Neutral Citation Number:  EWHC Admin 77
IN THE HIGH COURT OF JUSTICE CO/2881/2000
QUEEN'S BENCH DIVISION CO/2887/2000
Royal Courts of Justice,
London. WC2A 2LL
Friday, 2nd February, 2001
THE HON. MR. JUSTICE OUSELEY
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CASTLEFORD HOMES LIMITED
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(1) THE SECRETARY OF STATE FOR
ENVIRONMENT, TRANSPORT AND THE REGIONS
(2) ROYAL BOROUGH OF WINDSOR AND MAIDENHEAD
(Transcript of the Handed Down Judgment of
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr. W. Robert Griffiths QC and Mr. James Strachan, instructed by Messrs. Stuchbery Stone, appeared on behalf of the Claimant.
Mr. Timothy Mould, instructed by the Treasury Solicitor, appeared on behalf of the Defendants.
As Approved by the Court
Crown Copyright ©
1. Castleford Homes Ltd. sought planning permission for three alternative developments on land at Newlands Drive, Maidenhead in the Royal Borough of Windsor and Maidenhead. One application sought permission for 5 detached houses and the other two sought permission for 6 detached houses. Each would provide for substantial houses with large gardens on a site of approximately 1/2 ha. with a new gated access drive. The applications were full applications and so the siting of the houses formed part of the applications. None of the applications were determined by the Royal Borough and the appeals against non-determination were heard by an inspector appointed by the Secretary of State, who, following an Inquiry in June 2000, dismissed each appeal.
2. There were three main issues as the Inspector analysed the appeals:
(1) the significance of the absence of provision on-site of a small children's play area;
(2) the effect of the scheme on nearby residents;
(3) and over-development harming the character of the area.
The Inspector concluded that each scheme failed to comply with the Development Plan because of the lack of on-site provision of a children's play area; appeal 1 which related to five dwellings was concluded to have an adverse effect on a neighbouring property known as 6, The Ridings; and each scheme would constitute over-development in part at least because of the absence of the children's play area and in part because of layout details.
3. The Claimant contends, in brief, that the decisions were unlawful and procedural requirements were not complied with because:
(1) the Development Plan was misinterpreted and factors relevant to its application were ignored in relation to the children's play area;
(2) the finding that on-site provision of a children's play area was necessary was a breach of the rules of natural justice in view of the common position of the Claimant and the Council;
(3) the Inspector failed to undertake the overall weighing exercise envisaged by s.54A of the Town & Country Planning Act 1990 in its reference to other material considerations;
(4) it was also said that the Inspector's reasons were legally inadequate.
4. Although the extensive grounds of challenge included an attack on the Inspector's conclusions in appeal 1 on the impact which the scheme would have on 6, The Ridings and upon the Inspector's conclusions on the way in which the proposed layouts adversely affected the character of the area and constituted over-development, those grounds were not pursued before me, rightly so, because they were no more than a challenge to the planning merits of legitimate planning conclusions. However, the conclusions of the Inspector in relation to over-development in all three appeals, was sufficiently closely bound up with the requirement for a children's play area, for success in the challenge, which focused on the children's play area, to mean that the decision letter would be quashed. This was also true in relation to appeal 1, which though it contained the additional conclusion in relation to 6, The Ridings, was not dismissed in terms that made it clear that had that been the only factor, the result would still have been the same.
5. Also in these proceedings permission was sought by the Claimant to apply for judicial review to quash the decision letter on the Claimant's costs application. The Inspector concluded that the Royal Borough of Windsor and Maidenhead, the Second Defendant which does not appear, behaved at least unsatisfactorily in failing to engage in sufficient discussions before the appeal and in failing to resolve its position so as to determine the applications and was also unreasonable in the apparent approach which it took to PPG.3. However, the Inspector made no order as to costs because he considered that the Claimant had not suffered any loss in consequence of such unreasonable behaviour. It was agreed on all sides that if the main decision letter were quashed the costs decision letter should be quashed too; but Mr. Robert Griffiths QC, for the Claimant, also submitted that there were grounds for quashing the costs decision letter in any event.
The Decision Letters:
6. It is now necessary, unfortunately at some length, to set out the relevant passages in the decision letters.
7. In paragraphs 9 to 20 of the main Decision Letter the Inspector considered the need for children's play provision to be made on site.
"9. Structure Plan Policy R5 indicates that 'provision should be made in association with new development for facilities for sport and recreation including public open space on a scale which reflects the needs arising from the development and in a form which complements the existing provision'. Paragraph 12.17 of the Plan goes on to say that, in accordance with this policy, proposals for new housing wil only be acceptable where they include appropriate recreational provision, and that informal open space should normally be within the site and easily accessible on foot.
10. Paragraph 3.2.14 of the Local Plan states that it is reasonable to expect all new development to contribute to the provision of open space which is required to meet the needs of that development, explaining that this will ensure that public open space is provided and paid for by the developers (and subsequent occupiers) of new dwellings rather than the burden falling on local taxpayers generally.
11. Local Plan Policy R4 therefore requires new housing developments to allocate a minimum provision of public open space on site in accordance with the standards set out in the Policy. For sites of 0.4 to 1 hectare the requirement is to provide children's playspace only. Policy R5 provides, amongst other things, that within new developments of family houses on sites larger than 0.4 hectares or 15 units (whichever is the smallest), the Council will require, in appropriate locations, a Local Area for Play (LAP). However, paragraph 3.2.13 provides that on sites of less than 1 hectare the shortfall can be made up by means of a pro rata financial contribution towards off-site provision by the Council.
12. In their evidence the appellants referred me to a number of other developments where the question of play space did not appear to have been considered. However, I do not believe that this could justify a similar approach to these appeals. Section 54A of the Town and Country Planning Act 1990, as amended, requires not only that I have regard to relevant development plan policies, but that my determinations be in accordance with the development plan unless material considerations indicate otherwise.
