's response of January 2000 (see above).

48. The Relevant Legal Principles

It is common ground that the legal principles which are relevant to this application are those which were summarised by me in Braithwate v Doncaster Metropolitan Borough Council (2000) CO 3435/98 as follows:

"(1) The decision maker must give proper, adequate and intelligible reasons which deal with the substantial points which have been raised: see Save Britain's Heritage v Number 1 Poultry Ltd (1991) 1WLR153.

(2) A deficiency in the reasons will only amount to a breach of the Statutory requirements if the interests of the Applicant have been substantially prejudiced thereby: see Save Britain's Heritage (supra) at page 167C to H.

(3) The onus is on the Applicant to satisfy the Court that there has been a failure by the decision maker to give reasons which satisfy the Statutory requirements: see Save Britain's Heritage (supra) at page 168C.

(4) The reasons to be considered are those which were given at the time of the decision: see British Railways Board v Slough Borough Council (1993) 2PLR 42 at page 49 B-C.

(5) The adequacy of reasons must be assessed by reference to whether the decision in question leaves room for genuine doubt as to what the decision maker has decided and why. This issue must be resolved on a straightforward, down-to-earth reading of the decision, without excessive legalism or exegetical sophistication see Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire DC (1993)66 P&CR 263 at pages 271-272.

(6) The weight to be attached to material considerations and, therefore, matters of planning judgment are for the purposes of this case, within the exclusive jurisdiction of the local planning authority: see Tesco Stores v Secretary of State (1995) 1WLR 759.

(7) In the local plan preparation process, where the Council is both proposer and arbiter, the obligation to deal thoroughly, conscientiously and fairly with any objection is enhanced: see Stirk v Bridgnorth DC (1997) 73P&CR 439 at page 444, per Thorpe LJ.

(8) The duty on a local planning authority to act fairly includes the decision whether to hold a further Inquiry: see British Railways Board (supra) at page 53G.

(9) When the Court reviews a decision by a local planning authority not to hold a second Inquiry, the Court should ask whether, on normal judicial review principles, the decision not to open a new Inquiry was unlawful: see Warren v Uttlesford DC (1997) UPL 1130 at page 1134 per Schiemann LJ.

(10) When a local planning authority is considering whether to hold a second Inquiry in response to objections made to proposed modifications, the fact that a proposed modification involves issues which had not been subject to consideration at the deposit stage could be a highly material consideration. Other material considerations include whether the issue had been previously subjected to independent scrutiny by an Inspector, the current advice in paragraph 69 of Annex A of PPG 12, the practical implications of a second Inquiry and whether it would potentially be of material benefit to the decision making process, the delay and desirability of securing an up-to-date adopted development plan and fairness to the Objector and to other parties: see Drexfine Holdings Ltd v Cherwell DC (1998) JPL 361 at pages 372 to 373."

49. The Issues and Submissions of the Parties

As I have already indicated, the central issue in these proceedings is whether NSC is correct in its submission that the deposit version of the local plan (and thus, in due course, the NSLP 1999) did satisfy the strategic requirement of Policy E.14 of the current structure plan and that the Inspector's conclusion, that there was a shortfall in the deposit plan of about 50 ha in meeting that strategic requirement and upon which conclusion his recommendation in paragraph 13.38 of his Report was founded, was erroneous. However, in the course of his submissions on behalf of BPC, Mr King QC put forward a total of six grounds of challenge, Grounds 1, 2 and 4 of which were concerned almost entirely with the decisions and reasons published by NSC in June 1999 (ie in the first Statement of Reasons).

50. I therefore turn to deal with each of the grounds of challenge in the order in which they were dealt with in oral submissions and in which they appear in Mr King's helpful written skeleton argument.

51. Ground 1 - Irrationality and/or Perversity

Mr King drew attention to the fact that, in the first Statement of Reasons, NSC had recognised and acknowledged the existing strategic need in the structure plan for the provision of 210 ha to meet Royal Portbury Dock's development needs. He submitted that it was irrational and/or perverse of NSC to acknowledge that present strategic need but then go on to reject the Inspector's recommendation, which was designed to meet that acknowledged and existing strategic need, on the basis that completion of a comprehensive review of various important strategic factors was required before any further land could be released. Mr King submitted that this was particularly so, having regard to the fact that the inspector had recognised and acknowledged that a further study of the options was required in order to determine the precise location of the additional land required to satisfy the outstanding strategic need.

