England and Wales High Court (Administrative Court) Decisions

NOTTINGHAMSHIRE COUNTY COUNCIL v. SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS and NEWARK AND SHERWOOD DISTRICT COUNCIL [2001] EWHC Admin 293 (29th March, 2001)

CO/4490/99

Neutral Citation Number: [2001] EWHC Admin 293

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Royal Courts of Justice

The Strand, London, WC2A 2LL

Thursday 29^th March 2001

Claimant

First Defendant

Second Defendant

This is an application under s. 288 of the Town and Country Planning Act 1990 to quash a decision of the First Defendant, the Secretary of State for the Environment, Transport and the Regions, given by his Inspector's decision letter dated 27^th September 1999. The decision letter constitutes a redetermination of a planning appeal, where the initial decision was previously quashed by the Court on grounds irrelevant to the present proceedings.

Background

The appeal site constitutes open land on the edge of a housing estate on the southern side of Beacon Hill Road, on the eastern fringe of Newark. The site itself lies at the end of a cul-de-sac, Collis Close.

In the adopted local plan, the site is identified for use as a primary school, and safeguarded for that purpose. The local plan was adopted in March 1999, and covers the period to 2006. Policy EHC1 in the local plan provides, so far as material, as follows:-

Planning permission will not be granted for development which would inhibit the construction of primary schools on the following sites...Beacon Heights...unless:-

(i) it can be demonstrated to the satisfaction of the District Council that the facility is no longer required; or

(ii) sufficient alternative provision has been made elsewhere".

Paragraph 13.2 of the supporting text provides:-

"An essential requirement of any well planned area is the provision of a full range of education, health and community facilities, conveniently located to serve the needs of the resident population. There is a wide range and distribution of services within the district. The local plan provides an enabling role by ensuring that land and/or buildings are available to accommodate new or replacement facilities required during the plan period".

The structure plan comprises the Nottinghamshire Structure Plan Review approved in 1996, with a period to 2011. Policy 4/1 provides for housing land requirements to 2011. Policy 8/1 advises that provision should be made for education facilities as close as possible to the centre of the community they serve and with good access to all forms of transport.

Planning permission had been granted in relation to the site for a school and playing fields in November 1972. I assume that this permission had lapsed. For some considerable time, and at the time of the planning inquiry, the site was used by virtue of a licence between the County Council and the District Council, as temporary playing fields, and for a range of recreational activities by the public. It is important to appreciate, therefore, that the existing (and probably lawful) use of the land is for recreational open space. The landowner, Nottinghamshire County Council, is also the structure plan authority, and the local education authority. Having come to the view that the site was surplus to requirements, it sought to achieve a planning permission for residential development, in order to realise the value of the site.

In paragraph 5 of his decision letter, the Inspector found that there were three main issues in the case. The first was whether the appeal site is likely to be needed for educational purposes during the life of the adopted local plan to 2006 or at a later date. In relation to that issue, the District Council had accepted that there were sufficient spaces available in existing primary schools within a 2 mile radius of the site to meet the needs for housing plan for the period to 2006. In these circumstances the Inspector concluded, in paragraph 7, that the proposed development met the criteria set out in local plan policy EHC1. He continued:-

"The main difference between the main parties focused on the extent to which account should be taken of the needs in the period of the structure plan from 2006-2011. This is a material consideration that I will return to later in this letter".

The Inspector's second main issue was the suitability of the appeal site for educational use, having regard to its location and accessibility. The District Council contended that it was suitable in these terms. The County Council contended to the contrary. In paragraphs 8-12 of the letter, the Inspector addresses those issues, and reaches a conclusion favourable to the District Council in the following terms:-

"Having regard to all these factors, I conclude that the appeal site is suitable for its allocated use as a primary school".

