England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31 July 2002

Mr Justice Forbes :

1. Introduction and Background. This is an application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”), whereby the Claimant (hereafter referred to as “Wickford”) seeks an Order quashing the decision of the first Defendant, the Secretary of State for Transport, Local Government and the Regions (“the Secretary of State”), contained in his letter dated 19^th November 2001 (“the decision letter”), whereby the Secretary of State dismissed Wickford’s appeal against the second Defendant’s non-determination of Wickford’s application for planning permission for the construction of 300 dwellings together with associated roads and other works. The second Defendant, Uttlesford District Council (“the Council”) is and was at all material times the Local Planning Authority.
2. Wickford’s appeal was heard at a public local inquiry (“the inquiry”) before an Inspector (“the Inspector”) at the same time as another appeal relating to the construction of approximately 1400 metres of proposed northwest relief road (“the relief road”). The latter appeal is not the subject of these proceedings. The proposed development that was the subject matter of Wickford’s appeal was for housing forming part and constituting the next phase (called “Sector 3”) of a large comprehensive development known as “Woodlands Park” at Great Dunmow, Essex. Sectors 1 and 2 were already under construction. Hereafter I will also, from time to time, refer to Sector 3 as “the site”.
3. The inquiry was held on 15^th and 16^th May 2001, with a site inspection on 17^th May 2001. In his report dated 27^th June 2001 (“the report”), the Inspector recommended that the appeal be dismissed. In his decision letter dated 19^th November 2001, the Secretary of State effectively accepted and repeated the Inspector’s conclusions and reasoning on all determining issues and dismissed the appeal. Accordingly, Mr Dinkin QC submitted uncontroversially on behalf of Wickford that if the Inspector has made an error of law, the Secretary of State is similarly in error.
4. Relevant Legal Principles. There was no dispute as to the relevant and applicable principles of law in a case such as the present, in which the appropriate approach for the decision-maker is to balance the benefits of the proposed development against the suggested planning objections, and it was common ground that such had been the approach of the Secretary of State: see paragraph 36 of the decision letter in which the Secretary of State said this (inter alia):

“The Secretary of State agrees with the Inspector that there are objections to the proposed development … He is satisfied that when combined, the magnitude of the benefits arising from the Appeal … proposals would not be sufficient to outweigh the substantial planning objections. He therefore intends to dismiss (the) Appeal.”

5. As a general proposition, Mr Dinkin accepted that the weight to be given to the various individual considerations, that were taken into account when carrying out the foregoing balancing exercise, was a matter for the judgment of the Inspector and/or the Secretary of State. However, he stressed that, for the balancing exercise to be carried out properly, it was essential that the various considerations were themselves based on a correct understanding of the relevant facts and/or applicable policy.
6. Accordingly, before I turn to deal with each of the grounds of challenge in turn, I consider that it would be both helpful and convenient at this stage of my judgment to summarise the relevant legal principles, as follows.

(i) Where a factual error has been taken into account in reaching a decision, the decision in question will be ultra vires unless either the error was insignificant or insubstantial or the Court is satisfied that, notwithstanding the error in question, the same decision would have been reached on the basis of other valid reasons: see Simplex G.E. (Holdings) and another v. Secretary of State for the Environment and another (1988) 57 P&CR 306 at pages 323 to 326.

(ii) The decision-maker must have regard to relevant policy considerations. If he is going to depart from any relevant policy, the decision-maker must give clear reasons for doing so, in order that the recipient of the decision should know why the decision was being made as an exception to the policy and the grounds upon which the decision was actually made: see E.C. Gransden & Co. Ltd. and Falkbridge Ltd. v. Secretary of State for the Environment and Gillingham B.C. (1985) JPL 519 at page 521.

(iii) If proper regard is not had to a relevant policy, the decision will be quashed, unless it is one of those exceptional cases where the Court can be satisfied that the error has not affected the outcome: see E.C.Gransden (supra) at page 521.

(iv) In order to have proper regard to a policy, it is essential that the policy is properly understood by the decision-maker, otherwise the decision will be as defective as would be the case if no regard had been paid to the policy in question: seen E.C. Gransden (supra) at page 521.

(v) Any decision letter should be construed as addressed to a knowledgeable audience, as a whole and not construed as a statute: see South Somerset District Council v. Secretary of State for the Environment ((1993) 1 PLR 80 at page 83;

(vi) The decision-maker must take material considerations properly into account and give proper and adequate reasons for his decision. The reasons must address the “principal and controversial issues” and be such that the recipient of the decision is able to understand the outcome. It is for the Claimant to satisfy the Court that there is such a lacuna in the reasoning as to raise a serious doubt, as to whether the decision was based on relevant grounds or free from serious flaw, that would justify quashing the decision and that the Claimant has thereby been prejudiced: see Seddon Properties Ltd and Another v. Secretary of State for the Environment (1981) 42 P&CR 26 and Save Britain’s Heritage v. Number 1 Poultry Ltd (1991) 1 WLR 153 at 166H to 167C.

(vii) The Secretary of State must not take into account irrelevant material or fail to take into account that which is relevant: see Ashbridge Investments Ltd v. Minister of Health and Local Government (1965) 1 WLR 1320 and Seddon Properties (supra).

7. The Grounds of Challenge. Having regard to the foregoing principles of law, by way of general introduction Mr Dinkin submitted that there were, in effect, two questions to be asked with regard to each of the grounds of challenge in this case, namely:

(i) did the suggested error as to policy and/or fact on the part of the Inspector (and, thus, the Secretary of State) affect his conclusion with regard to the particular matter then being considered as part of the overall balancing exercise; and

(ii) if it did, did that particular conclusion have an effect on the outcome of the balancing exercise required to be carried out by the decision-maker?