52. On behalf of NSC, Mr Holgate QC submitted that it was necessary to look at the matter as a whole and not to confine criticism of NSC's decision making solely to the first Statement of Reasons. He submitted (correctly in my view) that it was necessary to look also at the reasons given by NSC in the final Statement of Reasons in which NSC had made clear its reasons for stating that there was no shortfall and that the deposit plan did not fail to meet the strategic requirement of Policy E.14. For the reasons I have already given, I am satisfied that this submission is well founded. Furthermore, it is fatal to this ground of challenge. In my judgment, the decision of NSC to reject the Inspector's recommendation cannot be stigmatised as perverse or irrational when the essential foundation for that recommendation can be shown not to exist - as is the case here.

53. I also agree with Mr Holgate's further submission that, in any event, NSC's decision, as at April 1999, not to modify the local plan was not perverse or irrational, because there was an acknowledged need to carry out further strategic studies before any additional land could be identified for the development in question. As Mr Holgate pointed out, the position might have been different if BPC had presented to the Inspector at the local Inquiry a full case on the suggested allocation of land to meet the future growth needs of Royal Portbury Dock. However, BPC did not present a case for allocation of land outside the Limit of deviation, except in the barest outline and not supported by any expert evaluation or feasibility studies. If BPC had presented a detailed case, the Inspector might have been able to identify appropriate areas and to make firm recommendations for the allocation of specific sites to meet what he understood to be the structure plan's existing strategic requirements for the future growth of the Port. As it was, the Inspector's recommendation was necessarily limited to one which sought to ensure that the outstanding strategic requirement was, in effect, merely restated in the local plan, whilst the necessary further studies were carried out. In my view, there is nothing perverse or irrational in NSC's decision not to accept such a recommendation which did no more than restate an existing and undisputed strategic requirement (if such a requirement did exist), but which recommendation did not go on to identify any specific areas for the development in question. In my opinion, this is particularly so having regard to the provisions of Section 36(4) of the 1990 Act (see above), which requires the local plan to be in general conformity with the structure plan, because without the addition of the Inspector's recommendation the deposit plan was already in conformity with the structure plan and the modification recommended by the Inspector would add nothing to what was already stated in the structure plan.

54. Accordingly, for those reasons, I am satisfied that this first ground of challenge fails.

55. Grounds 2 and 4: Failure to Understand the Inspector's Reasoning and Failure to consider need for or carry out any further comprehensive assessment as part of the North Somerset Local Plan process

It is convenient to deal with these two grounds together, as was done by Mr King in both his skeleton argument and his oral submissions. Mr King submitted that, in its first Statements of Reasons, NSC had clearly misunderstood the Inspector's reasoning and approach to the release of Green Belt land when relying upon paragraph 7.6 of the Inspector's report as support for its insistence upon the need to complete the various strategic studies (such as transportation and environmental impacts) before there could be any release of further land for the development of Royal Portbury Dock. Mr King pointed out that, so far as concerns Court House Farm, the Inspector had made it clear that paragraph 7.6 of his report had been expressly qualified by paragraph 13.37 of his report (see above). It was Mr King's further submission that NSC's approach was to the effect that no land should be allocated in the deposit plan, to meet the outstanding strategic requirement of Policy E.14 of the structure plan, before completion of the outstanding strategic studies; whereas the Inspector's clearly expressed view had been that the shortfall in the existing strategic requirement should be dealt with during the currency of the local plan. Mr King maintained that, having regard to the Inspector's specific recommendation in paragraph 13.38 of his Report, the only question which remained outstanding was where the balance of 50 ha was to come from. Mr King submitted that it was clearly the Inspector's view that, to the extent it was necessary to complete any such strategic studies in order to identify the areas which should be allocated to meet the strategic shortfall, that was something which should be addressed as part of the present overall local plan process. Accordingly he argued that, in deciding to reject the Inspector's recommendation and to defer carrying out the work needed to identify the land suitable to meet the 50 ha shortfall, NSC had acted perversely and/or irrationally in misunderstanding the Inspector's reasoning and by failing to consider the implication of such a deferral - either in strategic terms or in its consequential effect on BPC or the economy of the region.