The third main issue was whether development of the site for housing would result in a failure to meet recreational needs in the area or an unacceptable loss of a valuable amenity area, having regard to the long term implications. The Inspector addressed those issues in paragraphs 13-22 of his letter, reaching conclusions favourable to the County Council. In paragraph 23 he stated:-

"In summary on the main issues, whilst I find the site is suitable for use as a school, I find the proposal to build houses on the site is substantially in accordance with the policies of the development plan. Having regard to the requirements of section 54A of the 1990 Act, I now turn to consider the matter of the need for the school in the period from 2006-2011 as I have referred to in paragraph 7 above".

Under the heading "Need for the primary school in the period 2006 - 2011", the Inspector addressed that determining issue, which was the issue giving rise to the present proceedings. It is necessary to set out at greater length some of the conclusions of the Inspector:-

"24. The appellant accepted the District Council's forward projections that a further 2000 houses will be needed to meet the Structure Plan requirement for housing to 2011 set out in Policy 4/1. However, it was argued that this should be a matter for the next review of the Local Plan. In the appellant's view, it would be premature to identify a specific site either on the northern side of Beacon Hill Road, if there is a proven local need, or elsewhere in the Newark/Balderston conurbation until the location of new housing for the period from 2006-2011 has been identified.

25. The Structure Plan relies upon the Local Plan to allocate sufficient land to meet the local housing requirement over a given period. Nevertheless, I agree with the District Council's view that it would be equally premature and not in the interest of good planning to eliminate the option of providing a school on this site if it is considered suitable for that purpose and, in the longer term, there is a likelihood that it could be shown to be in the most suitable and appropriate location.

26. The District Council maintain that, although the precise location of housing for the period 2006-2011 will not be determined until the next review of the plan, it is reasonable to assume that to meet government policy on sustainability and the emerging advice in the draft revision to PPG3, between 75-100% of it should be built within or adjacent to the Newark urban area. The appellant did not challenge that approach and I consider it to be a reasonable assumption. On that basis there would be a deficit of some 97-207 primary school places in the area over this period.

27. The appellant argues that it may be more appropriate at the time to extend existing premises rather than to seek to build a new school. The optimum size for a primary school is 210 pupils. DfEE regulations require all schools within a 2 mile radius to be considered when judging the sufficiency of places. However, bearing in mind the deficit figures are over and above the maximum existing capacity of primary schools and even if the household projections continue to fall, I consider there is a strong likelihood of a need for a new primary school to meet the housing needs of the area to 2011.

32. Structure Plan Policy 8/1 advises that provision should be made for education facilities as close as possible to the centre of the community they serve and with good access to all forms of transport. If a new primary school is not built in the Beacon Hill area by 2011, it could leave a total of some 1500 houses with the nearest primary schools of some 300 pupils being in Coddington Village about a mile away beyond the A1(T) road to the east or in Barnby Road beyond the main railway line to the west.

33. Having regard to all these factors, and on the balance of probability, I consider a new primary school is likely to be needed in or close to the urban area of Newark. I find the appeal site suitable for that purpose and the possible future location of suitable sites for a new primary school is so constrained that it would be wrong not to continue to safeguard the appeal site for that purpose. Having regard to the provisions of Section 54A, I find this a material consideration of such importance as to outweigh the substantial accord of the proposal with the Development Plan."

Accordingly, he dismissed the appeal.

It is additionally necessary to make limited references to some of the evidential material which was before the inquiry. The County Council called Mr Foale, an education officer with the Council. He dealt at some length with the relevant funding criteria laid down by the Department for Education and Employment. In relation to the prescribed criteria relating to the construction of new schools, he explained the concept of "basic need". New school provision may be planned to meet a "basic need" shortfall in the number of places, which is assessed on the basis of growth areas. A growth area is an area where, having taken account of the available alternative school places within a 2 mile radius of the site of the proposed new building for primary schools, it is considered that more accommodation is needed to meet demand for places in the school age group. Mr Foale dealt at length with the application of this criterion to the particular housing growth patterns anticipated in the relevant area. He explained the Council's view that, for locational and other reasons, the appeal site was not a site that the LEA would wish to develop. He stated that it was likely that the LEA would increase the overall level of provision either by building a new school closer to the new development, or by extending existing schools in the areas of growth. The latter was stated generally to provide better value for money than building whole new schools.