13. Both the Structure Plan and, in particular, the Local Plan have been adopted recently, and their policies are, in my view, quite clear. Being half a hectare or thereabouts in size, this is a site which should be considered against a backdrop not only of Structure Plan Policy R5 but also of Local Plan Policies R4 and R5. As a consequence it seems to me that, in essence there are two remaining questions that need to be addressed in the consideration of this issue. The first is whether the appeal site is an 'appropriate location' for a LAP, whilst the second is whether it would be appropriate, as an alternative to on-site provision, to require a financial contribution towards off-site provision.
14. Whilst the Council argue that there is a deficiency of open space of the nature sought by Local Plan Policy R5 the site does not lie within an area of Open Space Deficiency as defined by the Local Plan, because of its proximity to Maidenhead Thicket. However, there is nothing to suggest that an absence of deficiency should be equated with rendering a development site an inappropriate location for a Local Area of Play. Paragraph 3.2.18 of the Local Plan accepts that, if it can be demonstrated that sufficient informal open space exists adjacent to the site, a smaller proportion of the site area may be acceptable for on-site open space provision, but does not suggest that a complete absence of such provision would be countenanced. In any event, in this case I believe that there is force in the argument that Maidenhead Thicket, a large informal open space owned by the Nationl Trust and used by, amongst others, people walking their dogs, is very different from a LAP.
15. A LAP is defined, in the National Playing Fields Association's publication, The Six Acre Standard, as 'a small area of unsupervised open space specifically designed for young children for play activities close to where they live'. That publication also gives details of, amongst other things, target users, mainly 4-6 year old children, and content, indicating that they should have seating for carers and be suitable for games such as tag, hopscotch, French cricket, or play with small toys. It also indicates that they should be located within 1 minute's walking time of home and that adequate safety measures should be provided to minimise the risk of road-related accidents.
16. Nevertheless, in addition to those cases where the question of recreation provision does not appear to have been considered, the appellants have referred me to cases where either the Council appear to have accepted that the proposed site was not an 'appropriate location' for a LAP, or have allowed the loss of existing play space. However, I believe that these may be readily distinguished from the current appeals.
17. For example, the development to the rear of Ross Road, Maidenhead, involved the redevelopment, by a Housing Association, of a garage court and part of a now unequipped, and previously vandalised, open space, albeit in an area of 'open space deficiency'. However, a smaller equipped lockable and lit play area was to be provided in its stead and, in the circumstances of that case, officers felt that these advantages outweighed the loss of the majority of the larger play area, which they described as having little recreational value other than as an area for playing football.
18. In relation to a proposed residential development at Willow Drive, the Council officers' report to a Committee referred to the agent's argument that the site was not an 'appropriate location' because of the small number of large houses on large plots within the catchment area and the main roads which would need to be crossed by those coming to the site. That argument appears to have been accepted. However, I see this as something of a 'red herring' in this case, for I agree with the appellants' approach (and that of the Structure and Local Plan) that the development should only be required to meet the open space requirements of that development. I do not therefore consider that the approach taken in relation to Willow Drive justifies an absence of provision, in accordance with development plan policy, where the LAP is intended to serve the needs of the development of which it forms part.
19. Whilst, in these appeal proposals, the private gardens provided with the proposed dwellings could accommodate at least some of the activities envisaged for a LAP, parents might be reluctant to let their children play certain gmes very close to the house and within what could be, if judged by the Landscape Proposals for the five houses scheme, a fairly formal setting. In any event, the NPFA see the provision of adequate areas of playing space as a vital community requirement (paragraph 2.17 of The Six Acre Standard). The size of the appeals site and the low density of the development might result in only a small 'community' utilising such a space. Nevertheless, the proposed dwellings are sizeable family homes and the development may therefore reasonably be expected to have a number of children within, or close to, the target age group. It seems to me that, by allowing young children to play away from, but in close proximity to, their homes and under the supervision of carers, a LAP would perform a different role from that of a private garden or, indeed, from the hardsurfaced private drive, suggested by the appellant as an alternative play area.
20. Accordingly, I can find nothing to suggest that the appeal site is not an appropriate location for a LAP. In reaching that view I have borne in mind the fact that the sales particulars for the site made no mention of such a requirement. However, it seems to me that prospective purchasers would have been unlikely to familiarise themselves with any planning policies which might place constraints on the development of the land and can see no justification for adopting a different standard to this site, previously owned by the Council, than to any other privately-owned development land. Likewise, I am aware that the Council had a full set of drawing and artists' perspective, when considering the tender submitted by the appellant. However, that did not constitute a planning application and the Council were not acting as local planning authority when they considered the various tenders submitted by prospective purchasers."
8. The Inspector then considered whether it was appropriate that a financial contribution towards off-site provision should be accepted. He said in paragraph 21:
"21. Looking, however, at the question of a financial contribution towards off-site provision of an equipped play area, this alternative was suggested, in the absence of plans showing the on-site provision of a LAP, by the Council's Leisure Services Officer as a 'practical solution'. Boyn Grove was named as a possible site, and a sum in the region of £20,000 as one which did not seem unreasonable. Shortly before the Inquiry the appellant prepared a Unilateral Undertaking consistent with these suggestions, to take effect should my decision support such an approach. However, this was without prejudice to the appellant's view that the proposed financial contribution was not directly related to the development and had not, in any event, been supported by evidence as to the cost of provision of an equipped play area, or the need for such equipment at Boyn Grove."
9. The Inspector considered that the site at Boyn Grove, apparently the nearest suitable location as the Inspector understood matters, was too far from the appeal site to be of any real value to children living at the appeal site and therefore there was no direct relationship between the development and the financial contribution suggested by the Council.
10. The Inspector then concluded on this issue in paragraph 25:
"25. I therefore consider that the financial contribution suggested, for the purpose mooted, would be an inappropriate means of satisfying Local Plans Policies H4 and H5. However, as no on-site provision is proposed, and no other means of complying with Structure Plan Policy R5 and Local Plan Policies R4 and R5 is suggested, I identify a clear conflict with the development plan. As I am also satisfied that, for the reasons outlined above, the opportunities afforded by a LAP could not be fulfilled by Maidenhead Thicket, the private gardens within the development, or the provision of additional facilities at Boyn Grove, I conclude that the development does not make adequate provision for children's play."
