England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		48/49 Chancery Lane London, WC2A 1JR
		23 August 2002

1. MR GEORGE BARTLETT QC: In this application under section 288 of the Town and Country Planning Act 1990 the claimant seeks to have quashed a decision of the first defendant dismissing an appeal against a refusal of planning permission by the second defendant. The planning application sought permission for development consisting of a non-food retail park (Use Class A1), including access, parking, landscaping and associated highway works on a 10 ha site ("the appeal site") at Harrington works at the western end of the MetroCentre shopping complex in Gateshead. On 23 February 2000 planning permission had been granted on appeal for Class A1 retail development on 3.94 ha of the appeal site ("the Church Commissioners site"). An inspector held an inquiry into the appeal on the appeal site over 4 days in January 2001 and, in his report of 16 February 2001 recommended that planning permission should be granted. The Secretary of State requested from the inspector two addenda to her report, and the inspector submitted these on 19 March 2001 and 17 July 2001. In his decision of 22 November 2001 the Secretary of State rejected the inspector's recommendation that planning permission should be granted. He did so because he considered that the inspector had misinterpreted part of the relevant statutory planning policy and because he concluded that the sequential approach to site selection required by central government policy had not been satisfactorily carried out and that there were alternative suitable sequentially preferable sites available. He did not refer in his decision letter to his earlier decision on the Church Commissioners site.
2. The challenge to the Secretary of State's decision is made on three principal grounds. The first relates to the post-inquiry procedures in the course of which the Secretary of State received the two addenda to the inspector's report. It is said that these procedures were unfair. Secondly it is said that he misinterpreted his own policy in relation to the sequential approach. The third principal ground relates to the Secretary of State's conclusion that the appeal scheme failed to accord with the sequential approach. Although originally couched in terms of a perversity contention, this third ground resolved itself principally into a reasons challenge, with an additional argument that certain material considerations (one of which was the recent decision in the Church Commissioners appeal) had been left out of account.

Planning Policy

3. The statutory development plan that the inspector and the Secretary of State were required to take into account was the Gateshead Unitary Development Plan, which had been adopted in November 1998. Policy S2 of the UDP identifies the MetroCentre as an established Regional Shopping Centre and says that support will be given to the continuation of this role where it does not undermine the vitality and viability of existing centres and where it maximises the opportunity to use means of transport other than the car. Policy S3 provides that, within the MetroCentre boundary, the development of retailing and appropriate employment uses will be permitted where it can be demonstrated that they accord with the development plan strategy; do not undermine the vitality and viability of existing centres; contribute towards achieving improved accessibility by public transport, cycling and walking; and further a reduction in dependence on the private car.
4. Paragraph 7.13 of the UDP is the provision that gave rise to the disagreement between the inspector and the Secretary of State. It provides:

"All proposals for retail development over 2,500 square metres gross floorspace will need to be supported by evidence on these matters in the form of impact assessments, including consideration of the cumulative effects of recently completed and proposed developments. It should also be demonstrated that a sequential approach has been adopted to site selection, whereby priority has been given to locations within or on the edge of town centres. If no suitable sites are available in such locations, development within the Metro Centre boundary is the preferred location for new retail development within the Borough."

5. In paragraph 71 of her report the inspector, having referred to this provision of the UDP, said:

"In my view this supporting text relating to the sequential test is secondary to policy as the Plan identifies the MetroCentre as the preferred retail location within the Borough."

6. The inspector then concluded:

"74. In policy terms, therefore, retail development is appropriate on this site and the appeal site is a preferred location for retail warehouse development. The proposals are therefore in accordance with UDP policy."

7. The Secretary of State disagreed with this. He said:

"14. The Secretary of State does not agree with the Inspector's assertion (IR71) that paragraph 7.13 relating to the sequential test is secondary to policy as the Plan identifies the Metro Centre as the preferred retail location within the Borough. Policy S2 of the UDP describes the Metro Centre as 'an established regional shopping centre', but does not refer to it as the preferred retail location. Policy S3 sets out a series of tests which must be fulfilled before certain types of planning application at the Metro Centre will be permitted. There is nothing in the policies themselves, nor in the reasoned justification, to indicate that the Metro Centre is the preferred retail location. Furthermore, the UDP does not define the Metro Centre as a city, town, district or local centre. The Secretary of State therefore considers that in terms of the sequence of preferences set out in paragraph 1.11 of PPG6, it is the least preferable location for new retail development."

8. The claimant does not seek to argue that the Secretary of State erred in disagreeing with the inspector on her conclusion that paragraph 7.13 was secondary to policy and that UDP policy identified the MetroCentre as the preferred retail location for the Borough.
9. PPG6 (Planning Policy Guidance Note 6, Town Centres and Retail Developments, issued in June 1996) sets out the Secretary of State's policy on the sequential approach. It says:

"1.11 Adopting a sequential approach means that first preference should be for town centre sites, where suitable sites or buildings suitable for conversion are available, followed by edge-of-centre sites, district and local centres and only then out-of-centre sites in locations that are accessible by a choice of means of transport.

1.12 The Government recognises that the approach requires flexibility and realism from local planning authorities, developers and retailers. Developers and retailers will need to be more flexible about the format, design and scale of the development, and the amount of car parking, tailing these to fit the local circumstances. Local planning authorities should be sensitive to the needs of retailers and other town centre businesses and identify, in consultation with the private sector, sites that are suitable, viable for the proposed use and likely to become available within a reasonable period of time."

10. Paragraph 3.2 of PPG6 states that the sequential approach applies both to comparison shopping and to convenience shopping. Paragraph 3.3 recognises that some types of retailing, such as large stores selling bulky goods, may not be able to find suitable sites either in or on the edge of town centres. In such cases, it says, the local planning authority should seek to ensure that such developments are located where they will be easily accessible by a choice of means of transport.
11. In 2000 the House of Commons Select Committee on the Environment, Transport and Regional affairs produced its Second Report - Environmental Impact of Supermarket Competition. In May 2000 the Department of the Environment, Transport and the Regions published the Government's Response to this report. Certain paragraphs in the Response, which are relevant to the claimant's second ground of challenge, need to be noted:

"5. The Government agrees that there should be a consistent interpretation of the sequential test. Paragraph

1.12 of PPG6 states clearly that the Government expects "developers and retailers will need to be more flexible about the format, design and scale of the development, and the amount of car parking, tailoring these to fit the local circumstances". The Government has a clear policy that new retail investment should be used to strengthen existing centres and expects this paragraph of PPG6 to be read in that light.