In supplementary evidence, he explained that the housing growth figures showed that the anticipated number of children from all the housing commitments up to 2006 could be accommodated at existing schools in the area. Housing growth beyond 2006 of a further 1500-2000 dwellings suggested that all the available places could be filled by 2011. However, at that time, he stated that there was no definitive evidence to indicate where these additional dwellings would be built. Should a deficiency appear, it would be met in one of two ways. Depending on the scale of the shortfall, the LEA would either provide additional classrooms at existing schools or build a new school. A new school would only be built if projections indicated that it would be of a viable size, ie, with an ultimate size of between 180 and 210 children. He elaborated upon his reasons as to why, in any event, the LEA would not respond by building a new school at the appeal site.

The witness for the District Council produced a document which showed that the total demand for school places in the period to 2011 from development plan housing proposals would result in a deficiency of between 97 and 207 primary school places.

Following the dismissal of its appeal, the County Council advanced two main grounds of challenge before the Court. The first was to the following effect. The Inspector found that the appeal proposal was an appropriate planning use for the site, in substantial accord with the development plan. Pursuant to the test in Westminster City Council v. British Waterways Board [1985] 1 AC 676 at page 683, this acceptable planning use should not have been rejected in favour of an alternative use unless on a balance of probabilities the refusal would result in the land being put to that alternative use. The Inspector found that the alternative use was merely "possible" (paragraph 33) and accordingly he misdirected himself by using the wrong test and/or took into account an immaterial consideration. The second main ground was a reasons challenge. This was based upon the Inspector's finding that in the period 2006-2011 there would be a deficit of between 97-207 primary school places in the area. The Inspector also found that a primary school's optimum size was 210. The Inspector failed to give reasons why he found that there was a strong likelihood of a need for a new school when the figures did not substantiate this, and in the light of the LEA's stated intention to resolve any deficiency otherwise than by building a new primary school at the appeal site.

In elaboration of these submissions, Mr Cahill for the County Council, advanced four principal propositions, which I summarise as follows. First, the BWB test had, in effect, been endorsed by the House of Lords in London Residuary Body v. Lambeth London Borough Council [1990] 1 WLR 744. Second, in two previous decisions of this Court, it had been held that the BWB test had been applied not only in relation to the preservation of an existing use, but also in circumstances where the question arising was whether planning permission should be granted for a proposed use (use B) when a local planning authority proposes or requires that the land should alternatively be used not for an existing use, but for some other proposed use (use A). Those decisions, both unreported, are Bloomsbury Health Authority v. Secretary of State for the Environment, 27^th July 1992, and Jackson Projects Ltd. v. Secretary of State for the Environment, 9^th December 1997.

Third, it was contended that, in paragraph 33 of his letter, the Inspector was, in effect, creating a safeguarding policy of his own. This, it was submitted, was inconsistent with the development plan which has found it fit to safeguard the site only for the plan period to 2006. In this respect, the Inspector's material consideration contradicted the development plan by restraining development on the site beyond the plan period, when the development plan expressly permitted development so long as the site was not required within the plan period.

Fourth, the reasons challenge, summarised above, was elaborated.

When this matter originally came before the Court in August 2000, the Secretary of State was then represented by Mr David Forsdick (who was unable to appear on the resumed hearing). In essence, his submissions proceeded upon the basis that, in particular, Jackson Projects correctly represented the law; and that, properly construed, the Inspector had applied the BWB test to the circumstances arising here, and the decision letter was accordingly lawful. (I record that Mr Forsdick informed the Court that the Inspector thought that the BWB test was the appropriate test, and considered that he had applied it). I indicated some concern as to the latter part of Mr Forsdick's submission, but greater concern as to the first premise. Since it seemed to me that there appeared to be no warrant in the 1990 Act or binding authority for imposing a 51% probability test to the application of policies or proposals of local or other planning or public authorities which seek future uses or development, or which seek to protect or safeguard land for some particular purpose, I wished to hear further argument. That further argument was advanced, respectively, by Mr Cahill for the Claimant, and by Miss Nathalie Lieven for the Secretary of State. I am greatly indebted to Counsel for the additional submissions which were made.