11. The Inspector then turned to deal with the impact of the scheme on the amenities of residents and concluded that only appeal 1 would adversely affect any living conditions and those would be of the residents of 6, The Ridings.
12. The Inspector then turned to examine over-development. He said in paragraphs 39, 40 and 41:
"39. There is no dispute that the appeal represents a sustainable location for residential development, within an urban area. However, all the developments to which I have referred, as well as the formulation of the proposals subject of the three appeals, pre-dated the issue of the new PPG3 on Housing. That Guidance is clearly highly material to the determination of these appeals and in that Guidance the Government advocate densities for new housing of between 30 and 50 dwellings per hectare net. Even the six house schemes achieve less than half this density. None of the schemes can therefore be regarded as representing over-development of the site in terms of numbers alone. However, I appreciate that the site is relatively small and that the proposals are designed to be in character with their surroundings, a matter which is clearly also of concern to local residents as well as the Council.
40. In addition to these considerations I must bear in mind the fact that none of the schemes make provision for a LAP and, to that extent, all can be said to represent over-development of the site.
41. The question of over-development is not, therefore, simply a matter of numbers, and can bring into play a number of, perhaps competing, considerations. However, in the schemes before me it is, in essence, the combination of the size of the houses (which the Council say are, in relation to Appeal 1, at least 25% larger that the prevailing character) and their form, together with the size of the plots on which they are sited, which lead to the Council's view that the proposals would result in over-development of the site."
13. The Inspector considered the detail of the layouts of the various schemes and made a number of critical comments. However, he concluded as follows in relation to the issue of over-development. At paragraph 46 he said:
"46. I therefore conclude, in relation to the third main issue, that the schemes represent over-development of the site in that they fail to make adequate provision for children's play, in the form of a LAP, and that the proposals subject of Appeals 2 and 3 represent over-development that would harm the character of the area, in conflict with Structure Plan policies LD3 and EN1, and Local Plan policies H10, H11, and DG1."
14. Finally, the Inspector set out his overall conclusions at paragraphs 47 and 48:
"47. My overall conclusions are, therefore, that each of the schemes fails to make adequate provision for children's play; that the development of Appeal 1 would have an adverse effect on the living conditions of those resident at No.6, The Ridings, by reason of the dominant effect of the house proposed for Plot 5; and that the proposals subject of Appeals 2 and 3 would result in over-development that would harm the character of the area. In the light of this I shall dismiss all three appeals.
48. In reaching my conclusions I have taken into account all other matters raised with me, including appeal decisions not specifically referred to, and the fact that the schemes are acceptable in terms of such matters as highways, parking, landscaping and arboricultural matters. I have also borne in mind the concern raised by at least one local resident that the development would be gated which, it seems to me, would be somewhat out of character with the area. However, there are no factors that outweigh those considerations to which I have already referred and which lead me to my decisions."
15. I now turn to the Costs Decision Letter. Reference was made to the Costs Decision Letter, not just because of the challenge to the decision on costs, but also because it was submitted by Mr. Mould, who appeared for the Secretary of State, that the Costs Decision Letter contained an illuminating discussion as to what the position of the Royal Borough had been at the Inquiry on the question of whether a children's play area had to be provided on site. I take that aspect first.
16. It was submitted, in relation to costs by the Claimant, that the Council had produced no evidence whatever to justify the position it had taken in relation to the provision of open space. It had failed to provide evidence of any deficiency of open space or as to the reasonableness of the £20,000 contribution requested, or as to the link between the request and the development. The Inspector recorded the Council's response to that particular contention in this way:
"13. The appellant's contention that there had been no evidence on the open space argument was not accepted. The Council had referred to their clear policies regarding play areas for residential development, contained in Local Plan policies R4 and R5. Correspondence had been entered into by the Council's Leisure Services Officer, with the appellant's witness, who had been provided with information. There was a deficiency of open space for this type of play area. The Thicket was not suitable to serve as a LAP (Local Area for Play). The Council's Leisure Services Officer had suggested a possible solution with a view to negotiating with the developer, and this was not an unreasonable approach. Boyn Grove was the nearest site where provision could be made. However, this was only a suggestion. It was not mandatory and it was preferable for the required provision to be made on site. As to the figure suggested, of £20,000, there had been correspondence on this."
17. The Inspector concluded to open space;
"17. So far as the question of open space is concerned, it is, I believe, inaccurate to suggest that no evidence was presented to justify the Council's objection in relation to open space provision. In particular the relevant Local Plan policies were discussed. I believe that the Council went astray by considering the alternative of off-site provision at Boyn Grove. However, it seems to me that this suggestion was intended to assist the appellant and that, whilst it may have been misguided it was not necessarily unreasonable. In any event, above the preparation of a unilateral undertaking, which was a matter of choice for the appellant, this is unlikely to have led the appellant to incur or to waste expense unnecessarily."
18. I now turn to the more general conclusions of the Inspector in relation to costs. What he said was this:
23. In the light of the above I conclude that, whilst the Council may have acted unreasonably, the appellant is unable to show that this caused him to incur, or to waste, expense unnecessarily. I shall therefore refuse the applications for awards of costs."
The Development Plan Provisions in Relation to Children's Play Space:
19. It is necessary to set these out in a little detail because of the extent of the Claimant's submissions as to their interpretation and application. I deal first with the Berkshire Structure Plan. Policy R5 states:
"Provision should be made in association with new development for facilities for sport and recreation including public open space on a scale which reflects the needs arising from a development and in a form which complements the existing provision."
20. This policy is supported by text which refers to the valuable green space which play areas can provide, to the element of recreation provision and to the importance of ensuring that such open space keeps pace, in amount and location with new development. At paragraph 12.17 of Structure Plan the comment is made that:
"In accordance with this policy proposals for new housing will be acceptable only where they include recreational provision. Informal open space should normally be within the site ... ".
It continues to the effect that District Councils should include open space standards in their Local Plans as a basis for judging the adequacy of provision in new housing development using National Playing Fields Association standards as a minimum subject to variation to meet local circumstances.