8. It was Mr Dinkin’s submission that there were a number of mistakes of fact and/or policy that amounted to errors of law in relation to several of the important determining issues (see the following paragraphs of this judgment) and he contended that, if the existence of any such error were to be established, it would not be appropriate for the Court to speculate as to how the balance would have been struck if that particular error had not occurred. He therefore submitted that, on that basis, the Secretary of State’s decision to dismiss the appeal should be quashed, because it would not be possible to say that the Secretary of State would have still reached the same decision in balancing the benefits of the proposed development against its disadvantages.
9. Alternatively, Mr Dinkin submitted that, if it were to be held that there had been errors in the decision-making process, but that none of the individual errors justified quashing the decision, the cumulative effect of those errors would be such as to render the decision in question so unsatisfactory and flawed that it should be quashed, so as to enable the Secretary of State to reconsider the overall balance of planning factors. Having summarised Mr Dinkin’s general submissions, I now turn to consider the individual grounds of challenge in this case: see paragraphs 1 to 7 of the Particulars given under paragraph 6 of the Claim Form (“the Particulars”).
10. Ground 1: Paragraphs 1(a) and 1(b) of the Particulars. In these two sub-paragraphs it is suggested that, having concluded that the emerging Local Plan was a material consideration (see paragraph 22 of the decision letter), the Secretary of State had then fallen into error in that (a) he subsequently contradicted himself (in paragraph 25 of the decision letter) by accepting the view expressed by the Inspector in paragraph 96 of the report, when dealing with the question whether the proposed development was premature, that the stage the Local Plan Review had reached towards adoption was “not really the point in this case” and (b) he failed to consider what weight, if any, should be given to the emerging Local Plan.
11. However, having regard to the terms of paragraph 36 of the decision letter, in which there is no reference to prematurity as a planning objection to the proposed development, Mr Dinkin very properly accepted that the Secretary of State’s decision to dismiss the appeal had not been based on any such prematurity objection. Accordingly, he made it clear that the grounds of challenge in these two sub-paragraphs were no longer pursued and require no further consideration.
12. Ground 2: Paragraph 1(c) of the Particulars – Countryside Policy.

In paragraphs 113 to 114 of the report, the Inspector concluded that development of the northern part of the site (“the northern land”) was contrary to certain existing Structure Plan and Local Plan policies, because of its designation as an “Area of Special Landscape Value” (an “ASLV”). The essential thrust of this ground of challenge, as originally put forward in this sub-paragraph, is that the Secretary of State was in error in accepting this particular conclusion by the Inspector (see paragraph 33 of the decision letter) because, having accepted that the emerging Local Plan was a material consideration, the Secretary of State had failed to take any or sufficient account of the fact that the northern land is no longer to be designated as an ASLV and that, consequently, the emerging Local Plan contains no policy statement with regard to land so designated: see paragraphs 13 to 15 of Mr Dinkin’s written skeleton argument.

13. However, in the course of his oral submissions, Mr Dinkin accepted that nothing had been said at the inquiry about the imminent approval and publication for consultation of the draft Local Plan nor as to the emerging change in policy with regard to the ASLV designation of the northern land. He also acknowledged that there had been no mention of the point in the letter, dated 22^nd June 2001, that was sent to the Planning Inspectorate by Wickford’s planning consultants in the light of and after the Council’s approval for consultation of the draft Local Plan on 14^th June 2001. Accordingly, Mr Dinkin accepted that he could no longer rely on this particular matter as a “primary ground of challenge” (to use his words), because he was not able to submit that the Secretary of State’s decision should be quashed for failure to take into account an emerging policy change as to which neither the Inspector nor the Secretary of State had been informed.
14. Mr Dinkin nevertheless submitted that I could and should still have regard to the fact of this emerging change in policy as a factor to be taken into account in any relevant exercise of my discretion in these proceedings and, to that extent, he sought still to place some reliance upon the matter. However, I agree with the submission, made by Mr Corner QC on behalf of the Secretary of State, that there is no question of any exercise of discretion by me in these proceedings to which the fact of this emerging change in policy could be relevant. As Mr Corner submitted (correctly, in my view), in respect of each of the various grounds of challenge, the question to be decided by me is whether, for the reasons put forward in that ground, the Secretary of State’s decision can be impugned as a matter of law: see Section 288 of the 1990 Act, pursuant to which these proceedings are brought, the material terms of which are as follows:

“288. Proceedings for questioning the validity of other orders, decisions and directions

(1) If any person –

(a) …

(b) is aggrieved by any action on the part of the Secretary of State … and wishes to question the validity of that action on the grounds -

(i) that the action is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section.

…

(5) On any application under this section the High Court –

(a) …

(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action.”

15. As Mr Corner submitted and Mr Dinkin very properly recognised, there is no basis for any criticism of the Secretary of State’s decision for failure to take this emerging change in policy into account, because this particular matter was never brought to the attention of either the Inspector or the Secretary of State at any material time. Accordingly, for those reasons, this particular ground of challenge fails.
16. Ground 3: Paras. 2 and 3 of the Particulars – The Efficient Use of Land.

In these two paragraphs, it is suggested that the Secretary of State was in error in his approach to or application of the national planning policy guidance contained in PPG 3 (which provides ministerial guidance “on a range of issues relating to the provision of housing”) in two main respects: i.e. (i) the appropriate density for the development (“the housing density issue”) and (ii) whether a need for lower housing density than that advised by PPG3 existed in the area (“the housing need issue”). I shall consider each of these issues in turn.

17. (i) The Housing Density Issue. At the inquiry, one of the Council’s planning objections to the proposed development had been that the density of the housing in the proposed development was significantly below that advised in paragraphs 57 and 58 of PPG3, the material terms of which are as follows:

“57. Local planning authorities should avoid the inefficient use of land. … Local planning authorities should therefore examine critically the standards they apply to new development … to avoid the profligate use of land. …

58. Local planning authorities should therefore:

avoid developments which make inefficient use of land (those of less that 30 dwellings per hectare net); and

encourage housing development which makes more efficient use of land (between 30 and 50 dwellings per hectare net); and

seek greater intensity of development at places with good public transport accessibility …”

18. It was common ground that the overall density of housing in the proposed development was well below 30 dph: it appears that the Council’s figure was 12.5 dph and that of Wickford was 13.9 dph (see paragraph 97 of the report). However, it was Wickford’s case that the proposed overall density was nevertheless an appropriate one for the development in question, despite being below the figure advised in PPG3. In support of its case to that effect, Wickford placed great reliance and emphasis upon paragraphs 54 to 56 of PPG3, the material terms of which are as follows:

“Designing for quality

54. Good design and layout of new development can help to achieve the Government’s objectives of making the best use of previously developed land and improving the quality and attractiveness of residential areas. In seeking to achieve these objectives, local planning authorities and developers should think imaginatively about designs and layouts which make more efficient use of land without compromising the quality of the environment.