Miss Lieven's submissions were, in summary, as follows. First, that the Inspector did apply the BWB test. Second, and alternatively, the BWB test should be confined to cases where it arose (existing use cases) and not to "future use" cases. Third, that Bloomsbury and Jackson Projects were wrongly decided. Fourth, she expressly reserved the Secretary of State's position to argue, on some other occasion, that in any event, BWB - in so far as it is concerned with planning matters - was wrongly decided.

Mr Cahill took issue with the first, third and fourth of these submissions. In relation to the second, he accepted that in the case of certain major projects (such as future rail projects) these need not satisfy a 51% probability test, but submitted that such cases were far removed from the present case where the local plan did not safeguard potential school use beyond the local plan period to 2006.

The BWB Test

This test was propounded by Lord Bridge explicitly in the context of the desirability of preserving an existing use of land. It may be helpful to recall the underlying planning justification. We live in a small country where land and buildings are generally a scarce resource. Where land is presently devoted to a use seen as beneficial or desirable in the public interest, while there may be a proposal for an alternative use which itself may have merits - or be open to no objection as such - the decision to grant planning permission is likely to have the long term effect that the land is no longer available for the presently desirable use.

It is important to appreciate the context of the decision, from the previous line of cases. In Granada Theatres Ltd. v. Secretary of State [1976] JPL 96, the issue arose as to the legitimacy of planning control seeking to preserve the use of a building as a cinema, in the face of an application for planning permission to use it for purposes of bingo. The circumstances by which the matter came before the Court need not be recounted here, but they ultimately resulted in a consent order quashing the planning decision on the basis that planning control could not be used to force continuation of the use of premises for a particular purpose. That decision was subsequently considered in Clyde & Co. v. Secretary of State for the Environment [1977] 1 WLR 926. In that case, planning permission had been granted for an office block, together with 8 flats as part of the same building. The building was largely erected, with the residential part incomplete. There was an application to change the existing permitted use of the residential part of the block to office use. That application was refused. The resulting appeal was dismissed by the Secretary of State. On the application to the Court, Willis J. quashed the decision, following Granada on the basis that the desirability of retaining the existing housing use was an immaterial consideration. The Court of Appeal held that this approach was wrong, Sir David Cairns stating at page 936:-

"The fact that the refusal of planning permission for a change of use cannot ensure that a current use which is a permitted use will continue was as already indicated the ground of the refusal of planning permission in the case of the Dartford cinema. It is equally true that whereas in the present case the permitted use has not been started, the refusal of an application to change of use cannot ensure that permitted use will ever be started. This was a point strongly relied on. I do not find it a compelling argument. The need for housing is certainly a planning consideration. If permission is given for office use, the permission will almost certainly be implemented and the building will be unavailable for housing. If permission for office use is refused, there is at least a fair chance that the building will be used for housing rather than being allowed to stand empty".

I therefore turn to Westminster City Council v. British Waterways Board (above). This was a case arising under section 30(1)(g) of the Landlord and Tenant Act 1954. BWB was the freeholder of land occupied by its tenant, Westminster City Council (also the local planning authority) as a local authority cleansing depot. The landlord sought to determine the tenancy on the ground of its occupation for its own proposed purposes. In such landlord and tenant cases, the question is whether the landlord objectively has a reasonable prospect of giving effect to his own intention to occupy the land for his own purposes. Accordingly, the issue focused on the ability of BWB to secure planning permission for its new proposals, which in turn raised the question of the desirability, in planning terms, of retaining the existing use. At page 682, Lord Bridge made it clear that the second of the propositions with which he had to deal was whether "the desirability of preserving an existing use of land may by itself afford a valid planning reason for refusing permission for a change of use". He continued:-

"As it seems to me, the preservation of an existing use (which is temporarily suspended) cannot afford a ground to refuse permission for an otherwise acceptable change of use, unless it can be shown that the refusal may reasonably be expected to lead to a resumption of the suspended use. This raises questions as to the true scope, for planning purposes, of the established existing use of the premises to which I must shortly revert".