21. The other component of the Development Plan, in accordance with which s.54A of the Town and Country Planning Act 1990 requires that decisions should be made unless other material considerations indicate otherwise, is the Royal Borough of Windsor and Maidenhead Local Plan. Policy H10 provides:
"New residential development schemes will be required to display high standards of design and landscaping in order to create attractive, safe and diverse residential areas and, where possible to enhance the existing environment.
In considering applications for new residential development the Borough Council will require, where appropriate that proposals:... (3) provide public open space and equipped children's play areas in accordance with the Borough Council's standards of provision set out in chapter 3 ...".
22. The standards are set out in Policies R4 and R5. Policy R4 states in relation to a site of half a hectare that;
"The Borough Council will require new housing developments to allocate a minimum provision of public open space on site ...".
of 15 per cent of the gross site area and refers forward to Policy R5.
23. Policy R5 provides:
"Within new developments of family houses on sites larger than 0.4 Ha. or 15 units (whichever is the smallest), the Borough Council will require, in appropriate locations, a local area for play (LAP)".
24. In support of his submissions Mr. Griffiths referred to the Reasoned Justification for the open space policies. Paragraph 3.2.12 states that policies R4 and R5 set out "the minimum requirements for on-site provision of public open space". Paragraph 3.2.13 states that "on small sites of less than 1 ha., or on larger ones where only a part of the full requirement can be provided, the shortfall can be made up by means of a pro rata financial contribution towards off-site provision by the Council". The Reasoned Justification continues by referring to the problem tht has already been created by developments which make no contribution towards open space provision, creating shortfalls which it will be difficult to remedy. It continues in paragraph 3.2.14; "it is reasonable to expect all new development to contribute to the provision of open space which is required to meet the needs of that development".
25. Paragraph 3.2.16 refers to the Council's intention of producing an Open Space Strategy to establish levels of provision and the ways of meeting deficiencies. Paragraph 3.2.17, upon which Mr. Griffiths put some weight, reads;
"In certain cases it may be appropriate for funds to be used to improve the quality of the existing public open space rather than to increase the quantity. This may arise in areas where little development is expected or where there is adequate existing provision in terms of quantity but where there is scope for improving facilities at, or the appearance of, the open space (for example through the provision of an equipped children's play area)".
It was upon the next paragraph, however, that Mr. Griffiths placed greatest reliance. Paragraph 3.2.18 states:
"The public open space standards will be applied flexibly. If it can be demonstrated that sufficient informal open space already exists adjacent to the site, a smaller proportion of the site area may be acceptable for on-site open space provision. Conversely on large sites in areas of identified open public space deficiency, a larger proportion of on-site provision may be appropriate ... Flexibility will also be applied in the breakdown of public open space between the different categories. In the case of houses designed for family occupation (normally 2 to 4 bedroom houses) the first priority will be children's play space to the standard required in Policy R5."
26. My attention was also drawn by Mr. Griffiths to paragraph 3.2.10 which is the justification for policies dealing with overcoming deficiencies in existing open space provision. Paragraph 3.2.10 refers to an accessibility study which has identified residential areas which do not meet the accessibility standard for chidren's play areas and informal open space within a safe walking distance from each home. It continues:
"Many areas of the Borough contain very low density housing with large gardens. These areas were considered to have sufficient private open space and general mobility to be excluded from this accessibility study."
A deficiency in accessibility was, however, identified at the Boyn Hill area within which Boyn Grove is situated.
The Grounds of Challenge.
27. An essential point underlying the Claimant's submissions was the contention by the Claimant that the developments proposed comprised substantial houses with large gardens, which together with a gated private access drive, would provide for all the reasonable recreational needs of the children of the residents who would occupy the new houses. Moreover, the development was not merely not in an area of deficiency in public open space or children's play space, it was very close to the large National Trust property known as Maidenhead Thicket which provided ample opportunity for informal recreation. Accordingly, it was argued by the Claimant at the Inquiry that on-site provision of a children's play area was simply unnecessary for the development residents; therefore the site was not an appropriate location for the provision of a children's play area or LAP as Policy R5 termed it.
28. A second important point for the Claimant was that the Council's concern, as the Claimant saw it and which the Claimant had rejected as not justified by policy or by the circumstances of this site, was to obtain money for remedying an open space deficiency nearby. However, the Claimant's position was that Policies H10, R4 and R5 were not directed to making provision on site for off-site residents and that money for that purpose should not be sought where there was no need for provision on site and no site identified close enough to benefit the site's residents. The financial offer was made by the Claimant in case the Council succeeded in showing that the policy did cover non-residents and although Boyn Grove was too far away to be related to this development, in the unilateral undertaking offered, the money could have been used to support play provision at other possible nearer locations.
29. The third essential point was that the Claimant says that at the Inquiry, the debate between the Claimant and Council revolved around whether the financial contribution for off-site provision for non-residents could be required, and that there was no debate about the Claimant's position that the nature and the location of the development was such that on-site provision for residents of the development was inappropriate.
30. With that introduction I turn to deal with the first group of Mr. Griffiths' submissions in the way in which I have grouped and summarised the many and varied points which he raised. I hope in so doing that I am not doing injustice to his submissions.
Interpretation of the Development Plan and Ignoring of Material Considerations.
31. The first point made by Mr. Griffiths QC was that there was no universal requirement in the policies for the provision of play space; it was only required "in appropriate locations" or "where appropriate"; R5 and H10 of the Local Plan which interpreted Policy R5 of the Structure Plan. That limitation on the requirement to provide play space was supported by the explanatory text which referred to the need for flexible application of such standards. Here, the nature of the development, the limited number of 4 to 6 year olds that would be produced from between 5 and 6 dwellings, the nearness of Maidenhead Thicket and the absence of a local open space deficiency were factors which, in effect, says Mr. Griffiths, were ignored in the Inspector's approach.
32. I do not consider that to be justified. It is, of course, important at the outset to recall that it is for the decision maker to interpret the Development Plan; if the interpretation is one which the Development Plan reasonably bears, it is not open to the Court to substitute its own view; Reg. -v- Derbyshire C.C. ex parte Woods  JPL 958, a decision of the Court of Appeal. Even more so are the application of a phrase such as "where appropriate" to a particular set of circumstances, and the assessment of the appropriate degree of flexibility to be allowed in the application of policy, matters for the decision maker.