6. Research recently published by the National Retail Planning Forum, and part funded by the Department of the Environment, Transport and the Regions, considered how the sequential approach is being applied in practice and its effects on retail development. This showed an inconsistency in the application of the sequential approach and contrasts two approaches taken:

i. the format-driven approach, where the developer has a preferred format, which, in their view, does not fit into town centres and should be exempted from the policy; or

ii. the "class of goods" approach, where the key question is whether there is any reason why such goods cannot be sold from town centres."

7. The Government's policy - as stated in PPG6 - is to take the latter approach, as most goods can be sold from town centres. PPG6 does not propose exceptions to the application of the sequential approach.

8. The Select Committee has suggested that there is a need to clarify how the policy should apply to large- format developments. The Government considers that PPG6 is clear - it expects developers to demonstrate flexibility. It recognises that the need to demonstrate flexibility will have consequences for retailers who insist on the need for very large formats."

12. The Secretary of State, in a passage of his decision letter that I will set out in due course, referred to PPG6 and the Second Report as stating that it was Government policy to favour the "class of goods" approach. The claimant's contention is that PPG6 does not favour the "class of goods" approach and that the Second Report applies only to food retailing. The argument that, accordingly, the Secretary of State misapplied his own policy forms the second ground of challenge.

The Church Commissioners appeal

13. The decision of the Secretary of State granting planning permission for non-food retail units on the Church Commissioners site followed a public inquiry in November 1999 and a recommendation of the inspector who held it that permission should be granted. The inspector had concluded that the question of need had been determined by the UDP and did not have to be demonstrated. On the sequential test, he had had put before him a detailed sequential approach analysis. Referring to this, at paragraph 45 of his report, he said:

"Some 60 sites were investigated, and a further three once consultation responses on the planning application had been received. The Church Commissioners' conclusion that there are no suitable out-of-town or edge-of- town sites is accepted by GMBC. I have found no reason to take a different view. The UDP states that land within the MetroCentre boundary is the preferred location for retail warehouse development."

14. The conclusion that there were no sequentially preferable sites available was accepted by the Secretary of State. At paragraph 2 of his decision letter he said that he agreed with all the inspector's conclusions, except the conclusion that need did not have to be addressed. On that point he said:

"The Secretary of State therefore considers that your client's proposals should be required to demonstrate need. He agrees with the Inspector (IR48) that, in this case, evidence was submitted to the inquiry by both your client and Gateshead MBC, which satisfactorily demonstrates that there is a need for the development in terms of retail capacity (in terms of the likely growth in retail expenditure); retailer demand; employment generation; development of a brownfield site; facilitating the development of adjoining land and improving the opportunities for access by means other than the private car."

Post-inquiry procedures

15. In the present case the claimant and the council were in agreement at the inquiry that need for the development had been demonstrated. The inspector recorded the claimant's case on this as follows:

"36. With regard to the quantitative assessment, the Council's comments are based on the KS Revised Retail Impact Assessment of April 1999, rather than the GL Hearn study of November 2000. The Council therefore considers that there would be sufficient expenditure by 2006 to support all the 1999 commitments together with the appeal proposals. Whilst much of the KS methodology is accepted it significantly underestimated the capacity for additional comparison goods retailing because it did not take into account the capacity for additional floorspace which already existed in 1999 by its making allowance for an increase in the turnover of existing floorspace. On the GL Hearn analysis there would be sufficient capacity for the appeal scheme and other commitments by 2003 and there would still be a surplus of £123.10m to support additional development proposals or growth in the turnover of existing retailers. Indeed the level of growth is such that sufficient capacity to support the appeal scheme exists by the end of 2001. The need for the development proposed is therefore immediate. The Council maintains that the need will not arise until 2006 (GMBC8) by which time all the current commitments, including the appeal proposals, could be comfortably supported. Indeed, the Council's witness accepts that by the time this appeal decision is issued the operational need will have arisen and the only dispute is where that need will be met."

16. In the light of this, under the heading "Need and impact", the inspector concluded as follows:

"75. The need for the proposed development is not disputed. If those needs are met on the appeal site then the site specific, qualitative benefits relating to the redevelopment of a contaminated brownfield site and the improvement of public transport, footpath and cycle links to the MetroCentre would be realised. Similarly, the Council does not argue matters of retail impact as it is agreed that the likely impact of the appeal proposals would not give rise to any unacceptably adverse effect on existing centres. (24, 25, 37, 33,38)."

17. The Secretary of State was not satisfied with the inspector's acceptance of the claimant's case on need. The decision letter said this:

"3. Having examined the Inspector's report, the Secretary of State was of the view that the Inspector had accepted without question (IR24 and 25) the agreement on the issues of need and impact of the development reached by your client and GMBC before the public inquiry began. There was no evidence that she had independently considered these matters, and her own conclusions on them are not recorded in the report (IR75).

4. Accordingly, the Government Office (GO) requested an addendum to the Inspector's report from the Planning Inspectorate by telephone. The addendum was received in the Government Office on 19 March 2001. However, it was considered unsatisfactory, as it only contained a brief resume of the events leading up to the agreement on need and impact, and the Inspector still did not offer a view on whether the agreement should be accepted.

5. Following discussions with the Planning Inspectorate, and further detailed examination of the Inspector's report and the evidence before the inquiry, the Secretary of State requested a second addendum to the report by means of his letter of 21 June 2001. The letter set out in detail, in paragraphs 1(a) and 1(b), all the matters on which he wished to receive a view from the Inspector."

18. The inspector submitted her second addendum on 17 July 2001. She said:

"6. Four retail impact assessments have been carried out by different consultants each taking a different approach to the assessment of need. The worst case postulated is that by 2006 expenditure growth will comfortably support all the identified commitments. A less cautious calculation suggest that by 2003 there would be a residual of £36.7M even when confining the analysis to the 20 minute catchment area. This residual rises to £71.0M by 2006. Expenditure growth therefore suggests that there is capacity for the proposed development in terms of retail need…

8. In terms of qualitative need the appeal site shares the advantages identified by the Secretary of State in smaller Gibside Way decision in relation to retailer demand, employment generation, development of a brownfield site, improving opportunities for access by means other than the private car. It also scores well in relation to access to low income areas and reducing the need to travel.