Lord Bridge then adverted to the second proposition just stated. After a reference to Clyde there then appears the well known statement whose applicability is at the heart of the present proceedings:-

"In a contest between the planning merits of two competing uses, to justify refusal of permission for use B on the sole ground that use A ought to be preserved, it must, in my view, be necessary at least to show a balance of probability that, if permission is refused for use B, the land in dispute will be effectively put to use A".

This matter was subsequently considered by the House of Lords in London Residuary Body v. Lambeth London Borough Council [1990] 1 WLR 744. This case concerned the planning battles which raged over the use of the former GLC County Hall. In particular, the question was whether it was desirable and appropriate to retain use of part of the building for London Government offices. The case centred on the so-called "competing needs" test, which was rejected by their Lordships. In rejecting that test, Lord Keith stated (at page 751):-

"All that section 29(1) of the Act of 1971 [now section 70(2) of the 1990 Act] requires is that the Secretary of State should have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations. The amount of weight to be given to any material consideration is a matter for the judgment of the Secretary of State".

Following reference to Clyde and BWB Lord Keith continued:-

"In my opinion nothing in either the Clyde & Co. case or in the Westminster Council case is properly to be interpreted as laying down that the competing needs test exists as a matter of law. Such a proposition would involve putting an unwarranted gloss on the language of section 29(1) of the Act of 1971. The most that can be extracted from the two cases is that the desirability of preserving an existing use of land is a consideration material to be taken into account under that subsection, provided there is a reasonable probability that such use will be preserved if permission for the new use is refused".

In Bloomsbury Health Authority v. Secretary of State (above) there was an application for planning permission to use a redundant hospital building in Covent Garden for primarily office use. Policies of the local planning authority sought not only to restrain office use, but also to seek residential accommodation in, inter alia, the appeal building. The Inspector dismissed the appeal. The decision letter was quashed on the basis that the Inspector had failed to consider, let alone apply, the BWB probability test as to the likelihood of residential use ultimately taking place within the building. It is to be noted that the Secretary of State apparently accepted, in argument, that the BWB test applied in principle to a future use, thought it was submitted that the test was not applicable where there was - as in that case - a planning objection to the proposed use.

In Jackson Projects (above) there was an application to change the use of premises to Class B1 purposes. The draft local plan sought residential use of the premises. (Accordingly, this was not a section 54A case). A lawful development certificate existed for Class B8 purposes. The applicant submitted at the Inquiry that, in the light of the Class B8 certificate, there was no prospect of residential development occurring. The appeal was dismissed, and the main ground of challenge in the Court was that the Inspector had failed to apply the reasonable probability test to the residential use. Mr Nigel Macleod QC, sitting as Deputy Judge, reviewed the authorities and came to the following conclusion:-

"In the light of all these authorities I am satisfied that the British Waterways Board test should have been applied, and the Inspector should have asked himself whether, on the balance of probabilities, the premises would have been effectively applied to residential use if permission for B1 use was refused".

In that case, the Secretary of State accepted that the BWB test applied to "future use" cases. (It is apparent from Miss Lieven's submissions in the instant case, and she confirmed, that the Secretary of State has undertaken a review of its position on the matter, which is capable of having considerable implications for development control).

In both cases, therefore, it was assumed that the BWB test applied to future use cases.

Finally, in relation to the authorities, I should mention Bylander Waddell v. Secretary of State for the Environment [1994] JPL 440. That case differs significantly from the present case. First, the desired use in that case (residential) was the existing use of the premises. Second, there was an adopted local plan policy resisting the loss of residential use. Although Mr Vandermeer QC (sitting as Deputy Judge) held that the 51% probability test needed to be applied in the context of such a policy, I do not have to consider this decision further, in the light of the clear distinctions involved.