55. Local planning authorities should develop a shared vision with their local communities of the types of residential environments they wish to see in their area and articulate this through their development plan policies …

56. New housing development of whatever scale should not be viewed in isolation. Considerations of design and layout must be informed by the wider context, having regard not just to any immediate neighbouring buildings but the townscape and landscape of the wider locality. …”

19. Mr Dinkin pointed out that the proper application of the planning guidance contained in paragraphs 54 to 56 of PPG3 (in particular, in paragraph 56) had always been a critical part of Wickford’s case that the proposed density was appropriate: see, for example, the summary of Wickford’s case at the inquiry in paragraphs 24 to 30 of the Inspector’s report.
20. Mr Dinkin then referred to the conclusions that the Inspector had reached on this aspect of the matter, with which conclusions the Secretary of State agreed in paragraph 28 of the decision letter. In paragraph 100 of his report, the Inspector said this:

“100. The Appellants point to the advice in paragraph 56 of PPG 3 that the development should not be viewed in isolation and must be informed by the wider context. I agree with that view, but I do not accept that the whole of Great Dunmow is realistically “the wider context” for this development. As far as I am concerned, Sector 3 would relate most closely to the adjoining Sectors 1 and 2, which themselves relate to the edge of the older part of Great Dunmow. In my view the overall density of the town is therefore of little relevance to the decision on whether a proposed overall density on this site, of only about half that called for in national policy, is acceptable. In my view it is not. Furthermore, I see no sound reason why the density need necessarily be reduced on a site located on the edge of a town. That is not my reading of PPG3. The proposals would conflict with the requirement in Structure Plan Policy H4 which calls for achievement of maximum densities, subject to certain other considerations.”

21. It was Mr Dinkin’s submission that it could be seen from the terms of paragraph 100 that the Inspector (and, thus, the Secretary of State) had erred in his understanding and application of the policy expressed in paragraph 56 of PPG 3. Mr Dinkin suggested that the Inspector had singularly failed to take any or any proper account of the “wider context” of the site, namely the countryside, the ancient woodlands, the open grounds of Newton Hall and the Helena Romanes School and the Parsonage Down Conservation Area, all of which lie immediately to the north and east of the site. He also submitted that neither the Inspector or the Secretary of State had given any reasons for leaving these adjoining areas out of account when considering the “wider context” of the site. Mr Dinkin further contended that their failure to take those areas into account in that way was inconsistent with their subsequent conclusions with regard to the importance of the countryside affecting the northern area: see, for example, the following passage in the Secretary of State’s decision letter:

“32. The Secretary of State agrees with the Inspector that there was no countryside policy objection in respect of the main southern part of the appeal site and that the effect of the “southern” development would be acceptable on the adjoining countryside, which in that area has no special designation. He also agrees that the situation in respect of the northern part of the site was different.

33. The Secretary of State shares the Inspector’s view … that the development of the northern part of the site would be contrary to Structure Plan policies … He accepts that the proposed “Arcadian” style housing would be very apparent in the landscape … The Inspector was of the opinion that the development would substantially harm the appearance of the countryside. The Secretary of State agrees. …”

22. However, I am satisfied that there is no substance in this particular ground of challenge. I agree with Mr Corner’s submission that it is clear, both from the terms of the report and the decision letter, that the Inspector and the Secretary of State each took full account of the planning guidance contained in paragraphs 54 to 56 of PPG3. As Mr Corner observed, it was for the Inspector and the Secretary of State to form a view as to the “wider context” of the site, having regard to the guidance given in PPG 3 as a whole, guidance which seeks to avoid excessively low density housing and advises densities of at least 30 dph as the norm. I also accept that Mr Corner was correct in his submission that it was open to both the Inspector and the Secretary of State to take the view, as they both did (see paragraph 100 of the report, quoted above), that there was no sound reason why the housing density needed necessarily to be reduced on a site that was located on the edge of a town – a conclusion that clearly indicates that due consideration was given to the development in the context of the open areas in question.
23. I therefore accept Mr Corner’s concluding submission on this particular ground of challenge, namely that both the Inspector and the Secretary of State took full account of Wickford’s submissions and reached an entirely rational view as to housing density that had both proper regard to the way in which Wickford had put its case and to the context of the site. In my opinion, there was no failure to appreciate or apply the planning guidance contained in paragraphs 54 to 56 of PPG 3 as suggested by Mr Dinkin – in reality, the complete reverse is the case. Accordingly, this ground of challenge also fails.
24. (ii) The Housing Need Issue. As part of its case at the inquiry, Wickford put forward an argument that there was considerable demand and thus an existing and unsatisfied need in the area for large detached houses standing in substantial plots, i.e. housing at a density significantly lower than the 30dph advised by PPG 3. In support of that argument, Wickford placed particular reliance upon the contents of an e-mail from Mr Chris Bush, the Director of Planning at Stansted Airport, that was submitted as part of the evidence and which, so far as material, was in the following terms:

“Thank you for your enquiry regarding local housing availability, especially in the higher price brackets of £500,000 to £750,000.

I have consulted colleagues in my own planning team and in our Human Resources area and sought views on the proposition.

Considering the jobs airport companies are creating, the majority are clearly in the entry level roles commanding salaries typically in the range £10,000 - £15,000. Therefore, as with other rural areas, the main demand would be for starter homes or medium price properties. £500,000 - £750,000 homes would do nothing to assist the Employment Strategy which we are currently taking forward with the other major employers here on the airport.

Pilots and other professionals are, as you probably know, in the minority and our H(uman) R(esources) function has no reports of them experiencing any difficulties in finding a suitable property. Many staff in this bracket are prepared to travel longer distances to work which opens up the range of choice.

We would agree with the statement that the area needs a diverse range of housing but we believe, if anything, that this in fact now means building smaller more affordable homes.”