9. I conclude that the evidence before the inquiry satisfactorily demonstrates the existence of retail need."

19. At paragraph 17 of the decision letter the Secretary of State said that, for the reasons given in these paragraphs of the inspector's second addendum, he agreed with the inspector's conclusions that the evidence before the inquiry satisfactorily demonstrated the existence of retail need.
20. The letter of 21 June 2001 from GONE to the planning inspectorate requesting the second addendum was sent to the parties in letters dated 17 July 2001. It said that any representations the party might wish to make in respect of the matters in the letter of 21 June should be sent to GONE within 3 weeks. The council replied on 3 August 2001. On 6 August 2001 the claimant's planning consultants, G L Hearn, replied saying that they found it impossible to make any meaningful comment without knowledge of the contents of the inspector's report. They requested a copy of the report. GONE refused to release the inspector's report; and in a further letter of 16 August 2001 G L Hearn wrote in terms that effectively repeated their case on need at the inquiry.

First area of challenge: post-inquiry procedure

21. In its grounds of application the claimant said that the process adopted by the Secretary of State in reaching his decision was unfair and in breach of Article 6 of the European Convention on Human Rights in that he had failed to give the claimant a fair and public hearing and, through refusing to disclose the inspector's report and its addenda, had prevented the claimant from making any sensible or informed comment. In addition it was said that the Secretary of State had failed to comply with the requirements of rule 17(5) of the Town and Country Planning (Inquiries Procedure) Rules 2000.
22. The claimant sought disclosure of the correspondence and notes and documents that recorded or referred to telephone conversations between GONE and the Planning Inspectorate, and an order for disclosure was made. Particular reliance is placed by Mr Dove on correspondence and memoranda showing that at one stage GONE and the Planning Inspectorate had considered that a re-opening of the inquiry would be necessary.
23. Mr Dove's submission on the Town and Country Planning (Inquiries Procedure) Rules 2000 is that the Secretary of State failed to comply with the requirements of rule 17(5) in that he differed from the inspector on findings of fact, or alternatively that he took into account new evidence and matters of fact, and failed to re-open the inquiry or to afford the claimant the opportunity to make representations to him. At paragraphs 76 and 77 of her report the inspector had said:

"76. The list of sites which the Council now considers to be sequentially preferable (GMBC13) was only finalised during the course of the inquiry and only those on 'List 1' were seriously pursued. These could be considered to be sequentially preferable if they are able to perform the same or similar functions intended for the proposed development and within a reasonable timescale. A number of the sites suggested are not free from planning constraints and, unlike the appeal site, do not enjoy as favourable a UDP allocation as the appeal site. Only 3 of the List 1 sites are suitable for retail warehouse development (40, 49).

77. Furthermore, the sequential test has to have regard to the catchment area which is intended to be served. If it is accepted that about 80% of the trade draw comes from within a 20 minute drive time then List 1 sites B2 (South Shields), B3 (Whitley Bay), B6 (Consett), C4 (Shields Road, Newcastle), and most of the sites on List 2 cease to be contenders. Also sites which are in local or district centres, for example Consett B6, Killingworth B4, Cramlington C17 and Prudhoe C22, are not, in my view, capable of fulfilling the same function as the appeal proposals because, as paragraph 3.18 of PPG6 states, retail development should be in scale with the centre in which it is to be located. (48, 51)"

24. The Secretary of State, in a section of his decision letter that I will refer to in more detail later, noted in paragraph 27 that there were sites with planning permission for retail warehouses in Killingworth Town Centre (B4), Hermiston Retail Park (B6) and Shields Road District Centre (C4), and said that there was "no evidence that retail warehouse development of the scale already permitted on B4 and B6 would be out of scale with these centres." Later, in paragraph 29, he said that sites B4, B6 and C4 were suitable for retail warehousing use and could be made available in the short term. It is to these passages that, as I understand him, Mr Dove points as showing that the Secretary of State differed on findings of fact or alternative took into account new factual material. As a consequence of these and other conclusions the Secretary of State considered that there was no compelling need to provide the floorspace proposed.
25. Rule 17(5) applies where, after the close of the inquiry, the Secretary of State:

"(a) differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector; or

(b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy),

and is for that reason disposed to disagree with a recommendation made by the inspector …"

26. In my judgment, the matters on which Mr Dove seeks to rely for his contention that there has been a failure to comply with reg 17(5) of the Inquiries Procedure Rules are properly to be regarded as matters of planning judgement rather than of fact. The need to draw such a distinction in applying the requirements of the Rules was made clear in relation to the predecessor provisions, in Luke v Minister of Housing and Local Government [1968] 1 QB 172 (in particular at 191 D-E, per Lord Denning MR).
27. Whether a site is suitable for retail warehousing development or whether a retail warehousing development would be out of scale with the centre in which it is proposed are matters of planning judgement. They are conclusions that are derived from factual matters - the physical nature of the site and its surroundings, the amount of floorspace in the centre, and so forth - but they are not themselves findings of fact. There is moreover nothing to suggest that in reaching the conclusions that he did the Secretary of State took into account any evidence or facts that were not before the inspector. As far as the inspector's supplementary reports are concerned, these did not refer to any new evidence or matter of fact, nor in asking for them, was the Secretary of State doing any more than seeking conclusions from the inspector on factual maters that were already available to her and had been available to the parties at the inquiry. In any event it was not because of anything contained in the supplementary reports that the Secretary of State was disposed to disagree with the inspector's recommendation. The Secretary of State reached his conclusion that permission should be refused in spite of, not because of, the inspector's conclusions on retail need. Rule 17(5) was thus not engaged.
28. Apart from his specific reliance on the requirement of rule 17(5), Mr Dove puts his challenge to the Secretary of State's post-inquiry procedure on the more general grounds of fairness. He draws attention to paragraph 3(ii) of the Ministerial Code, which was among the documents disclosed. This states:

"In order to demonstrate even-handedness, and in the interests of natural justice, all evidence which is material to any decision which has been the subject of a planning inquiry, and which the decision taker ultimately takes into account, must be made available to all parties with an interest in the decision."