Conclusions on the issues

If the BWB test was the test that, as a matter of law, fell to be applied, was it properly applied in this case?

I will not set out the submissions at length. In essence, Mr Cahill submitted that the Inspector's conclusion in paragraph 25 - "...there is a likelihood that it could be shown to be in the most suitable and appropriate location...", mixed "likelihood" with "could be shown" and in any event fell short of a finding that there is a probable future educational use. By reference to paragraph 33 of the letter, he submitted that in effect the Inspector was simply saying that the use of the appeal site for educational purposes is a possibility, and that clearly failed the BWB test. Miss Lieven submitted - against the accepted requirement to read the decision letter as a whole - that the Inspector was making a finding that, if residential development were refused, it was more likely than not that the land would be put to educational use. She emphasised paragraph 25, the likelihood of this site being the most suitable and appropriate location. She emphasised the findings in paragraph 27, as to the "strong likelihood" of a need for a new primary school by 2011. She urged that the factors in paragraphs 28-32 went to the appropriateness of the location of the site, and the lack of better alternatives. Structure plan policy 8/1 supported the appropriateness of the location. By reference to paragraph 33, she emphasised the findings of need, the suitability of the site, and the constraint on other possible sites. She submitted that, read as a whole, the conclusions were that educational use was more likely than not to take place.

While the matter is plainly not clear cut, I have come to the conclusion that I do not accept that this was, in reality, the Inspector's approach, nor that this was his conclusion. In my judgment, the Inspector's approach was predominantly driven by his opinion or planning judgment that it was, in all the circumstances of housing growth, location of that housing growth etc. desirable to preserve the option of locating a primary school on the appeal site. This is seen, in my view, clearly in the main introductory paragraph to the key conclusions, paragraph 25, where the Inspector said:-

"...I agree with the District Council's view that it would be equally premature and not in the interest of good planning to eliminate the option of providing a school on this site if it is considered suitable for that purpose and, in the longer term, there is a likelihood that it could be shown to be in the most suitable and appropriate location".

That being the essential question he raised, I construe paragraph 33 as being the answer to it. A new primary school is likely to be needed in this area. The appeal site is suitable for the purpose. Accordingly, it would be wrong not to continue to safeguard the site for that purpose. Further, the County Council had clearly stated in evidence that the LEA would not develop the appeal site for a school in any event - both for reasons of likely pupil numbers, but also for locational reasons. If the Inspector had properly been directing his mind to the BWB test he would have had to grapple with this - seemingly uncontradicted - evidence, and given his reasons for doubting it, or reaching an opposite conclusion. In my judgment, the Inspector's conclusions were couched predominantly in terms of the desirability of the option being preserved, rather than in terms of the planning merits of the site for educational use being such as being more likely than not to cause the LEA to take a different decision to that which they stated at the Inquiry. Accordingly, I reject the Secretary of State's submissions on this first point.

However, was the Inspector bound to apply the BWB test?

As a starting point, a reminder of certain broad propositions carrying the highest authority may be appropriate. "Planning control is the creature of statute": per Lord Scarman in Pioneer Aggregates (UK) Ltd. v. Secretary of State for the Environment [1985] 1 AC 132 at page 140. I have already referred, above, to the terms in which Lord Keith rejected the "competing needs" test. Further:-

"If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State": per Lord Hoffmann in Tesco Stores Ltd. v. Secretary of State for the Environment [1995] 1 WLR 759 at page 780.

While Lord Bridge's statement in the Landlord and Tenant Act case of BWB might strictly not be binding in relation to cases under the Town and Country Planning Act 1990, it plainly carries such authority that it would not be possible for this Court to doubt it. The more so when, albeit obiter, essentially the same statement of principle falls from Lord Keith in London Residuary Body. How those dicta are reconcilable with the equally high authority of cases such as Pioneer and Tesco Stores is not a matter which is open to this Court to resolve, and the Secretary of State expressly reserves his position to explore that matter in a higher Court.