25. In his report, the Inspector (with whose conclusions the Secretary of State agreed: see paragraph 27 of the decision letter) dealt with this part of Wickford’s case as follows:

“99. This line of argument is based on a need for “Arcadian” style housing in the area, and in support of this (Wickford) put forward a letter from a reputable firm of national estate agents. I accept the conclusions in that letter that there is probably a sizeable demand for this kind of residential development in the area, particularly because of its close location to Stansted Airport. The email from the Planning Director at Stansted Airport make the point however, that the majority of jobs there are for people who could not afford the likely £500,000 to £750,000. In my view, therefore, most of the demand is probably not related to providing homes for airport employees, as envisaged for the Airport Related Housing in the Development Plan. Nevertheless, there is probably a demand for this kind of housing from other sources, though I am far from convinced of the specific level of need. This must in any case be balanced against the other material considerations, including the advice in PPG 3 to make the best use of housing land.”

26. Mr Dinkin submitted that, in reaching his conclusions with regard to Wickford’s case on housing need, the Inspector (and, thus, the Secretary of State) had fallen into error, because:

(i) he had wrongly left out of account and/or had misunderstood the terms of Mr Bush’s e-mail, which confirmed the existence in the area of a need for low density housing as claimed by Wickford; and

(ii) he had failed to take into account a material consideration, namely that Mr Bush’s e-mail also confirmed that airport staff were currently travelling long and unsustainable distances to their homes by car, something that national policy expressly seeks to reduce: see paragraphs 23 of PPG 1 and 47 of PPG 3, upon both of which Wickford had placed particular reliance, the material terms of which are as follows:

“PPG 1 … 23. In order to achieve sustainable patterns of development and to help reduce the environmental impacts of transport, local authorities should integrate their transport programmes and land-use policies in ways which help to:

. reduce growth in the length and number of motorised journeys; …”

“PPG 3 …47. The Government places particular emphasis on the importance of integrating decisions on planning and transport in order to reduce the need for travel by car. …”

27. Mr Corner submitted (correctly, in my view) that the Inspector clearly had in mind the points made by Wickford in reliance upon Mr Bush’s e-mail, as can be seen from the terms of paragraph 29 of his report, in which he summarised Wickford’s case as follows:

“29. There is strong evidence from a reputable Estate Agency that there is a need to be met by the proposed “Arcadia” houses, and there is simply no provision of such new dwellings in the area. This is supported by the email from Stansted Airport which indicates that staff are currently travelling long and unsustainable distances to their homes. …”

Furthermore, as Mr Corner pointed out, the Inspector did consider the sustainability benefit of the proposed development in paragraph 121 of his report and the Secretary of State agreed with his conclusions in paragraph 35 of his decision letter, as follows:

“35. The Secretary of State shares the Inspector’s view that there was no objection on the grounds of sustainability to the Woodlands Park Development, as allocated. He also accepts, for the reasons given by the Inspector, that the proposed northern area of development would be less sustainable than the allocated land. …”

28. It was Mr Corner’s submission, therefore, that the Inspector was entitled, having taken account of the points made by Wickford with regard to Mr Bush’s e-mail, to reach his own conclusion as to the nature of the main housing need in the area and that the conclusion he reached was entirely rational. I agree with that submission.
29. I do not accept Mr Dinkin’s suggestion that the Inspector either misunderstood or failed to take into account the contents of the e-mail in question. On the contrary, as it seems to me, the Inspector’s interpretation of the information it contained and his resulting conclusions were entirely reasonable. In my view, the fact that the Inspector made no specific reference, when stating his conclusions on this aspect of the matter, to the suggestion that airport staff were currently travelling unsustainable distances, was plainly because he was not persuaded that such was the case to any material extent. That he should have formed such a view is hardly surprising, given the terms of the e-mail in question (see above). Not only was the relevant part of the e-mail dealing with the minority of staff (e.g. professionals, such as pilots) but, as Mr Corner observed, it is notable that it stated that there were no reports of such staff having any difficulty in finding a suitable property. For those reasons, therefore, this ground of challenge also fails.
30. Ground 4: Paragraph 4 of the Particulars – Affordable Housing.

Mr Dinkin submitted that the Inspector and the Secretary of State had both fallen into error in their treatment of the issue of affordable housing in a total of five different ways. I therefore turn to consider each of the alleged errors in turn.

31. (1) First, it was said that the Inspector and the Secretary of State had misunderstood what Wickford was proposing to provide by way of affordable housing, as detailed in its letter dated 9^th May 2001 to the Council’s Planning Officer, Mr J. Bosworth, the material terms of which were as follows:

“I write with reference to your letter dated 17^th April 2001 regarding the above which when read in conjunction with your Proof of Evidence and that of Richard Fordham, helps to clarify the Council’s position. I must say how disappointed I am that the Council has changed its position so markedly to that which you portrayed in earlier discussions and correspondence in this matter where you clearly indicated that low cost market housing and equity share had a role to play and that we would agree the provision prior to the Inquiry. …

We have now reconsidered the position in the light of your evidence and also the indication that you intend to deal with this issue at the Inquiry by way of planning condition. I am therefore writing to you in one final effort to resolve this matter prior to the Inquiry. The Inspector will only be concerned to ensure that the appropriate provision should be made in relation to the Sector 3 application before him. For the purposes of this offer only we have recognised your requirement to provide 25% of the dwellings as affordable and the only issue between us therefore is the extent to which low cost market housing has a contribution to make. We have no objection to an appropriate condition being imposed along the lines you have suggested although we are as mentioned to you seeking advice as to the precise wording which in my view should reflect the fact that Government advice clearly indicates that equity share and low cost market housing has a role to play.

However, there is a further aspect relating to affordable housing which could be dealt with by agreement i.e. the “Jelson” problem position concerning the existing Agreement. The Inspector cannot resolve this problem but we propose that as part of an overall agreement prior to the Inquiry an Agreement is entered into which would have the benefit of relocating the existing allocation within Sector 2 and making it “Jelson proof”.

I accordingly enclose herewith a further plan showing hatched in black the two areas which we are now proposing to offer for rented housing in connection with the development of Sector 3. This comprises the “mixed use site” previously referred to in correspondence together with a further area of approximately 1 acre. The central section of approximately 4 acres remains as a direct replacement for the existing allocation and incorporates an element of equity share along the frontage to the public open space. All of the remaining area within Sector 2 would be available for rental.