33. The Inspector was clearly entitled to conclude, and the Claimant does not take issue with this, that Policy R5 is directed to the provision of play space on-site for the needs of the residents of that development. Indeed, the supporting text to R5 treats the provision for children of play space where family accommodation is developed, as here, as the first priority.
34. In paragraphs 14 and 19 of the Decision Letter, the Inspector considered the gardens and the private drive, Maidenhead Thicket and the absence of local open space deficiency. He assessed the role and value of those factors against the role and value which a LAP would have for particular play activities, in paragraphs 15 and 19 of the Decision Letter. He concluded that those facilities would not meet all of the needs which a LAP would meet. In its absence therefore, a feature of a residential development required by policy would be missing. The basis for the Claimant's submission that a LAP would be inappropriate in this location was that all the residents' needs would be adequately catered for without it. The Inspector rejected that starting point and hence the argument that the site was an inappropriate location for a LAP.
35. The Inspector's comment in the second sentence of paragraph 14 of the Decision Letter which states: "there is nothing to suggest that an absence of deficiency should be equated with rendering a development site an inappropriate location for a Local Area of Play", was criticised as reversing the test in the policy, from a requirement for the provision of a LAP in an appropriate location, to an absence of requirement for a LAP only in inappropriate locations. I do not agree that this sentence involves any misinterpretation of policy; the Inspector is simply saying that the policy does not treat the absence of deficiency as affecting the appropriateness of the provision by a developer of what a development needs.
36. Paragraph 3.2.18 of the Local Plan was explicitly considered. The Inspector's comment in the third sentence of paragraph 14 of the Decision Letter that whilst a sufficiency of informal open space adjacent to a development may diminish the quantity of on-site provision required "but does not suggest that a complete absence of such provision would be countenanced" is again fair and reasonable in the light of paragraph 3.2.18 of the Local Plan read as a whole, including the last sentence. It certainly discloses no error of law.
37. In essence, the Inspector simply concluded in relation to the LAP that the other forms of recreational facility available on-site and nearby did not alter the policy point that the proposed development was for family dwellings which would benefit from a LAP and the benefit of an LAP would not be met by the other facilities relied on by the Claimant. That is the short point relating to appropriateness which underlies the Inspector's conclusions.
38. The second group of points made by Mr. Griffiths, for the Claimant under this head, related to a further set of factors which he said had been ignored. These were:
(1) the position of the Council which was not to require on-site provision;
(2) the willingness of the Claimant to fund off-site provision related to the development (though no site had been identified by the Council);
(3) the absence of any open space strategy as envisaged by the Local Plan; and
(4) previous decisions by the Council showing how a more flexible approach had been adopted in the past.
I take these in turn.
39. I shall have to consider the position of the Council at greater length when dealing with the question of natural justice. However, for present purposes the position of the Council was unquestionably considered. Insofar as the Council's position was, as Mr. Mould for the Defendant submitted, that the Development Plan required provision of a LAP on-site, it was dealt with when the Inspector considered the Development Plan. Insofar as the Council's position was that no underlying on-site provision was required, but that a financial contribution was required instead, the Inspector discussed the interpretation of the Development Plan and then dealt with the financial contribution. He does not explicitly identify the Council's position in relation to on-site provision but insofar as it was supportive of the Claimant, I shall deal with it under the natural justice heading. The Inspector rejected the Council's approach to financial contributions as being both inconsistent with the requirements of the Development Plan (paragraph 25 of the Decision Letter) and inconsistent with the tests for the relevance of planning obligations to be found in Circular 1/97.
40. The complaint that the Claimant's willingness to fund off-site provision was ignored, relates to the form of unilateral undertaking made under s.106 of the Town and Country Planning Act 1990. The undertaking to make £20,000 available to the Council did not confine the Council to spending that money on facilities at Boyn Grove, but by clause 4 provided that payment was "to be used for the provision of play space facilities in accordance with the provisions of Policy R5 ....". However, Mr. Griffiths submits that the Inspector only considered the application of such funds at Boyn Grove, that being the place identified by the Council where an open space deficiency could most usefully be eased by such funds. My attention has been drawn, as was the Inspector's according to paragraph 42 of the witness statement of Mr. Carter, the Claimant's planning witness, to the proposals for development on other sites nearby. However, the reference in Mr. Carter's proof of evidence to such sites is rather limited: on page 8 those sites are simply referred to as part of the planning history locally and in paragraph 6.35, the last sentence refers to a reduction in the financial contribution if development were to take place nearby; paragraph 6.38 adds nothing. The plain thinking there is that the justification for payment of £20,000 is reduced because others should make a contribution, rather than that the Claimant's payment of £20,000 could be directed on to those sites. Recognising the way it was actually put by Mr. Carter at the Inquiry there was no need for the Inspector to address it further. In any event such an offer would not address the Inspector's real point which was that provision on site was what policy required. Further, in order to examine the significance to be attached as a material consideration to such a unilateral undertaking, the Inspector was entitled to examine where such funds were likely to be spent; this he did and concluded that the specific location which had led the Council to seek a financial contribution was too distant for it to be fairly related to the proposed development which he was considering.
41. The absence of an open space strategy is not referred to as such by the Inspector, but there is no basis for supposing the absence of such a strategy to have been a significant part of the Claimant's case so as to call for comment by the Inspector.