56. For the reasons already given, I am satisfied that Mr Holgate is correct in his submission that the reasons given in NSC's final Statement of Reasons (ie to the effect that there was no shortfall of 50 ha) are fatal to these two grounds of challenge. In my opinion, for the reasons I have already stated, the essential foundation for the Inspector's recommendation at paragraph 13.38 of his Report was that the deposit plan showed a shortfall of 50 ha in meeting the existing strategic requirements of Policy E.14 of the structure plan, which shortfall should be addressed during the currency of the local plan. In my judgment, NSC's decision to reject that recommendation cannot possibly be stigmatised as irrational or perverse or criticised for failing to understand the Inspector's reasoning, when the essential foundation for that recommendation can be shown not to exist, as is the case here.

57. I also agree with Mr Holgate's further submission that, in any event, Ground 2 adds nothing to Ground 1 and that, having regard to BPC's limited objection to the Green Belt, the absence of any objection by BPC to Policy GRB/6 and in the light of the progress made with regard to the JRSP 1998 and the final resolution of strategic matters such as transportation and environmental impacts, NSC were entitled to disagree with the Inspector's view that any necessary strategic studies should be carried out as part of the current local plan process. In my view, such a decision was one to which NSC was perfectly entitled to come in the circumstances of this case, particularly having regard to the public interest in having the present local plan finalised. It was neither perverse or irrational. Accordingly, for those reasons, I am satisfied that Grounds 2 and 4 of the Grounds of Challenge also fail.

58. Grounds 3, 5 and 6: Failure to hold a Further Inquiry, Inconsistency in Approach and Perversity/Irrationality

It is convenient to deal with these three grounds together, because they are all substantially concerned with what are said to be the significant differences which exist between NSC's reasons for rejecting the Inspector's recommendation as stated in the final Statement of Reasons, when compared with those expressed in the first Statement of Reasons, and the resulting unfairness and injustice to BPC which it is said will result from NSC's decision not to hold a further inquiry to deal with those issues and matters. Those issues and matters were ones which are now relied on by NSC, but which had not been raised previously, either in response to BPC's objections to the deposit plan or at the local inquiry before the Inspector who, therefore, had neither considered those matters nor dealt with them in his Report.

59. Mr King referred to the first Statement of Reasons and to NSC's apparent reliance, when rejecting the Inspector's recommendation, on the need for there to be a final resolution of transportation and environmental issues before any further land allocation could be made. It was Mr King's submission that, although there had been some general discussion about such strategic matters at the local inquiry, it had never been suggested by NSC that there should be no allocation of land for development outside the Limit of deviation until such matters had been resolved. Mr King emphasised that it had been accepted by NSC at the local inquiry that there was an existing shortfall in the deposit plan's proposals for meeting BPC's development requirements, as provided for in the structure plan, and that it would therefore be necessary to consider areas outside the Limit of deviation in order to deal with that shortfall. Accordingly, Mr King submitted that, by its assertion that there should be no further allocation of land for the development requirements of Royal Portbury Dock until the resolution of the specified strategic issues, NSC had raised a fresh matter or issue in its first Statement of Reasons which had not been raised previously, either in response to BPC's objections to the deposit plan or before the Inspector at the local inquiry.

60. Mr King then referred to NSC's final Statement of Reasons and made the following general submissions with regard to this response by NSC to BPC's further objections: (1) that NSC was now, for the first time, advancing an argument that the area of land, which had been allocated in Policy E.14 of the ACSP 1994 for development of Royal Portbury Dock, related to land situated only within the Limit of deviation ; (2) that, on the basis of the information which had been provided by BPC in April 1999, concerning the various development and other areas within the Limit of deviation, NSC was now asserting, for the first time, that there was no justification for any further allocation of land for the development to Royal Portbury Dock in the current local plan; and (3) that, when account was taken of NSC's response in its first Statement of Reasons compared with its response in the final Statement of Reasons, it was apparent that there was an inconsistency of approach in NSC's interpretation of the Policy E.14 of the structure plan and a general lack of clarity in NSC's reasoning for rejecting the Inspector's recommendation.