It is my view that the 2 acres or thereabouts now being offered in connection with Sector 3 could accommodate 35-40 2/3 bedrooms dwellings. However, if these were all in the form of 1/2 bedroom apartments in excess of 60 dwellings could be accommodated. The balance of up to the 75 dwellings that you are seeking would comprise of low cost market houses provided on Sector 3 or, by agreement with the Council, elsewhere within Woodlands Park.”

32. Attached to the letter of 9^th May was a sketch plan that was intended to illustrate what was proposed by Wickford. Mr Dinkin emphasised that: (i) there was no issue between Wickford and the Council with regard to the relevant figures, i.e. that Wickford had to provide 75 “affordable” houses for the Sector 3 development, representing 25% of the number of dwellings to be provided by the proposed development; and (ii) the Council did not disagree in principle with part of the affordable housing required for Sector 3 being located on Sector 2.
33. Mr Dinkin then pointed out that Wickford’s proposal was, in effect, a straightforward revision of the arrangements for the affordable housing required for and to be located on Sector 2, so that a further 60 “affordable” units of rented housing for Sector 3 could also be provided (see the explanatory plan that was prepared during the course of the hearing and which must be read in conjunction with Plan B, pages 130A and 207 respectively of the court bundle). The remaining balance of 15 units, needed to achieve the necessary total of 75 affordable units for Sector 3, was to be provided by way of low cost market housing on Sector 3 itself.
34. Mr Dinkin submitted that it was apparent from the terms of paragraph 102 of his report that the Inspector had completely misunderstood or misconstrued Wickford’s proposals for the provision of affordable housing as made in its letter of 9^th May. What the Inspector said was this:

“102. (Wickford’s) proposal is to provide 60 low cost market-housing units on the Appeal Site. Some 0.4 ha of the land within Sector 2 would also be transferred to a Registered Social Landlord at 45% of the market value, on which (Wickford) envisage 20 to 30 dwellings could be erected for rent. As (Wickford) point out, this would amount to more than the “up to 25%” figure sought for affordable housing in Local Plan Policy H4(b).”

35. Mr Dinkin submitted that the Inspector had clearly misunderstood Wickford’s proposals: (i) as to the type of affordable housing being offered, both for the 60 units and for the balance, (ii) as to the location of the 60 units and (iii) as to the amount of land to be made available in Sector 2. He described the Inspector’s misunderstanding or misconstruction of Wickford’s letter of 9^th May as “a fundamental mistake in the Simplex sense” and, therefore, one that invalidated the entire decision-making that was based upon it.
36. Mr Corner accepted that Wickford’s amended proposals made in its letter of 9^th May did appear to have been misunderstood by the Inspector and thus by the Secretary of State. However, it was his submission that Wickford had not been prejudiced as result of any such misunderstanding, because it was clear that the amended proposals would still have been unacceptable, even if they had been properly understood. Mr Corner suggested that this was manifestly so because the reasons for rejecting the “misunderstood proposals” were entirely rational and were reasons that applied with equal force to the “actual proposals” (i.e. the proposals, as properly understood) and would have been applied with the same result; in effect, it was his submission that the Inspector’s conclusion (and that of the Secretary of State) on this aspect of the matter would still have been the same if Wickford’s actual proposals for affordable housing had been correctly understood and, thus, properly considered on its merits.
37. In support of his foregoing submissions, Mr Corner referred to paragraphs 30 and 36 of the decision letter, in which the Secretary of State accepted the findings and conclusions expressed by the Inspector in paragraphs 103 to 106 and 131 to 133 of his report which, so far as material, are in the following terms:

“103. However, the Council contended that the 60 low cost market houses would not meet the housing needs of the district. In their view, these new dwellings would be more expensive than an equivalent “second-hand” dwelling, and that to be really affordable they would have to be priced at considerably less than a “second-hand” unit, which would then make them unacceptably substandard dwellings. Accordingly, they considered that only shared equity or rented accommodation would meet the requirement for some 290 units of affordable housing a year, as identified from their Housing Needs Survey.

104. As the Council observed, PPG 3 refers to affordable housing, but says that the detail is in Circular 6/98. Looking therefore at the circular, that does indicate in paragraph 4 that low cost market housing can be included as affordable housing, but paragraph 15 also says that it should be directed at meeting the local needs. It seems to me that the Council have quite properly assessed the local need in its Housing Needs Survey and they also judge that, in their area, low cost housing would not meet that need. In my view, the proposed low cost units would not therefore meet a genuine need and should be disregarded from the number of affordable housing units.

105. The other proposed element of affordable housing would be provided by a Registered Social Landlord, but the Council envisaged that, even with a cost for the land of 45% of the market value, it was unlikely that a Registered Social Landlord could afford to erect suitable rented accommodation or shared equity units. There was no evidence to show that any prospective landlord had considered this matter and indicated that they could do so. I therefore have my doubts about the viability of the 20 or 30 units proposed for what was intended to be a mixed-use area within Sector 2.

106. In addition, (Wickford) wished to relocate the 110 units of proposed affordable housing on Sector 2. This relocation would group all the affordable housing in one area of Sector 2 and would in my view be very much contrary to the national advice to distribute this kind of housing throughout a development. A similar point can be made about the proposal to group all the low-cost market housing or “urban grouping” housing at one location on Sector 3.

…

131. Although government advice acknowledges that low cost market housing may be included in affordable housing provision, that housing must indeed be affordable to the people who need it. From their housing needs survey, the Council conclude that only shared-equity or rented housing is likely to be really affordable in their area. On that basis, I consider the proposed 60 low cost units to be unlikely to be affordable, and therefore not to meet the Council’s substantial need for such accommodation.

132. I also express doubts about the financial viability of accommodation provided by a Registered Social Landlord when the land is charged at 45% of the market value.

133. Accordingly, I do not consider the proposed affordable housing element of the proposals to be adequate in terms of their number or indeed their distribution throughout the site.”

38. Mr Corner submitted that it was clear from these particular paragraphs in the report that the Inspector had come to the following important general conclusions with regard to Wickford’s proposals for affordable housing (as he understood them to be):

(i) that the proposed rented housing, on the terms offered by Wickford, would not, in any event, be viable (see paragraphs 105 and 132, above);

(ii) that the proposed low cost market housing was unacceptable and should be disregarded because it would not meet the particular local need for affordable housing (see paragraphs 104 and 131); and

(iii) that the proposed location of the affordable housing was, in any event, unacceptable because it did not provide for suitable distribution throughout the development, but would result in inappropriate “grouping” of the housing in question (see paragraphs 106 and 133).