42. The previous decisions of the Council were considered by the Inspector in paragraphs 16, 17 and 18 of the Decision Letter but only two such decisions are specifically dealt with. In three other decisions the issue of children's play space is not dealt with at all (Bath Road, Sunningdale and Broomhall Lane) and the Inspector was entitled to regard them as of no assistance in his task. He was entitled to distinguish Ross Road on the basis upon which he did. The only real point is that whilst he could legitimately distinguish Willow Drive from the appeal site on the basis that its location in relation to access by non-residents was a "red herring" since policy only catered for on-site needs, he did not deal with the point of similarity, namely, that Willow Drive was not seen by the Council as an appropriate location for a LAP because the development there involved a small number of large houses and large plots. This is a minor blemish rather than a legal flaw; the Inspector effectively deals with the point, so far as relevant to the appeal site, in his conclusions on the appropriateness of this site for a LAP and in his analysis of the relevant policies: whatever the Council may have thought inappropriate elsewhere, a LAP was appropriate here. It was not incumbent on the Inspector to distinguish in detail past decisions of the Council, given his duty to interpret and then apply the Development Plan accordingly. He has given adequate reasons for his conclusions on the main issue to which those past decisions were relevant.
43. I was also referred to a decision of an Inspector in relation to a proposal in Royal Ascot; the Inspector in the case before me was not referred to it. It is in any event plainly distinguishable on its terms rather than of assistance to the Claimant because it deals with the acceptibility of financial contributions where the required on-site provision of a LAP, and indeed more besides, had been made but the Council wanted the further open space provision required by the rather larger development involved there, to be on-site which was opposed by the developer who sought to make a financial contribution in lieu.
44. The third point was that the Inspector had failed to identify any harm flowing from non-compliance with the Development Plan. However, s.54A requires decisions to be made in accordance with the Development Plan unless material considerations indicate otherwise; none did. Moreover, the harm is apparent; this development would lack the necessary play facility.
45. The reasoning of the Inspector affects his conclusion on over-development but I do not consider that the Inspector's approach to that issue is irrational or involves errors of law or inadequate reasoning.
46. It was submitted by Mr. Griffiths that the Inspector ignored the possibility of on-site provision being made for a LAP. But no such possibility was put to the Inspector; indeed the suggestion from the Council's Leisure Services in its memo of 7th March 2000 was that an insistence on on-site provision of a LAP could lead to the loss of one house and hence the Council looked for off-site provision. Insofar as there is anything in this point it arises under the heading of natural justice or the overall weighing of all material circumstances. Suffice it to say at present that had the Inspector been told that it was physically possible to provide a LAP on site and to keep the same number of houses with satisfactory layouts, and had that then been demonstrated to him, he would have been reinforced in his decision to dismiss the appeals so far as they were based on layouts without a LAP. It is uncertain to what extent if at all, late in a short Inquiry, an Inspector dealing with a full application would have been prepared to accept substituted layouts which themselves might have required careful consideration and potentially consultation with residents in order for any further implications to be fully examined.
47. Finally, under this head for good measure Mr. Griffiths submitted that all the above factors told of the irrationality of the Inspector's decision. I have dealt with those factors above and it is plain that the decision cannot be stigmatised as irrational; nor was the reasoning legally inadequate; quite the reverse - it is a careful, thorough and intelligible decision, dealing with the substantial points raised.
Breach of Natural Justice.
48. The Claimant contends that just as it was its case that no on-site provision of a LAP was necessary, so too that was the Council's position. The Council wanted funds in order to deal with an off-site deficiency for the benefit of residents in the area of deficiency. The debate at the Inquiry between the Council and the Claimant was therefore over whether such off-site provision could be required as a matter of policy and whether such provision fairly related to the development in question. Mr. Carter's evidence to this court in his witness statement was that had he known that the Inspector would find that Policy R5 required on-site provision for the benefit of residents on-site, he would have sought to place before the Inspector plans showing how a LAP could be accommodated without other disadvantage to the layouts. He produced to the court the sort of plan which he said he would have submitted and he would have provided evidence showing how little value such a LAP was for the residents. He said that once the Inspector agreed with the Claimant's position on the absence of need to cater on this site for non-residents, the Inspector in fairness, should have simply rejected the Council's case and not found against the Claimant on the ground that on-site provision was required, without telling the Claimant that that was what he was minded to do. Mr. Carter says that he was completely astonished to find the Inspector taking the approach which he did; the examination at the Inquiry of on-site provision had only been in the context of examining the suitability of the site for use by non-residents as well as residents.
49. Mr. Mould, for the Defendant, did not accept the way in which Mr. Carter characterised either his own stance or the Council's stance at the Inquiry. Mr. Mould pointed to Mr. Carter's proof of evidence at the Inquiry in which between paragraphs 6.15 and 6.32 he considers open space provision on-site. Whilst paragraph 6.15 starts by referring to the indication in internal consultations within the Council (this is a reference to the memorandum of 7th March 2000 already referred to), that the Council required a contribution for play space at Boyn Hill, those paragraphs conclude by referring to the development's ability to provide for the "secure recreation needs of the children it generates" through the rear garden areas and through the proximity of Maidenhead Thicket which would lead to a high standard of provision for its residents. Additionally, orally at the Inquiry, Mr. Carter referred, as the Inspector recognises, to the role which the gated private access drive could play but only for residents.
50. The Council's evidence at the Inquiry, presented by a consultant, Mr. Smith, states at paragraph 5.1 under the heading of key issues:
"Furthermore a Local Area for Play for small children has not been provided as required by Policy R5."
This is further analysed; in paragraph 6.1, after referring to R5, Mr. Smith points out that: "the appeal schemes include no such provision and therefore do not accord with the Development Plan". Mr Smith continues in paragraph 6.2, dealing with a deficiency of children's play facilities in this part of Maidenhead, that the requirements for a LAP on-site which would not be equipped, would not alleviate the deficiency and would only be available to a small group of people. He states that the absence of a LAP leads him to the conclusion that the schemes represent over-development and suggests in paragraph 6.4;
"One practical solution would be for a contribution towards the off-site provision of an equipped children's play area as suggested by the Council's officers. In this instance I consider that paragraph 3.2.17 of the Local Plan is applicable since this is an example where there is adequate existing provisions in terms of quantity but there is scope for improving facilities. One possible site which has identified is in Boyn Grove which is the closest site to the development that the Borough owns. A lump sum in the region of £20,000 would secure a suitable standard of replacement play equipment on site. In my opinion I believe that this request would satisfy the five tests contained in Circular 1/97."