29. Mr Dove, as I have said, places particular reliance on the fact that, at one stage, GONE and the Planning Inspectorate considered that the inquiry would have to be re-opened. Letters of 18 April 2001 from Ms Burden of GONE to the Planning Inspectorate and 2 May 2001 from Mr David Rose of the Planning Inspectorate to Ms Burden acknowledged the appropriateness of re-opening the inquiry. However, it is clear from Ms Burden's letter that it was not in the interests of fairness to the claimant that a re-opened inquiry was seen to be appropriate. The letter said:

"At the moment we do not know whether the Secretary of State is disposed to disagree with the Inspector's recommendations, and we cannot reach such a conclusion until the studies have been properly considered. Reference back is usually only undertaken when there is new evidence. As the retail study and audit were before the Inspector at the inquiry, and the local planning authority had been aware of them for some time, they do not appear to constitute new evidence. Although the appellant and Gateshead Metropolitan Borough Council did not dispute the findings of the new retail study and audit, other parties made written representations on the appeal, and there is no evidence that they have been afforded the opportunity to consider whether they accept the agreement on need and impact. In the light of this, the most appropriate course of action appears to be re-opening the public inquiry specifically to consider the issues of need and impact."

30. Thus it was purely to give parties other than the claimant and the council the opportunity to deal with the agreement on need and impact that GONE considered that a re-opened inquiry was appropriate. The view that they took on this had nothing to do with any perception of fairness to the claimant. I can see nothing unfair in the procedure adopted by the Secretary of State. He was seeking additional conclusions on material that the claimant and the council had made available at the inquiry. There was no need for the claimant to be involved in that process at all. The opportunity that it was nevertheless given to make representations on need and impact and the fact that it was denied a sight of the inspector's report before doing so did not create any unfairness, in my view. The claimant was clearly no worse off than if it had not been given such an opportunity. Mr Dove makes clear that he is not suggesting that the Secretary of State had attempted to influence the inspector in any way. Indeed it is clear to me, having seen the correspondence and notes of discussion between DONE and the Planning Inspectorate, that the respective roles of the Department and the Inspectorate were properly observed.
31. It is clear, in my judgment, that the claimant has not been prejudiced in any way by the procedure adopted by the Secretary of State following the inquiry. The matter that the procedure was concerned with was the need for the development. Initially the Secretary of State was not satisfied that the inspector had sufficiently investigated the evidence in accepting that the development was needed. At the end of the procedure, however, having received two supplementary reports from the inspector, the Secretary of State was able to say that he agreed with the inspector that retail need had been satisfactorily demonstrated. This conclusion was wholly in the claimant's favour: its case was accepted. I cannot see in these circumstances how it can be said that the claimant has suffered any prejudice. It is not contended that in addressing retail need the post-inquiry proceedings spilled over into other issues on which the Secretary of State's conclusion were adverse to the claimant. In no respect have the claimant's interests been adversely affected by the procedure adopted by the Secretary of State. The requirement that a claimant must show substantial prejudice in a challenge based on the failure to comply with a procedural requirement is contained in section 288(1) and(5) of the 1990 Act. Insofar as the challenge is now made on wider grounds, the common law principle is the same. The court will not relieve a technical breach of natural justice: see R v Chief Constable of Thames Valley Police, ex p Cotton [1990] IRLR 344. Here there has in the event been no unfairness because the decision of the Secretary of State would not have been any more favourable to the claimant if he had dealt with the issue of need under some different procedure. The first ground of challenge accordingly fails.

Second area of challenge: misinterpretation of policy

32. Mr Dove's second ground of challenge asserts that the Secretary of State in his decision has misinterpreted his own policy on retail development. In paragraph 19 of the decision letter the Secretary of State said:

"19. National policy on this issue is set out in PPG6 and the Government's Response (May 2000) to the Second Report of the Environment, Transport and Regional Affairs Committee. Paragraph 1.12 of PPG6 states that the Government expects that 'developers and retailers will need to be more flexible about the format, design and scale of the development, and the amount of car parking, tailoring these to fit the local circumstances'. The Second Report emphasises that the Government has a clear policy that new retail investment should be used to strengthen existing centres and expects this paragraph of PPG6 to be read in that light. PPG6 is clear about the need for developers to demonstrate flexibility about the format of their developments. The Government's policy is to favour the 'class of goods', rather than the 'format driven' approach to the application of the sequential approach, where the key question is whether there is any reason why such goods cannot be sold from town centres."

33. Mr Dove says that PPG6 does not put forward a "class of goods" approach for the purpose of the application of the sequential test. He also says that the Government's Response to the Second Report of the Environment, Transport and Regional Affairs Committee concerned food retail policy and is irrelevant to comparison goods retailing. Accordingly, he says, the Secretary of State has erred in applying his policy on retail development as though it laid down the "class of goods" approach.
34. I cannot accept this argument. I have quoted earlier the relevant paragraphs from PPG6 and the Government's Response. While the Second Report of the Select Committee related to the environmental impact of supermarket development, it is in my view clear that the passage in the Response that contrasts the "format-driven" and the "class of goods" approaches and says that it is the latter that accords with PPG6 is not to be read as confined to food retail policy. It is not said to be so confined. Paragraph 1.12 of PPG6, to which express reference is made in the passage is not confined to food retailing, and it seems to me inconceivable that the Response is saying that this paragraph should be read as meaning one thing in the case of convenience goods and another thing in the case of comparison goods. Nor can I see anything inconsistent between what is said in the Response and what is said in paragraph 1.12 and other paragraphs of PPG6. Paragraph 1.11 says that adopting a sequential approach means that the first preference should be for town centre sites. Paragraph 1.12 says that developers and retailers will need to be more flexible about the format, design and scale of the development. The "class of goods" approach is to focus on the range of goods proposed to be sold and to consider whether such goods could not be sold in a town centre development or town centre developments, if necessary of a format, design and scale different from the development proposed. I can see no inconsistency between this approach, which the Secretary of State evidently treats as being implicit in PPG6, and the express words that are used. The second ground of challenge accordingly fails.