39. Mr Corner’s point was a simple one. The Inspector’s reasons for his conclusion that Wickford’s proposals for affordable housing were not adequate were entirely rational and were reasons that were equally applicable to the actual proposals because, even when properly understood, the fact was that the proposals still consisted solely of housing types (i.e. rented housing and low cost market housing) that were rationally considered to be unacceptable as affordable housing in the area and the proposals still involved inappropriate “grouping” of the housing in question.
40. So it was that Mr Corner submitted that there could therefore be no doubt that the Inspector’s conclusion and that of the Secretary of State with regard to the inadequacy of the proposed affordable housing would still have been the same. I agree with that submission and, accordingly, for those reasons this ground of challenge also fails.
41. (2) Second, it was said that the Inspector and, thus the Secretary of State, had erred in concluding that the low cost market housing units should be disregarded from the number of affordable housing units (see paragraph 105 of the Inspector’s report, above). Mr Dinkin submitted that this conclusion:

(i) failed to interpret correctly and/or apply relevant ministerial policy on Affordable Housing as contained in Circular 6/98, in particular at paragraph 9(a) which states (inter alia):

“9. Where local planning authorities are able to demonstrate a lack of affordable housing to meet local needs … they should:

(a) include in the plan a policy for seeking an element of affordable housing on suitable sites. The policy should define what the authority regards as affordable, but this should include both low-cost market and subsidised housing, as both will have some role to play in providing for local needs. …”

(ii) and erroneously assumed that only subsidised housing could be affordable within the meaning of that policy.

42. Mr Dinkin pointed out that there is nothing in Circular 6/98 to suggest that low cost market housing could or should be disregarded in cases where the greatest established need is for subsidised housing, but that such had been, in effect, the approach adopted by both the Inspector and the Secretary of State. He therefore submitted that both had erred in their understanding and/or application of relevant national policy.
43. I am satisfied that there is no substance in this particular criticism. As Mr Corner pointed out and the Inspector clearly appreciated (see paragraph 104 of his report, above), Circular 6/98 also contains the following further important and relevant guidance in paragraph 15:

“15. Decisions about what affordable housing types to build should reflect local housing need and individual site suitability and be a matter for discussion and agreement between the parties involved. Within that framework, local planning authorities and developers should be reasonably flexible in deciding the detailed mix of affordable housing most appropriate for a particular site – subsidised and low-cost market housing – provided that it will contribute to satisfying a local need for affordable housing as demonstrated by a rigorous and realistic assessment of local need.”

44. In this case, the Council had carried out a “rigorous and realistic assessment of local need” and the Inspector (as he was entitled to) found it to be a proper assessment which showed that the local need for affordable housing would not be met by low cost market housing (see paragraph 104 of the report). I therefore accept Mr Corner’s submission that, having regard to the Council’s assessment of need, the Inspector and the Secretary of State were entitled to come to the conclusion that it was appropriate, in this particular case, to disregard low cost market housing, when considering whether the proposed development made adequate provision for affordable housing. As it seems to me, far from being an error of policy, the approach of both the Inspector and the Secretary of State was entirely in accordance with Circular 6/98 and, in particular, with paragraph 15 thereof. I therefore reject Mr Dinkin’s submissions to the contrary effect and for those reasons this ground of challenge also fails.
45. (3) Third, it was suggested that the Inspector, and thus the Secretary of State, had failed to take into account an important material consideration, namely the suggestion, made by Wickford in its letter of 9^th May (see above) and repeated in argument at the inquiry, that to proceed as proposed would resolve a doubt as to the legality of the Section 108 Agreements relating to the provision of the affordable housing required on Sectors 1 and 2. The doubt in question was said to arise from the possible application of the decision in Jelson v. Derby City Council (2000) JPL 203 to clauses 1, 2 and 4 of Schedule III to the section 106 Agreement dated 12^th October 1993 (see page 161/162 of the court bundle).
46. Again, I am satisfied that there is nothing in this particular point. As Mr Corner pointed out, it is clear from the express reference to the section 106 Agreement in paragraph 36 of his report, together with the implicit reference in paragraph 106, that the Inspector did have the “Jelson” point in mind. I accept Mr Corner’s submission that, having decided that Wickford’s proposals were unacceptable because it would group all the affordable housing in one area of Sector 2 (see paragraph 106 of the report), the Inspector was not required to deal with this particular issue in any more detail than he did. Accordingly, for those reasons, this particular ground of challenge also fails.
47. (4) Fourth, it was said that there had been no evidence at the inquiry to justify the Inspector’s conclusion that there was doubt as to the viability of the units for rent (see paragraphs 105 and 132 of his report, above). However, to all intents this point disappeared when Mr Dinkin very properly accepted that he was not in a position to dispute Mr Corner’s assertion that Dr Richard Fordham had given unchallenged evidence on behalf of the Council to the effect that, in practice, a zero land price is expected to be required in order to achieve a viable shared-equity or rental scheme as summarised in the final sentence of paragraph 61 of the Inspector’s report, as follows:

“61. … Furthermore, in practice a zero land price is likely to be required in order to likely to be required in order to achieve a viable shared-equity or rental scheme.”