In paragraph 6.5 Mr. Smith stated:
"The appellants have contended that the requirement for on-site provision of a LAP is not required because of the adjoining Public Open Space and high standards of amenity on site. Turning to the first point, I consider that an LAP differs from the adjoining Public Open Space for several reasons. Firstly, it would provide a small, low-key games area suitable for 4 - 6 year olds in very close proximity to the nearest house (5m) whereas the adjoining Public Open Space is a large rambling area which is accessible via a public footpath. In my opinion an LAP has increase security for its potential users. Secondly, I do not consider that the use of rear gardens to meet this deficit can be regarded as an alternative provision. This is due to the fact that a LAP would be accessible to all parents and children in the immediate surroundings rather than placing the emphasis solely on back gardens."
Mr. Mould also referred to the memorandum of 7th March 2000, which is the precursor to the evidence of Mr. Smith, and which suggests whilst a LAP is required on site, that requirement can be waived in favour of a lump sum which would be used to improve existing provision. Pinkney's Green Ward, in which Boyn Grove is situated, was referred to as an area which could benefit. That benefit was contrasted with the limited gain from on-site provision in view of the proximity of Maidenhead Thicket. Hence the practical solution envisaged was financial provision. The memorandum also said that on-site provision of a LAP would probably involve the loss of one of the houses. Mr. Mould also referred me to the passage in the Costs Decision Letter which I have already cited.
51. Mr. Griffiths said that that letter was not weighty and, in any event, the Council's discussion of requirements on-site was wholly or mainly in the context of a provision for residents both on and off-site and because this site was plainly not suitable for off-site residents, the Council preferred a contribution financially to off-site provision in an area of deficiency.
52. The relevant law, though not cited to me, is to be found in cases such as Fairmount Investment Ltd. -v- The Secretary of State for the Environment  1 WLR 1255 at p.1266; and H. Sabey & Co. Ltd. -v- The Secretary of State for the Environment  1 All E.R. 586. Did the Claimant have a "fair crack of the whip?" Was the Claimant deprived of an opportunity to present material by an approach on the part of the Inspector which he did not and could not reasonably have anticipated? Or is he trying to improve his case subsequently, having been substantially aware of, or alerted to, the key issues at the Inquiry? Did he simply fail to realise that he might lose on an aspect which was fairly and squarely at issue and hence fail to put forward his fall-back case? Those are the sort of questions which can be used to guide a conclusion as to whether the manner in which a particular issue was dealt with at an Inquiry involved a breach of natural justice and was unfair.
53. It is always difficult for parties to an Inquiry to know how far it is necessary to go in order to deal with the contingent ramifications of the process yet to be undertaken by an Inspector of analysing the arguments, accepting some in whole or in part and rejecting others. It is obviously helpful if an Inspector does flag up issues which the parties do not appear to have fully appreciated or explored. The point at which a failure to do so, amounts to a breach of the rules of natural justice and becomes unfair, is a question of degree, there being no general requirement for an inspector to reveal any provisional thinking. It involves a judgment being made as to what is fair or unfair in a particular case.
54. I accept that, notwithstanding a certain hyperbole in Mr. Carter's manner of expression, he did not consider on-site provision for residents alone to be the issue with the Council and that he was taken aback by the approach of the Inspector. I also accept that the prime focus of the Council's case was its desire for a financial contribution towards off-site provision so as to remedy the deficiency in the area, rather than to require on-site provision for the residents of the development. I accept that the Council principally discussed on-site provision in the context of provision for both on and off-site residents as paragraph 6.5 suggests.
55. However I do not accept that that is the complete picture of the Council's case. The Council's Memorandum and paragraphs 5.1 and 6.1. of Mr. Smith's proof of evidence raise the question of what the Local Plan actually required by way of on-site provision, and provide an interpretation of the Plan, consistent with the Inspector's conclusions, as part of its justification for its preferred position: that provision of children's play space would be better if funded by the developer in an area of deficiency. I also give some weight to the Costs Decision Letter as a reflection of what was said at the Inquiry and there is no evidence that what was said in relation to costs caused any of the forensic reaction which might have been expected had it marked a change of position.
56. Mr. Carter, in his witness statement for the Claimant, says at paragraph 21: "At the heart of this thinking must have been an acceptance [by the Council] that the residents of the Appeal site development would have no need for a LAP in this case or the absence of a LAP for the residents would not be a reason for refusal ...." In paragraph 26 Mr. Carter continues: "However, no party at the Inquiry had ever suggested that a LAP should be provided for the benefits of the residents of the development only. Moreover, the Inspector never raised this issue at any stage during the course of the Inquiry. The Claimant was therefore not given any opportunity to deal with this completely surprising suggestion which had not been advanced by any party at the Inquiry".
57. Nonetheless there is no direct evidence of the Council expressly agreeing that the site was inappropriate for a LAP for residents only and paragraph 21 of Mr. Carter's statement is more by way of an inference which he drew.
58. I consider that the Claimant was under a certain degree of misapprehension as to the Council's position in relation to the appropriateness of this site for a LAP for residents only. This misapprehension may have arisen because the Council's position was neither fully articulated nor explored. This in turn may have been because the Council regarded it as obvious that, were it to fail in its primary contention that the £20,000 contribution to off-site facilities was justified under Policy R5, it wanted on-site provision even though that would only benefit the residents of the development, rather than foregoing any LAP at all.
59. This aspect of the Council's position may not have been explored or understood because, as Mr. Carter's witness statement makes clear, the Claimant regarded it as obvious that if it succeeded in its argument that the financial contribution was unjustified, and on-site provision would be of no value for non-residents, this would be regarded as an inappropriate site for a LAP for residents of the development alone in view of the other facilities. But that was not a position agreed with the Council.
60. The Inspector was entitled on the material before him to conclude that Policy R5 required on-site provision for on-site residents alone. He was also entitled to reject the Council's argument that a financial contribution was justified, as the Claimant urged, and he was entitled to conclude that this was an appropriate location for on-site provision for residents only, rejecting the Claimant's contrary argument.