61. Mr King submitted correctly that it was apparent that NSC's response, in its final Statement of Reasons, was to the effect that the strategic requirements of Policy E.14 of the structure plan had already been met and that the Inspector's conclusion that there was an outstanding 50 ha shortfall was wrong. Mr King maintained that, not only did this response raise entirely new issues, but it was wholly inconsistent with NSC's first Statement of Reasons, in which NSC had accepted that there was an outstanding and unsatisfied strategic need, which might be met by allocation of land outside the Limit of deviation, subject to the resolution of various strategic issues such as transportation and environmental impact. Mr King argued that, in deciding to reject the Inspector's recommendation for reasons which were inconsistent and/or lacking in clarity in the manner described, NSC acted perversely and/or irrationally and, in doing so, has substantially prejudiced BPC's interests by preventing or unreasonably delaying the necessary expansion of Royal Portbury Dock.

62. I am not persuaded that there was any perversity or irrationality in NSC's decision making in this regard, nor do I consider that there is any lack of clarity in NSC's reasons for rejecting the Inspector's recommendation. As Mr Holgate pointed out, and as I have already indicated, NSC's final decision on the merits was not taken until March 2000, leading to adoption of this local plan in June 2000. I agree with Mr Holgate that NSC's decision making process must be looked at as a whole and that its individual stages should not be considered in isolation. Whilst it is true that NSC did refer, in its first Statement of Reasons, to the possibility of development proposals beyond the Limit of deviation, that was before the Members considered and agreed to the correct analysis of the situation, which was then set out in the reasons given in its final Statement of Reasons (see above).

63. I agree with Mr Holgate that, in effect, the reasons given in the first Statement of Reasons have to be read subject to the reasons given in the final Statement of Reasons and that there is , therefore, no lack of clarity in NSC's reasons for rejecting the Inspector's recommendation, nor is there any inconsistency of approach in NSC's interpretation of Policy E.14 of the structure plan. In my judgment, it was neither perverse or irrational for the Members to accept and act upon the analysis which was the basis of its response in the final Statement of Reasons, particularly since that analysis had already been the subject of considerable discussion and comment between the officers and BPC, as described above, and was manifestly correct. Accordingly, for those reasons I am satisfied that Grounds 5 and 6 of the Grounds of Challenge also fail.

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.

66. Conclusion

For the reasons expressed above, I have come to the conclusion that this Application must be and is hereby dismissed.

MR JUSTICE FORBES: I direct that the written draft judgment which has been handed down this morning, is to stand as the transcript of my judgment in this matter. For the reasons contained therein, this application is dismissed.

Are there any further matters which either of you wish me to deal with?

MISS OLLEY: My Lord, I ask for my costs.

MR JUSTICE FORBES: Is there anything you want to say about that?

MR TAYLOR: My Lord, obviously I cannot resist my learned friend's application, but I do have an application myself for permission to appeal.

MR JUSTICE FORBES: In that case, the order I make in this matter is: Application dismissed, the Claimant is to pay the Defendant's costs to be assessed on a standard basis if not agreed. Yes, Mr Taylor.

MR TAYLOR: My Lord, the test for permission to appeal your Lordship is very familiar. It is, a real prospect of success for appeal or some other reason, part 52 rule 6.

I am in a fairly invidious position. I have to persuade your Lordship's that your judgment is in error and that there is a real prospect of success turning it on appeal but, nevertheless, I am respectfully going to attempt----

MR JUSTICE FORBES: Do not feel embarrassed by it, Mr Taylor, just tell me how I have got it wrong.

MR TAYLOR: My application relates to your Lordship's judgment in respect of Ground 3, the fairness point and, in particular, to paragraphs 64 and 65 of the judgment. The ground was, as I am sure your Lordship will remember it, that it was unjust and unfair for North Somerset Council to rely on----

MR JUSTICE FORBES: It is the fresh inquiry point.