However, it is appropriate for this Court to examine whether there is any justification for extending the operation of the principle beyond the four corners of the cases in which the principle was adumbrated.

Both cases related to an existing use of land. The statements were clearly made within that specific context, and I see no suggestion that their Lordships intended their statements of principle to be applicable beyond such context.

An existing use simply exists, by virtue of long user or the implementation of some past planning permission. (It may be added that in neither BWB nor LRB did the existing use in any way carry the support of a policy or proposal of a development plan, or other considered or established policy).

In my judgment, different considerations arise in the "future use" class of cases. I repeat that one of the continual problems with which planners at all levels have constantly to grapple is, in a country where land is an increasingly scarce resource, to make wise decisions as to the use of such land for the benefit of existing and future generations. If the judgment is made, whether through the development plan process or indeed outside it, that it appears desirable to preserve the option of using a piece of land for a purpose seen to be of benefit in the public interest for the country or the local community, this is, in principle, a material planning consideration for the purposes of sections 70(2) and 54A of the Act. I understood this to be common ground in this case. The weight given to that consideration will vary hugely from case to case. Reserving land - or the option to use such land - for an infrastructure project of national importance will undoubtedly command significant weight. Each case will turn on its own merits, but the importance of the project or proposal, its desirability in the public interest, are undoubtedly matters to be weighed. Therefore, in considering whether to grant planning permission for a proposal (use B) which will pre-empt the possibility of the desirable future use (use A), the relative desirability of the two uses have to be weighed. In striking the balance, the likelihood of use A actually coming about is doubtless a highly material consideration. But in my judgment, there is no warrant to put a gloss on the wide statutory discretion by imposing the prohibition that the desirability of use A can only be a material consideration if it has a 51% probability of coming about. Indeed, as Miss Lieven submits and I accept, the implementation of a future use will invariably be a more speculative matter than the continuance or resumption of an existing use, and will generally involve a number of variable factors, as - indeed - starkly demonstrated by the present case.

For these reasons, I respectfully decline to follow Bloomsbury Health Authority and Jackson Projects. I naturally do so with great diffidence, but having come to the conclusion that they were wrongly decided. I comfort myself, to some degree, with two factors. First, that in contrast to the present case, the matter was not fully argued, if at all, in either previous case.

Second, there appears to me to be a relatively strong analogy between the principles involved in this case, and those involved in the so-called "fallback" cases. The analogy is, of course, not exact. In the instant line of cases, the local planning authority is saying that planning permission should be refused for proposed use B on the ground that some alternative future use should come about - or at least the option should be preserved. In the fallback cases, the applicant is saying that planning permission should be granted for proposed use B, in the context that it is likely to cause some harm to planning interests, on the ground that, alternatively, he will be able to put the land to an even more harmful alternative use (use A), and might do so. Countless cases have considered the fallback principles, many of which have grappled with the question as to the requisite degree of likelihood of the more harmful use (use A) actually coming about. In New Forest District Council v. Secretary of State for the Environment (1996) 71 P & CR 189, Mr Nigel Macleod QC held that for the fallback position to be a material consideration, there was no distinction between a test of "real likelihood" and one of "real possibility". The contrast was between real likelihood or real possibility and no such possibility. It was not appropriate to apply a higher standard than the "real possibility" test. With specific reference to the BWB test, he stated:-

"The case does not consider a distinction between "real possibility" and "real probability" and provides little assistance for the consideration of such a distinction. I agree with Mr Holgate, for the First Respondent, that the Westminster case should not be interpreted as laying down a general rule that no consideration can be treated as material unless the harm which is of concern is shown to be more likely to occur than not. His example that amenity objections should be subject to balance between the size of chance of occurrence and seriousness of consequence if they do occur is apt to demonstrate this".