Third area of challenge: application of the sequential test

35. The third ground of challenge relates to the way in which the Secretary of State has applied the sequential test on the facts of the case. Mr Dove says that in a number of respects this application is perverse, or, if it is not perverse, is inadequately explained; and that certain material considerations have been left out of account by the Secretary of State.
36. In her report, in paragraphs 76 and 77, which I have quoted earlier, the inspector considered the sites that the council suggested were sequentially preferable to the appeal site. She noted that only 3 of the List 1 sites were suitable for retail warehouse development. She said that, since 80% of the trade draw came from within a 20-minute drive time from the appeal site, sites beyond this ceased to be contenders. She said also that, in her view, sites in local and district centres were not capable of fulfilling the same function as the appeal because of consideration of sale. She went on:

"78. The sequential approach must also be put into the context of the role and function of the Metro Centre which is recognised in the UDP and RPG as a centre of regional significance and as a preferred location for retail warehouse development. It is therefore an appropriate location for the identified need to be accommodated. The UDP was prepared in the light of the advice in PPG6 para 1.10 requiring the identification of sites on a sequential basis. As need is not disputed, and in the absence of significant impact on any existing centre, then in my view this identified, allocated site in a regional centre must surely be an appropriate location for development of this nature, especially in view of its scale, nature and visual impact. (9).

79. In my opinion retailer investors would be likely to consider the appeal site differently, in terms of investment and likely footfall of customers, from a series of small scale schemes close to other town centres in the catchment area. This is perhaps why a number of the sites which are said to be available by the Council have remained undeveloped for many years. The Council's contention that the comparison goods spending available should be channelled into high street shops or small retail warehouse units spread throughout the area does not recognise the sector of the retail market which requires to trade from the retail warehouse format and which is acknowledged in PPG6 and the UDP. (40,51)

80. There is no reason in theory why elements of the proposed scheme should not be provided on individual sites. This is a speculative development proposal with no identified end users. The Church Commissioners part of the appeal site, which already has planning permission, and the 3 sites on List 1 which are sites suitable for retail warehousing could accommodate much of the identified need for retail development. However, because of the history of long availability of the sites at Consett and Killingworth I agree with the Council that it cannot be assumed that these sites would be developed for retail development in the short term if the development on the appeal site were to proceed first. However, the availability of land for further retail development within the defined area of the MetroCentre is restricted. By the time the appeal proposals were built and occupied, the predicted demand for further development of this nature would be likely to be such as to result in the development of these other possible sites if they are in fact viable and sufficiently economically attractive."

37. The inspector referred to the proposed Trinity Square redevelopment in Gateshead town centre. She said that it was smaller than the existing development, would be anchored by a major supermarket and "meet a different type of comparison goods sector than the appeal proposals". She concluded:

"82. It seems to me that all the shopping centres in the region have had to adapt to the overwhelming presence of the MetroCentre over the years and it is clear that Gateshead Town Centre now functions primarily as a convenience goods centre and lower order comparison goods centre. The appeal proposals are not proposed as a new shopping destination, or as an addendum to a local or district centre but are destined for an allocated site within the defined retail area of the regional shopping centre to which Gateshead town centre has already adjusted. The MetroCentre already attracts large number of people and, as a result of the appeal proposals, the public transport and access by non-car modes would be improved. The appeal site is therefore, in my view, an acceptable and appropriate site for this form of retail development which would not compete directly with the Trinity Square scheme. (34,13,37)

83. I conclude that none of the other sites suggested by the Council are sequentially preferable to the appeal site which is identified for retail development within the defined boundary of the MetroCentre."

38. The Secretary of State dealt with the question of sequentially preferable alternative sites in paragraphs 19 to 29 of his decision letter. The first criticism that is made relates to the way the claimant's evidence on this was treated. Paragraph 20 says:

"20. The inquiry document 'Retail Study - Hannington Works Site Gateshead' (CD102) was submitted by our client to GMBC in August 1999 as essential information in support of the proposals. Section 5 of the Study outlines how the sequential approach has been undertaken. Paragraph 5.3 states that only sites of approximately 3ha or above were examined as potential alternatives, on the grounds that one of the units comprising the development is likely to be around 9,290 sq m and would require a sizeable site, with the remainder of the scheme being divided into equal parts."

39. Then at paragraphs 23 to 25 the decision letter says:

"23. Paragraph 5.1 of CD102 states that the sequential search has been confined to locations within the 20 minute drive band of the site. However, paragraph 5.4 makes clear that not all the centres within this area have been included. Wallsend town centre, Killingworth town centre, Shields Road District Centre in Newcastle and Prudhoe District Centre, for example, also lie within this area, but have been excluded from consideration without explanation.

24. Taking account of all this evidence, the Secretary of State considers that a more flexible approach with regard to format, design and scale of the development should have been adopted when carrying out the examination of alternative sites. The analysis put forward by your client has unreasonably restricted the consideration of potentially suitable sites by imposing an artificially high minimum site size of 3 ha, and by not including all the existing centres within the area of search.

25. Shortly before the inquiry took place, GMBC carried out a sequential analysis of alternative sites, on the basis of examination of all relevant development plans and emerging development plans, correspondence with local authorities and site visits (GMBC5). The Secretary of State considers that this evidence is comprehensive and up to date. He has already set out his reservations on the evidence submitted by your clients (CD102) regarding the availability of sequentially preferable alternative sites in paragraphs 21-24 above. Accordingly, he is of the view that the Council's evidence on this matter should be given much greater weight than that of your client."