48. As Mr Corner observed, in the light of Dr Fordham’s unchallenged evidence and in the absence of any evidence to the contrary effect, the Inspector was clearly entitled to come to the conclusion that, having regard to the terms upon which they were offered, there was doubt as to the viability of the proposed rented units. In my view, it would have been very surprising if he had come to any other conclusion in this case. Accordingly, this ground of challenge also, for those reasons, fails.
49. (5) Fifth, it was suggested that the Inspector and the Secretary of State had failed to have any or any sufficient regard to the suggestion made by Wickford at the inquiry that the Council’s concerns with regard to affordable housing could be met by a suitably worded condition, as suggested by Circular 6/98. Mr Dinkin claimed that Wickford had not only put forward a suggested form of condition at the inquiry, but had also stated that it was prepared to accept a condition that would leave open the precise content of the proposed development (as to type, sizes and mix of housing) for subsequent discussion and agreement. He submitted that such a condition would have required the appropriate provision of affordable housing to be settled before construction of the development could commence and would therefore have overcome any concerns with regard to viability, type, size and mix. It was his submission that, by failing to give any consideration to this suggestion, the Inspector (and, thus, the Secretary of State) had fallen into error.
50. Mr Corner stressed that it was not accepted that any condition, other than the one expressly put forward by Wickford as part of its case at the inquiry (see page 142 of the court bundle), was ever on offer and he made the telling comment that there is nothing in Mr Neale’s witness statement to suggest otherwise. Accordingly, as it seems to me, if there was some passing suggestion at the inquiry that a condition, worded other than the one that was expressly put forward by Wickford, could be suitable, it was not done in such a way as to make it necessary for the Inspector to make any specific reference to such a suggestion in his report, particularly having regard to the way in which Wickford’s essential case on the question of a suitable condition was run, as summarised by the Inspector (see paragraph 86 of the report, below).
51. So far as concerns the condition that was expressly suggested by Wickford, as Mr Corner pointed out, the Inspector did take it into account and referred to it in paragraphs 38 and 86 of his report, as follows:

“38. (Wickford) have long sought agreement with the Council on the matter of affordable housing, and would be content with a condition requiring the submission of an “Affordable Housing Scheme” (see paragraph 86)

…

86. (Wickford) put forward a revision of the Council’s Condition o. It calls for a scheme of affordable housing to be submitted for approval, and defines the elements of the 25% of the permitted housing units that would be affordable housing. Despite the 25% figure quoted, they still wish to retain a degree of flexibility about the actual numbers and their locations. The Council considered that no element of the affordable housing provision should be low-cost market housing and they wanted certainty about the numbers, even though the locations could be left for further negotiation.”

52. Again, I accept Mr Corner’s submission that, in the light of his rational conclusions as to the non-acceptability of low cost market housing and the non-viability of rented units (see above), there was no need for the Inspector (or the Secretary of State) to give further specific consideration to the suggested condition, which was plainly unsuitable for the reasons summarised in paragraph 22 of Mr Corner’s skeleton argument.
53. Mr Corner also pointed out that the Council’s suggested condition (see page 142A/B of the court bundle) did not meet the Inspector’s concerns with regard to the type of affordable housing that was appropriate for the development, nor did either of the suggested conditions deal with the “grouping” problem that he had identified.
54. Furthermore, I accept Mr Corner’s submission that, if either the Inspector or the Secretary of State had himself put forward a more suitably worded condition in this case, that would necessarily have involved more than a “slight alteration” in the wording of either of the conditions suggested by the parties and, thus, to have done so might well have amounted to procedural unfairness, unless the inquiry were to be reopened to enable the parties to make appropriate further representations about the matter: see the decision of Forbes J. in Marie Finlay v. Secretary of State for the Environment and the London Borough of Islington (1983) J.P.L. 802, cited with approval by the Court of Appeal in Top Deck Holdings Ltd. v. Secretary of State for the Environment and Woking B.C. (1991) J.P.L 961 at pages 964/965. It is also important to bear in mind that there is no obligation on either the Inspector or the Secretary of State to “cast about for conditions not suggested before him”: see the judgment of Mann L.J. in Top Deck (supra) at page 965. Accordingly, for the foregoing reasons, I am satisfied that there is also no substance in this ground of challenge which, therefore, also fails.
55. Ground 5: Paragraph 5 of the Particulars – The Master Plan. The Inspector dealt with the need for an agreed Master Plan in paragraphs 107 to 110 of his report and rejected Wickford’s submission that its absence should not prevent the appeal from being allowed because all outstanding matters could be dealt with by the imposition of suitable planning conditions. In paragraph 31 of his decision letter, the Secretary of State agreed with the Inspector’s conclusions to that effect. What the Inspector said was this:

“107. Both Local Plan Policies GD8 and H4 call for the development of the Woodlands Park site to be in accordance with an agreed Master Plan, but the plan submitted by (Wickford) has not been agreed. (Wickford) argue however, that there would be no harm if the appeal were allowed because all of the outstanding matters could be covered by conditions. Like the Council, I cannot accept that viewpoint.

108. In anyone’s terms, this is a significant site, and one that needs comprehensive planning to include not only the numbers of dwellings and their general locations, but also such things as the provision of public open spaces. It is quite possible that a developer could produce a scheme that was appropriate for the site without going through the master plan process. However, I consider it highly desirable that matters should be resolved in principle before proceeding to more detailed design; after all, that is likely to avoid the unnecessary waste of much time and resources.

109. (Wickford) had submitted their proposed Master Plan, but the Council had not agreed it, partly because of the preponderance of large dwellings, and partly because of the possible effect on the unsurveyed woodland that would end up within the curtilage of some of the dwellings. Both of these seem to me matters which need resolution, and may not be capable of satisfactory control by conditions.

110. Of fundamental importance however is the inclusion of a substantial area of land within the site that has not been allocated for development purposes. This is a matter that should be determined at this stage, and is certainly not a matter that could be dealt with by planning conditions.”

56. Mr Dinkin submitted that the conclusion, reached by both the Inspector and the Secretary of State, to the effect that Wickford’s failure to agree a Master Plan constituted a valid planning objection, was irrational and/or Wednesbury unreasonable. He pointed out that Wickford had offered a suitable condition in agreed form which, if it had been imposed, would have required a Master Plan to be submitted and approved by the Council before any other details were submitted. He suggested that the failure to give any or any adequate explanation, as to why such a condition would not have dealt satisfactorily with all matters of concern, demonstrated and/or meant that the conclusion in question was irrational.
57. In my judgement, this is a hopeless ground of challenge. I agree with Mr Corner’s submission that it was entirely rational for both the Inspector and the Secretary of State to apply the Local Plan policy that required an agreed Master Plan for the development in question and that adequate and appropriate reasons were given for having done so. Accordingly, for those reasons, this ground of challenge also fails.
58. Ground 6: Paragraph 6 of the Particulars – The Benefits of the proposed Development.