In South Buckinghamshire District Council v. Secretary of State for the Environment (1999) PLCR 72, Mr George Bartlett QC reviewed the relevant cases and stated at page 79-80:-

"In my judgment where, as in the present case, the decision-maker is deciding whether planning permission for the development applied for should be granted in order to avoid the greater harm that would result from the resumption of some particular lawful use of the application site, it is inescapably necessary that he should consider the likelihood of such resumption taking place. This is so, it seems to me, for two reasons. First, unless the resumption of the use is a realistic possibility, it would be Wednesbury unreasonable to treat the harm that would result from such resumption as a reason for granting permission for the new development. Secondly, the degree of probability of the use being resumed will, or at least may, be a material consideration, to be weighed by the decision-maker along with the harm that the use would cause and the other pros and cons of the new development proposed. If the harm that would arise from the resumed use would be very serious, it may well be that a lower degree of probability of its resumption would be sufficient to justify the grant of permission than in the case of less serious harm. The assessment of the probability and the weight to be attached to it in the overall planning judgment, however, are matters for the decision-maker".

Whilst, as I say, the analogy between the two lines of cases is not exact, they are both concerned with the proper approach of the Court to the material consideration of the implications arising from the alternative use of land, and the prospects of such use coming about, should permission be refused for the applicant's proposed use. Accordingly, I find that the analogy is of material assistance in reaching the conclusion I have.

I accordingly hold that, subject to matters to which I turn below, it was in principle open to the Inspector to refuse residential development in the instant case, in the light of his conclusion that it was desirable to preserve the option of retaining the appeal site for educational use, albeit that he made no finding that it was more likely than not that the site would effectively be put to educational use. Since it is plain that the Inspector would inevitably have reached the same conclusion had he applied what I hold to be the correct test, the challenge on this central ground must fail.

This leaves two further issues, with which I can deal much more shortly.

Safeguarding

I have set out the essence of Mr Cahill's submissions on this matter above, to which I was initially attracted. Proposals to safeguard land for public purposes are normally to be set out in the development plan. They plainly have potentially severe implications for the value of land, and the owner's ability to deal with his land. Those restrictions are recognised by the blight provisions in Part VI of the 1990 Act. Government advice in PPG12 advises that great care should be taken in the drafting of safeguarding policies and their duration: see PPG12, paragraphs 5.22, 6.24-6.26.

The use of the term "safeguard" in paragraph 33 of the decision letter is therefore particularly unfortunate, as Miss Lieven accepted. However, I do not find an error of law here. The context for the final conclusions in paragraph 33 is, as I have already found, the introductory statement of the issue in paragraph 25. There, the essential question is posed. It is answered in the succeeding paragraphs. The decision letter must be read as a whole. Accordingly, I find that the Inspector was actually concluding that it would be wrong to lose the option of providing a school on the appeal site. This was a lawful and proper conclusion on the facts.

Reasons

I have set out the essence of Mr Cahill's submission above. On this issue, there was a witness statement supplied by the Inspector, paragraph 3 of which stated:-

"At the Inquiry, evidence was given by the claimant's school witness, Mr Foale, that a new school would be justified for between 180-200 places, and that if the local education authority were some 50-60 places short of that they would seek to add new classrooms to existing schools. The implication was that even with perhaps as few as 120 excess children a new school would be likely to be built rather than additional classrooms".

At the hearing, there was some debate as to the source of this statement. Since it is not to be found in the proofs or documents at the inquiry, it seems only explicable upon the basis that it reflects oral evidence given during the inquiry.

With that explanation of the evidential background, and the common ground of a deficit of 97-207 places (see the last sentence of paragraph 26 of the decision letter) the conclusion in the last sentence of paragraph 27 becomes adequately clear. In any event, of course, the reasons challenge only really has a separate force and existence if Mr Cahill had succeeded on the BWB point, and the issue were whether it was more likely than not that the site would effectively be put to educational use if planning permission for residential development were refused. Since this is not the issue, the reasons challenge cannot, in my judgment, succeed.