40. There is no dispute that the primary evidence of the claimant on sequential alternatives was not the study submitted to the council in August 1999 but the supplementary evidence of the claimant's planning expert, Mr M G Baker of G L Hearn. That evidence was prepared in January 2001, shortly before the inquiry. It included Mr Baker's assessments of the alternative sites put forward by the council, including Killingworth Town Centre (B4), which was 2.71 ha, Washington Town Centre (B5), 1.18 ha, and Hermiston Retail Park (B6), 1.12 ha. It dealt with other existing centres, including Shields Road District Centre (C4) in Newcastle. Thus it addressed sites of less than 3 ha and sites in existing centres, including Killingworth and Shields Road. I accept Mr Dove's contention that in expressing himself as he did in paragraphs 23 to 25 the Secretary of State is revealing that he omitted from consideration this evidence of Mr Baker. Those paragraphs refer only to the 1999 study, and they give as the Secretary of State's reason for preferring the council's evidence on sequential alternatives the shortcomings in the 1999 study in failing to consider sites of less than 3 ha and all sites in existing centres. It seems to me inconceivable that the Secretary of State would have expressed himself as he did if he had paid regard to Mr Baker's supplementary evidence.
41. Mr Mould submits that in those paragraphs (26 to 29) in which the Secretary of State expressed his conclusions on the suggested alternatives (and to which I will refer shortly) the Secretary of State must be taken to have reached those conclusions in the light of all the material before him. I cannot accept this. By preceding his discussion of the alternative sites with the explanation in paragraph 23-25 as to why he preferred the council's evidence on these, the Secretary of State was in my view revealing his error in leaving out of account Mr Baker's supplementary evidence.
42. The other criticisms that are advanced in relation to the Secretary of State's application of the sequential approach relate to his treatment of the particular alternatives that he considered in paragraphs 26 to 29 of his decision letter. Mr Mould submits, and I accept, that these paragraphs are properly to be read in the light of the Secretary of State's overall conclusions in paragraph 33. This paragraph follows on the Secretary of State's short expression of his acceptance of the need for the development:

"32. The Secretary of State accepts that need for the development has been demonstrated, and is of the view that emerging RPG should be afforded little weight.

33. However, Government has a clear policy that existing city, town, district and local centres should be the focus for retail investment. The sequential approach to the selection of sites is of key importance in achieving this. In deciding this appeal therefore, the Secretary of State considers that the primary considerations are the extent to which the sequential approach has been satisfactorily carried out, and the availability of sequentially preferable suitable alternative sites. For the reasons given in paragraphs 21-29 above, he is of the view that your client has not demonstrated sufficient flexibility about the format of the development. There is strong evidence that suitable alternative sequentially preferable sites are available. In addition, it is likely that some of the retailing your client proposes will not be bulky goods, and could be carried out from town centres. The Secretary of State therefore considers that the failure to carry out the sequential approach satisfactorily, and to fully consider alternative sequentially preferable sites, is a material consideration of great importance, sufficient to override the proposal's consistency with the development plan, and all the other factors in its favour."

43. Paragraphs 26 to 29 say this;

"26. He [that is the Secretary of State] notes (GMBC5, GMBC7, GMBC13, GMBC18) that there are sites with planning permission for retail warehouses in Killingworth Town Centre (B4), on the edge of Consett town centre at Hermiston Retail Park (B6), and in the Shields Road District Centre (C4) in Newcastle. Both Consett and Killingworth are defined as town centres, and there is no evidence that retail warehouse development of the size already permitted on B4 and B6 would be out of scale with these centres. Shields Road is a larger District Centre which is the focus of a significant regeneration scheme, where planning permission for upwards of 10,000 sq m overall of retail development of different types has recently been granted.

27. The Secretary of State has already concluded in paragraph 22 of this decision letter that some of the goods which could be sold from the proposed development are commonly sold in town centres. Information was before the inquiry (IR50) that planning permission was granted in November 2000 for redevelopment in Gateshead Town Centre to provide 26,100 sq m of retail floorspace. There is therefore no reason why some of the retail development proposed by your clients could not be carried out from premises in Gateshead Town Centre.

28. In addition, the Secretary of State notes that there are other sequentially preferable sites potentially available in the longer term. The Sunderland Road site in Gateshead (C3), for example, which is capable of functioning as an edge of town centre site subject to new pedestrian and bus links, has recently been the subject of developer interest for 11,684 sq m non food DIY warehouse development. There is 1.18 ha land available within the nearby Washington Town Centre (B5) which is allocated in the Sunderland UDP for retail and commercial development.

29. Sites B4, B6 and C4 could provide for some 11,531 sq m of retail warehousing, are suitable for this use and could be made available in the short term. Some of the retailing proposed could be located in Gateshead Town Centre. In the light of this, the Secretary of State is of the view that there are sequentially preferable suitable sites available within the 20 minute drive time area around the application site which could easily accommodate at least half of the retail development proposed. Other land is potentially available in the longer term capable of providing for the rest of the floorspace proposed. The key issue is whether sites such as C3 and B5 are likely to become available within a reasonable period of time. Evidence before the inquiry (GMBC8), which formed part of the basis for the agreement between the parties on the issue of need, concluded that a small positive expenditure capacity would only arise by 2004, and comfortable expenditure capacity by 2006, to support all of the currently identified commitments, including the turnover requirement of the present application. In the light of this, the Secretary of State considers that there is no compelling need to provide all of the proposed floorspace immediately, and that the period up to 2006, that is the next five years, represents a reasonable period of time for suitable alternative sites to be brought forward. There is no evidence that C3 and B5 could not be made available for development within this timescale."

44. Mr Dove submits that in concluding that Killingworth (B4), Hermiston (B6) and Shields Road (C4) were suitable for the proposed use, the Secretary of State failed to explain why he was differing from the inspector, who had rejected them as unsuitable. Mr Mould submits that the Secretary of State gave adequate reasons in this respect. The Secretary of State, he says, disagreed with the inspector on the basis of policy. The inspector essentially adopted the format- driven approach, while the Secretary of State applied the class of goods approach and concluded accordingly that the sites were suitable in terms of the sequential approach.
45. I do not think that the difference between the inspector and the Secretary of State is to be explained as simply as Mr Mould suggests. I am not sure that the inspector was in fact adopting the format-driven as distinct from the class of goods approach. She said (paragraph 77) that South Shields (B2), Whitley Bay (B3), Hermiston (B6) and Shields Road (C4) ceased to be contenders because of their location. She said also that sites in district and local centres were not capable of fulfilling the same functions as the appeal proposals because of the need for new development to be in scale with the centre. She was of the view (paragraph 78) that the appeal site, as an allocated site in a regional centre was certainly suitable for the development proposed. She said (paragraph 80) that there was no reason why elements of the proposed scheme should not be provided on individual sites, but she thought (paragraph 79) that retail investors would be likely to consider the site differently from a series of small scale schemes close to other town centres in the catchment area and that that was perhaps why a number of the sites, said to be available by the council, had remained undeveloped for many years. She thought that the council's contention that the comparison good spending available should be channelled into high street shops or small retail warehouse units spread throughout the area did not recognise the retail sector that required to trade from the retail warehouse format and which was acknowledged in policy.
46. The inspector was clearly attaching weight to what she regarded as a requirement for a sector of the retail market to trade from retail warehouses. It was undoubtedly material for her to consider the preferences of retailers in this respect. Paragraph 1.12 of PPG6 says that local planning authorities should be sensitive to the needs of retailers and paragraph 3.3 states:

"3.3 Some types of retailing, such as large stores selling bulky goods, may not be able to find suitable sites either in or on the edge of town centres. In such cases, the local planning authority should still seek to ensure that such developments are located where they will be easily accessible by a choice of means of transport. (See also para 1.17)"

47. The inspector did not, however, rule out the council's suggested alternatives solely because they could not provide for large format retail warehouses. She recognised that elements of the proposed development could be accommodated on individual sites, but it appeared to her that the alternatives were unattractive to retail investors. Furthermore, those sites that were on the edge of or outside the 20-minute drive zone were not, as she put it, contenders.
48. In the light of these conclusions on the part of the inspector, the reasons given in paragraphs 26-29 by the Secretary of State for the different conclusion that he came to were, in my judgment, deficient in three respects. Firstly, he did not say what weight, if any, he attached to the demand for large retail warehouses on the part of a sector of the retail market. Adopting the class of goods approach to the sequential test clearly does not render immaterial this particular consideration, which is expressly recognised in paragraph 3.3 of PPG6. Paragraph 1.12 requires local planning authorities to be sensitive to the needs of retailers. In view of the weight attached to this consideration by the inspector, it was necessary in my view for the Secretary of State to explain how the judgement that he had formed took account of it.
49. The second deficiency in the Secretary of State's reasoning in my judgment, is that he failed to explain his views on the suggested unattractiveness of alternative sites to retail investors. In view of the conclusions of the inspector and the express reference to viability in paragraph 1.12 of PPG6, it was not sufficient for him in my view to deal with alternative sites solely in terms of their availability. The claimant was entitled to be told whether the Secretary of State took a different view from the inspector on the question of the viability of alternative sites.
50. The third deficiency, in my judgment, is that the Secretary of State failed to say why he rejected – as, impliedly, he must have rejected – the inspector's conclusion that certain of the alternatives ceased to be contenders on account of their location. The evidence to which the inspector had regard was based on what I understand to be a conventional study of retail capacity and impact. Such a study looks at the trade that would be drawn to the proposed development from a catchment area centred on the appeal site. The catchment area is defined in terms of drive-time bands and the trade draw relates to the expenditure of the population within the catchment area on the range of goods under consideration. It follows that a catchment area, and consequently the population within it, the expenditure and the trade draw are all site-specific. Each site will have its own catchment area and in general the further two sites are apart the less their catchment areas will overlap. It was this point that the inspector evidently had in mind when saying as she did in paragraph 77 that, since 80% of the trade draw came from within the 20-minute drive band, four List 1 sites and most of the List 2 sites ceased to be contenders. In his decision letter the Secretary of State at paragraph 29 identified three particular sites as being suitable and available. Of these Hermiston (B6) and Shields Road (C4) were among the sites that the inspector had discounted because of their location. In disagreeing with the inspector on the point the Secretary of State needed in my view to explain why these sites were to be regarded as suitable alternatives despite their distance from the appeal site and, consequently, the different catchments that they would serve.
51. A further deficiency in the reasoning of the Secretary of State, Mr Dove submits, is to be found in paragraph 29 where the conclusion was expressed that there was no compelling need to provide all of the floorspace immediately and that the period up to 2006 represented a reasonable period of time for suitable alternative sites to be brought forward. This conclusion was there expressed to have been reached in the light of the following:

"Evidence before the inquiry (GMBC8), which formed part of the basis for the agreement between the parties on the issue of need, concluded that a small positive expenditure capacity would only arise by 2004, and comfortable expenditure capacity by 2006, to support all of the currently identified commitments, including the turnover requirement of the present application."

52. Mr Dove points out that the claimant's case on need distanced itself from the council's analysis, which was derived from the April 1999 study. This is clear from the way in which the inspector recorded the claimant's case at paragraph 36, which I have quoted earlier. The G L Hearn study of November 2000 was said to show that there would be sufficient capacity for the appeal scheme and other commitments by 2003, with a surplus beyond this of £123.10m of retail expenditure. Indeed sufficient capacity to support the appeal scheme was said to exist by the end of 2001. In her second supplementary report (at paragraph 6, which I have also quoted earlier) the inspector said that the worst case postulated was that by 2006 expenditure growth would comfortably support all the identified commitments, while a less cautious calculation suggested that by 2003 there would be a residual of £36.7m even when confirming the analysis to the 20-minute catchment area. In her first supplementary report the inspector had said in paragraph 6:

"The parties agreed (Doc GMBC8), on the basis of the Retail Study, that an objection to the appeal proposals based on the failure to demonstrate need could not be sustained and would not be pursued."

53. That, manifestly, was not a statement that the claimant and the council were agreed that capacity would not arise until 2004, with comfortable expenditure capacity by 2006. The other passages that I have referred to in the inspector's report and her second supplementary report made clear that the claimant was taking a more optimistic view and that the inspector was not rejecting this view.
54. In these circumstances there was, in my judgment, a need for the Secretary of State to explain why he based himself upon the council's view on the date when capacity would arise rather than the claimant's view, derived from its study of November 2000. His failure to do so is a further defect in his reasoning.
55. In paragraph 27 of his decision letter the Secretary of State said that there was no reason why some of the retail development proposed could not be carried out in the 26,100 sq m of retail space proposed in the Gateshead Town Centre redevelopment. Mr Dove pointed out that the redevelopment was to replace existing floorspace and the resulting non-food area would in fact be less than at present. I agree that the Secretary of State's reliance on the redevelopment is unexplained and, on the face of it, illogical. Paragraph 29 makes plain that he was viewing the redevelopment floorspace as available to meet capacity requirements (and not simply to satisfy the requirement of retailers for newly developed floorspace). His unexplained reliance on the Gateshead redevelopment is a further defect in his reasoning, in my view.
56. The final element of Mr Dove's third ground of challenge derives from the fact that, as he points out, no reference at all is made in the decision letter to the appeal decision of 23 February 2000 on the Church Commissioners site. That appeal related to a substantial part of the appeal site. The policy issues were the same, and the need issues were also the same, albeit related to a rather smaller development. The Secretary of State decided in that case that planning permission should be granted. Mr Dove's first submission is that, since the Secretary of State did not refer to the Church Commissioners appeal decision, it is to be inferred that he left it out of account. I find it impossible to draw such an inference. It seems to me to be inconceivable that the Secretary of State could simply have overlooked such an obviously relevant recent decision, and it would only be right to infer that he had deliberately left it out account if there was some inescapable inconsistency between the grant of permission in the one case and its refusal in the other. It does not seem to me, however, that one can say more than that there is an apparent inconsistency between the two decisions. But it is because of this apparent inconsistency that I accept the second way in which Mr Dove puts the challenge – that it was incumbent on the Secretary of State to explain what it was that distinguished the earlier proposal from the present one so as to justify permission in the one case and to require refusal in the other.
57. Mr Dove relies on North Wiltshire District Council v Secretary of State for the Environment [1992] 2 PLR 113 where at 122 F-123B Mann LJ said:

"In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest, and it would be wrong to so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.

To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way, am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example, in the case of disagreement on aesthetics. On other occasions they may have to be elaborate."

58. Mr Mould submits that the only question is whether it could be ascertained from the decision letter why it was that the Secretary of State was refusing planning permission despite having granted it in the Church Commissioners appeal. If it could be so ascertained, it did not matter that the earlier decision was not referred to. In my judgment the need for an express explanation of an apparent inconsistency between the decision under consideration and an earlier decision will depend on the circumstances. If the explanation for the inconsistency is obvious, a formal statement of it will be unnecessary. Where the inconsistency is stark and fundamental, as it seems to me it is in the present case, it will in my judgment usually be insufficient to leave it to the reader to infer the explanation for the inconsistent decisions. The reason for this is that unless the decision-maker deals expressly with the earlier decision and gives reasons that are directed at explaining the apparent inconsistency, there is likely to be a doubt as to whether he has truly taken the earlier decision into account. In the present case, moreover, the inspector had thought it appropriate to place reliance on the earlier decision and had referred to it no less than 33 times in the course of his report. The claimant was entitled in these circumstances to an express explanation on the Secretary of State's part, and it has been substantially prejudiced by the lack of such an explanation.
59. In my judgment the reasons given by the Secretary of State for disagreeing with the inspector and dismissing the appeal are in a number of respects seriously inadequate, and there is no doubt that the claimant has been prejudiced as a result. In addition the decision letter shows that the Secretary of State left out of account the claimant's supplementary evidence on the sequential test, which pointed to a different result from the one that he reached on the basis of the council's evidence. The application is granted.

- - - - - - - - - - - - -

COSTS

THE DEPUTY JUDGE: For the reasons set out in the judgment that I now hand down, the application is granted. I should say that on re-reading the draft that was provided to counsel, I have noted three small typographical errors which I have corrected on the handed down judgment. Just to identify them: in paragraph 40, line 8, "there" becomes "thus"; paragraph 43, "paragraph" becomes "paragraphs"; and paragraph 50, the word "are" is inserted at the beginning of the line.

MR RICHARDS: My Lord, inevitably at this time of year, both Mr Dove and Mr Young are away on holiday and I appear for the claimant. In the circumstances I apply that the first defendant be ordered to pay the claimant's costs to be subject to detailed assessment if not agreed.

MR LITTON: My Lord, I cannot resist the application for costs in principle. I am at a slight disadvantage in the sense that I am not instructed in relation to the substantive hearing. I have only seen the judgment itself, but I do have instructions that, in so far as the quantity of costs, whilst plainly the bottom line needs to be the subject of detailed assessment, I do have an application that in this particular case the Secretary of State should be ordered to pay a proportion of the claimant's costs. The power is given to you under Part 44.3 of CPR. My Lord, very simply, there were three substantive grounds of challenge to the decision. Plainly, the claimant only succeeded in relation to the last of those, and that, as a ground of challenge itself, appears to have mutated in the course of argument. Certainly, the skeleton argument put in by the claimant alleged perversity in relation to that particular matter. It appears, ultimately, to have fallen out as a reasons challenge. The Secretary of State failed to give adequate reasons in relation to his conclusions on the sequential test.

I understand that the full case did take the best part of two full days. In those circumstances, I would ask that there should be a reduction in the terms of costs to reflect the fact that the claimant has only succeeded on one of the three grounds. I do not suggest that there is any improper conduct on behalf of the claimant, it is simply to reflect the way the substantive argument developed and it was only one of the three grounds that succeeded.

MR RICHARDS: You will know that is an exceptional course to take rather than the rule. It is quite true that under CPR 44.3 your Lordship does have a general discretion, but the normal rule is that the whole of the costs in a case like this would follow the event. It is quite common for a claimant to succeed on only one of his two grounds. Your Lordship has not dismissed the other of the two grounds as being fanciful, or close to suggesting they were not properly brought or arguable. Your Lordship does not indicate in his judgment in terms that these were makeshift or improper grounds to bring before the court and to argue. In those circumstances, I would urge you to follow the usual course.

THE DEPUTY JUDGE: There will be an order that the first defendant pay the claimant's costs, such costs to be the subject of detailed assessment.

MR LITTON: I have a further application, on instructions, to ask your Lordship for permission to appeal. Again, inevitably, I am somewhat handicapped by the fact that I only have the benefit of your Lordship's judgment. Nonetheless, I do make the application based upon the premise that the appeal would have a real prospect of success. I perfectly accept that your Lordship found that in the claimant's favour on the basis that there was a failure by the Secretary of State to provide adequate reasons. I would invite your Lordship to accede to my proposition that the Court of Appeal may, and indeed there is a reasonable prospect of success, take a different view as to the advocacy of the reasons given by the Secretary of State as to that particular issue.

THE DEPUTY JUDGE: I found that the decision was defective in quite a large number of respects so that merely to satisfy the Court of Appeal on one of them or indeed on a number of them might not get you very far.

MR LITTON: I would have to accept that the judgment would have to be in relation to all those reasons which your Lordship found to be defective, but nonetheless I do put it on the basis that the Court of Appeal might reach a different conclusion on each of those defective reasons.

THE DEPUTY JUDGE: Permission to appeal is refused.