MR TAYLOR: Yes. Central to your Lordship's judgment was the finding that the strategic allocation lies within the limits of deviation and therefore have been used up. Of course, at the local plan inquiry, all the parties proceeded on the basis that the strategic allocation had not been used up. Inevitably, at those proceedings, the parties proceeded on that basis. Of course, in proceedings such as local plan inquiries, the parties seek to meet each others cases. It was no part of the Local Planning Authority's case at the Local Plan Inquiry that the strategic allocation had been met and so therefore, BPC did not present detailed evidence to meet a case suggesting that it had. The case was presented on the accepted basis that the strategic allocation had been used up. If the point had been raised before the inspector, BPC would have presented a very different case. It could have argued, for example, my Lord that the green space areas in the calculations that your Lordship has set out, the 91 hectares, should not have been counted as development towards the strategic allocation. It could have presented detailed evidence of the economic need for expansion land and, indeed, the consequences for the local economy if that land was not made available within the local plan.

In the event, it was only later that the council changed its stance and started to argue that the strategic allocation was made out. I respectfully submit that that clearly is a new point.

Your Lordship in paragraph 65, it is quite a long paragraph, about two-thirds of the way through, your Lordship indicated that:

"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 only specific areas."

With respect, my Lord, that choice needs to be seen in the context of the case it was meeting, namely that a strategic allocation had not been used up.

MR JUSTICE FORBES: Is that strictly right? The objection went in, expressed in very wide terms, and at that stage there was nothing in either the deposit plan or in what the council were saying that indicated that it was accepted that there was a shortfall of some sort in the strategic allocation. It was not actually said, was it? That is how it progressed at the inquiry, but it would have been open to BPC, who were arguing for further development land to meet its expansion needs, to present a detailed case on how that could be met not limited to the limit of deviation.

MR TAYLOR: Yes, but because of the local plan, the parties proceeded on the basis that there was policy -- suggesting that there was a strategic allocation that still had not been used up.

MR JUSTICE FORBES: The plan did not say that. Table 7 showed a shortfall. There was nothing in the plan - I will be corrected if I am wrong - which said there was a shortfall in meeting the strategic requirements of Policy E14?

MR TAYLOR: No, indeed. It was the agreed basis upon which the parties proceeded before the Inspector.

MR JUSTICE FORBES: Yes.

MR TAYLOR: The basic thrust of my submission is that there is a real prospect of success, because BPC practically did not have the opportunity to meet the change in the case that the council put forward, notwithstanding your Lordship's comments.

If I turn then to deal with some other compelling reason. Paragraph 20 of your Lordship's judgment, set out the accepted fact that the document (?) was important to the local, regional and national economy. Mr Auld, as I am sure your Lordship will remember in his first witness statement, set out a number of points concerning the significance of the decision in this matter before the court. In particular, at paragraph 48, that the court needed to expand in order to compete and continue to be attractive to existing potential customers. He explained that if BPC was unable to assure a potential customer of the availability of facilities, the customers would go elsewhere.

In my submission, my Lord, your Lordship's judgment has significant implications, not just for the court and BPC, but also for the local, regional and national economy. In the light of that, I would respectfully suggest that there is a compelling reason for this matter to be passed on to the Court of Appeal to consider.

MR JUSTICE FORBES: Thank you very much, Miss Olley, is there anything you want to say?

MISS OLLEY: My Lord, obviously I oppose the application for the reasons I know your Lordship has given. In my submission, it is clear from the correspondence that BPC was well aware of what the position was. For example, I refer to paragraph 34 in the judgment as recorded. The test is that the NSC should be perverse or Wednesbury unreasonable in its decision not to hold further inquiry, and your Lordship has found that there is obviously no question of that in this case.

MR JUSTICE FORBES: Thank you. Is there anything further you want to say, Mr Taylor?

MR TAYLOR: No, my Lord.

MR JUSTICE FORBES: I am not persuaded that there is any real prospect of success were this matter to go to appeal, nor am I persuaded that there is any other compelling or exceptional reason why this matter should be considered by the Court of Appeal. Accordingly, for those reasons permission to appeal is refused.

My reasons for the decision are as follows: I am not persuaded that there is any real prospect of success on appeal, nor is there any other compelling reason or exceptional circumstance which justifies the grant of permission.