61. However, the question is: in the rather murky light of the Council's position at the Inquiry as to whether this site was an appropriate location for a LAP if in reality it were to be used by residents alone, did the Claimant realise or could it have reasonably anticipated that the Inspector would accept its financial contribution argument, regard the site as inappropriate for a LAP for non-residents, and still require a LAP on-site for the residents' use given the other facilities? If not, was the Claimant deprived of an opportunity effectively to put its case on this aspect, without the issue being specifically raised by the Council or the Inspector?
62. I have not found this easy to resolve. Plainly the Claimant did not realise what the Council's position was on that aspect of the case and did not realise either that the Inspector might reach the conclusion which he did as to the appropriateness of the site for a LAP which would, in reality, be used by residents of the development alone. I have also taken into account that there has been no evidence contradicting that of Mr. Carter from the Inspector or the Second Defendant.
63. It can be said that an appellant at an Inquiry should be alert to the potential rejection of its arguments by an Inspector; but that is not so easy to say fairly when the Council has not made clear its opposition to that particular argument and an Inspector does not seek to clarify the position.
64. On balance I have concluded that the Council's position, as to the appropriateness of the site for a LAP which would be used by residents only, were its prime contention to fail, was insufficiently explicit or articulated, reasonably to alert the Claimant to the need to deal with the ability of the site to provide for such a LAP with satisfactory layouts. No question was put by the Inspector alerting the Claimant to the possible conclusion that the real answer to the debate between the Claimant and the Council, was on-site provision for residents alone in the event that he rejected the Council's primary position and accepted the inappropriateness of the site for provision of a LAP which non-residents might use.
65. Whilst an Inspector can reasonably expect parties at an Inquiry to explore and clarify the position of their opponents, if an Inspector is to take a line which has not been explored, perhaps because a party has been under a misapprehension as to the true position of its opponents, as in my view happened here, fairness means that an Inspector give the party an opportunity to deal with it. He need not do so where the party ought reasonably to have been aware on the material and arguments presented at the Inquiry that a particular point could not be ignored or that a particular aspect needed to be addressed. Here, whilst I am satisfied that the Inspector was unaware that he might be being unfair because he may not have appreciated the misapprehension under which the Claimant was labouring, I am satisfied on balance that the Claimant ought, in fairness, to have been given the opportunity to address the implications of the Inspector concluding in the way he did as to the appropriateness of the site for a LAP. I do not consider that the circumstances were such that the Claimant ought reasonably to have been alerted to the need to address that issue, from what was raised by the Council or the Inspector.
66. Having said that, I am far from satisfied that any substantive injustice was done. If the Inspector had asked for the Claimant's response to a requirement for a LAP on-site, its response would have been to seek to put in one or more fresh layouts. These might well have amounted to a fresh set of planning applications because the applications being considered by the Inspector were full applications. It is likely that the issue would have arisen towards the end of a short Inquiry. If the Inspector had been unwilling to accept such new layouts, it is inevitable that he would have dismissed the appeals, reinforced in his intention by the evidence that a LAP could be provided. The Inspector was clearly concerned to examine the detail of layouts and may well have wished to give the Council and perhaps local residents the chance to consider the new layouts and make their views upon them known to him. He might have adjourned the Inquiry. The co-operation of the Council in relation to new layout plans cannot be taken for granted notwithstanding that it had been co-operative over the consideration of a new window plan and a shortened timescale for bringing the six house appeals to Inquiry. The court is not in a position to judge whether the one layout plan which it has seen has any other ramifications. However, ultimately, having concluded that the Claimant had been unfairly deprived of the opportunity to deal with this point, it would involve too much speculation on the court's part as to the way in which the Council and the Inspector would have approached its new evidence, for the court to hold that the result of the submission of such new evidence would inevitably have led to the dismissal of the appeals.
The Balancing Exercise.
67. It is said by the Claimant that no overall weighing of the advantages of the appeal schemes against the disadvantage of there being no on-site LAP, in particular by reference to PPG3 and density of development, was undertaken by the Inspector. PPG3 encourages greater densities in development though of course it also seeks high standards of development, layout, character and open space. Both Mr. Griffiths and Mr. Mould cited various extracts from PPG3 in support of their submissions.
57. The Inspector plainly considers PPG3 in relation to density in paragraph 39 of his Decision Letter but he recognises that simple densities do not necessarily provide all the answers to the various facets of layout which contribute to the sense of over-development, even though the density proposed on this site is very much lower than government advocates as a very general proposition. But PPG3 is qualified and it contains other relevant considerations than density. Those aspects were dealt with by the Inspector in the context of the need to avoid under-development. I do not consider that that aspect was overlooked in the weighing exercise.
68. The other aspect which was said not to have been weighed in the balance was the disadvantage or the very limited advantage of requiring the provision on-site of a LAP in this instance. The Inspector concluded in the circumstances that the benefits of a LAP made this an appropriate place for its provision. No specific disadvantage was raised by the Claimant; the Claimant's asserted lack of real benefit in a LAP on-site was obviously rejected and there was no residual point to be the subject matter of the weighing exercise. If it had been the case for the Claimant that the provision of a LAP on-site was not practicable without the loss of accommodation, that would have been a significant factor which is nowhere brought into account. However, whilst that was the apparent assumption of the Council (see the Memorandum of 7th March 2000) that was not the genesis of the Claimant's thinking, which was that a LAP was simply unnecessary rather than specifically disadvantageous. Indeed, the Claimant's contention now is that a LAP can be provided without difficulty. In those circumstances I do not consider that the weighing exercise omitted a significant material consideration, or if it did, that it could possibly lead to a different result on the Claimant's case. I do not consider that the Inspector can be criticised for failing to carry out a weighing exercise on what, on the Claimant's case, would have been a false premise.
69. However, the application to quash the substantive Decision Letter is allowed on the natural justice ground.
70. I have considered in the light of that conclusion whether there is a basis for quashing the Costs Decision Letter. I give permission to move for judicial review. It was agreed that in the event of the decision being quashed, the Costs Decision Letter should also be quashed. Mr. Griffiths' free-standing ground of challenge only arose in the event of the Decision Letter being upheld. Accordingly, the Costs Decision Letter is also quashed.