It was part of Wickford’s case that if the appeal were to be allowed, so that development of the northern land could go ahead, it would mean that there would be the benefit of an agreement to complete the construction of the relief road within two years of the grant of planning permission. This was to be contrasted with what was described as the “total uncertainty” as to the completion of the relief road under the existing section 106 Agreements, where the period would apparently be not less than 12 years. Mr Dinkin also pointed out that Wickford had offered an additional benefit of £0.5million for environmental improvements in Great Dunmow town centre, which improvements were not required under the existing Agreements and which would not otherwise be carried out until the relief road was opened.

59. In paragraph 34 of his decision letter, the Secretary of State agreed with the Inspector’s conclusions with regard to these suggested benefits of the proposal development, as expressed in the paragraphs 117 to 120 of the Inspector’s report, the material terms of which are as follows:

“Benefits of the Proposals

117. (Wickford) refer to the additional approximately 2.4ha of public open space that would be made available on the northern land. That would increase the total sum of land open to the public in the area and therefore be of some benefit, but the number of people living in the area would also be increased, so the net benefit would be somewhat reduced.

118. (Wickford) claim that the development of the northern land would provide a direct link with the relief road. Clearly the two would be closely linked geographically, and the occupiers of the dwellings would use the road, but beyond that I see little relevance in providing a direct link. A direct link could have been quite significant if substantial weight were to be given to the proposal to build the road, but it already has planning permission and should come to fruition in due course, in accordance with the provisions contained in the Section 106 Agreements for Sector 2.

119. As asserted by (Wickford), it is true that the completion of the relief road would be of benefit to the community in that it should reduce the traffic congestion in Great Dunmow, particularly at peak periods. That benefit to the community would be brought forward by perhaps 8 years if the Appeal were allowed.

120. This reduction in the traffic flow would no doubt make it more acceptable to carry out (Wickford’s) proposed environmental scheme in the High Street. … (Wickford’s) £0.5m for such a scheme could therefore be of some benefit to the community.”

60. It was Mr Dinkin’s main submission under this ground that the Inspector’s reasoning and conclusions, with regard to the benefits to be gained from the proposals (in particular, his conclusion that providing a direct link with the relief road was of little relevance), were invalidated by an important error that he had made as to the number of years by which the construction of the relief road would be advanced if the appeal were to be allowed. Mr Dinkin submitted that it was clear from the terms of the existing section 106 Agreements that the correct figure was 10 years, whereas the Inspector had come to the erroneous conclusion that only 8 years would be gained, thus reducing the value of the benefit by a significant amount and invalidating the decision-making process on this aspect of the matter.
61. However, I have come to the conclusion that this particular ground of challenge is also without any substance. As Mr Corner pointed out, it is by no means clear that the Inspector did make an error as alleged, because what he actually said was that the road would be bought forward by “perhaps 8 years”: see paragraph 119. Accepting as I do that (if stated precisely) the figure should have been 10 years, the approximation used by the Inspector to define the relevant period of time cannot possibly be characterised as an error of any significance or materiality, if it be an error at all. Accordingly, if it is right to regard it as an error, it was manifestly not of such significance as to vitiate the decision-making process. I have no doubt that the decision would have been the same if the correct number of years had been specifically stated. I also accept Mr Corner’s further submission, that there are no other possible grounds for otherwise criticising the rationality of the Inspector’s conclusions with regard to the benefits of the proposed development. Accordingly, for those reasons, this ground of challenge also fails.
62. Ground 7: Paragraph 7 of the Particulars – Financial Risk and Utilisation of the Infrastructure.

In this final ground of challenge it was said that there was no evidence upon which the Inspector could rationally come to the conclusion that he expressed in paragraph 95 of his report (and accepted by the Secretary of State in paragraph 25 of his decision letter). What the Inspector said was this:

“95. Not only is it possible that the planned number of dwellings could be sited on less land than is currently allocated, but it is suggested by the Council for the Protection of Rural Essex that the number of Airport related dwellings may have been overestimated. Such a conclusion may be supported by the fact that only about 200 of the 975 approved dwellings on Sectors 1 and 2 of Woodlands Park have so far been completed. With such a substantial number of dwellings still to be erected there are many years worth of work available to the developer. I do not consider there is any sound reason to allow additional sites for the developer to cherry-pick the most profitable parts of the development. Accordingly, I do not place very great weight on (Wickford’s) financial risk, or the lack of the full utilisation of their installed infrastructure when weighed against the prospect of possibly saving some significant areas of greenfield land from development.”

63. Mr Dinkin submitted that the Inspector’s conclusion, that there were many years’ worth of work available to the developer, had missed the point, which was that the developer had already incurred the expense of providing the infrastructure for Sector 3 (i.e. drains and main services): see paragraph 33 of the Inspector’s report, where he had accurately summarised Wickford’s case on this aspect of the matter, as follows:

“33. The only prejudice would be to (Wickford) if the development were delayed. (Wickford) would then incur added financial risk and the under-utilisation of their installed infrastructure, whilst at the same time other competing sites are not being similarly delayed.”

64. Mr Dinkin also pointed out that the Inspector’s point about “cherry picking” was a point of his own making and was not a point that had been made or suggested at any stage during the inquiry. He submitted that, if it was a point that carried weight with the Inspector (as it clearly did), Wickford should have been given the opportunity to deal with it. He therefore suggested that it had been procedurally unfair for the Inspector to have relied upon this particular point as part of his decision-making on this aspect of the matter.
65. Mr Corner submitted that the Inspector had not misunderstood Wickford’s case (as could be seen from his accurate summary of it) and that the “cherry picking” point was no more than the Inspector’s way of saying that Wickford should not be given a greater area to develop than was necessary to meet its requirements for a significant number of years. He accepted that it was a somewhat unfortunate way of expressing that particular view, but submitted that, in any event, no prejudice had been caused, because the decision would have remained the same on this aspect of the matter: i.e. the Inspector (and, thus, the Secretary of State) would still have decided to give some (but not “very great”) weight to this particular consideration, when setting it against the prospect of saving significant greenfield land from development. I agree with those submissions and I also agree that the particular conclusion reached was clearly a reasonable one in the light of all the evidence.
66. Conclusion. For the reasons given above, I have come to the firm conclusion that this application must be, and is hereby, dismissed.