QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
(Sitting as a Deputy Judge of the High Court)
|ARROWCROFT GROUP PLC||Claimant|
|FIRST SECRETARY OF STATE||Defendant|
|TAMESIDE BOROUGH COUNCIL|
|FAIRFIELD GOLF & SAILING CLUB|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS N LIEVEN (at hearing) AND MR J LITTON (on judgment) (instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the First Secretary of State
MR J FINDLAY (instructed BY Denton Wilde Sapte, London EC4M 7WS) appeared on behalf of Fairfield Golf & Sailing Club
MR OWEN (at hearing) AND MISS S HANIF (at judgment) (instructed by Sharpe Pritchard, London WC1V 6HG) appeared on behalf of Tameside
Crown Copyright ©
Wednesday, 16 April 2003
"Land north of Manchester Road, east of Gorton Upper Reservoir, south of the Manchester to Guide Bridge railway and west of the proposed M66 motorway extension, comprising Denton and Fairfield Golf Courses, the Audenshaw Road NWW depot and tip, and the section of Audenshaw No 3 Reservoir west of the line of the M66, to be developed for business park, housing, golf course and public open space purposes, in accordance with the principles listed below."
There are then listed a number of principles by letter and I need read only principle (h).
"An 18 hole golf course (and club house) of at least equivalent quality to the existing Denton Golf Course to be retained/re-created on around 45 hectares of the western part of the site, as shown generally on the Proposals Map."
I should also refer to policy L3 which, so far as material, reads as follows:
"The loss or damage as a direct result of development, of land and facilities laid out and used for recreation and leisure purposes should be kept to a minimum.
Finally in relation to specific policies I will read policy L12:
"The Council will normally oppose the release of existing children's playgrounds, laid out informal playspaces, sports pitches, education establishments' playing fields, recognised and established informal public open spaces or parks for development.
Before leaving the terms of the UDP I should note that there were also a number of general objectives set out in the UDP and since considerable emphasis was placed on them by Ms Patterson it is right that I should note that they are there. I will read only briefly to give a flavour of those themes and objectives for the plan.
"5.1. Objectives must be established for the UDP which relate directly to the particular circumstances, problems and potential of the Borough at this time, taking into account the Government's Strategic Guidance and the existing Council policies, and which bind together as a cohesive overall strategy. These objectives can be grouped into four broad themes as shown below:"
There then followed lettered headings (a) to (d) setting out the four broad themes. Finally paragraphs 6.1 and 6.3, which are headed UDP Policies Explanatory Note, state as follows:
"6.1 The policies and proposals in this Plan, whether in Part 1 or Part 2, are not intended to operate independently or exclusively of each other. Whilst in some instances only a single reference to the Plan may be required in relation to a particular situation, in many cases two or more policies will be relevant.
6.3. Where more than one policy is material to the case, a scheme should as far as possible try to achieve consistency with each of these. Where conflict arises between policies, the relative weight to be given to each will need to be judged in the light of the overall objectives of the Plan and the particular circumstances involved."
"Having regard to the judgment of the Court and the evidence available to the Secretary of State at present, he wishes to invite representations on the following matters:
(a) whether the environmental information
provided in support of the planning application met the requirements of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, whether it was properly advertised and, if not, whether any interested party was prejudiced;
(b) whether the housing element of the scheme
conforms with Planning Policy Guidance Note 3 'Housing' in terms of the density of development, the preference for the re-use of previously developed land and car parking standards;
(c) the inclusion of Waterside Park in the
North West Development Agency's Regional Strategic Sites Consultation Draft and the weight that should be attributed to this; and
(d) the conformity of the Waterside Park
proposals with the emerging new Regional Planning Guidance.
The Secretary of State will also consider representations concerning any material change in circumstances which may have arisen since the original decision was issued, whether or not they pertain to the matters set out above."
6. The Secretary of State has had regard to S 54A of the 1990 Act, which requires him to determine the planning application in line with the policies of the Tameside Unitary Development Plan (UDP) unless material considerations indicate otherwise. He agrees with the Inspector (IR9.2) that the application scheme generally accords with Policy DEN 1 of the UDP. However he also considers that these proposals are inconsistent with some parts of DEN 1 and with other UDP policies in some important respects. He considers that these constitute critical flaws in the application for planning permission.
7. The Secretary of State has taken into account the absence of any provision for the relocation of the Fairfield Golf and Sailing Club, despite the Council's expressed wish in the written justification of policy DEN 1. The Secretary of State has also taken into account the Inspector's finding there was a shortfall in golfing provision in that area. The club, which would be lost, serves a local catchment area and meets social objectives in an area where combating social exclusion is a priority. The club has female and junior sections - both target areas that Sport England would like to see expanded. There is also a link with the Wright Robinson Comprehensive School, which has become a specialist sports college... He disagrees with the Inspector that the objection by Sport England should not carry great weight (IR 9.69) on the grounds that its predecessor organisation did not object to policy DEN 1 at the time of the UDP inquiry due to a misunderstanding that other policies would require the provision of a replacement golf course (IR 8.196).
8. The Secretary of State has also taken into account the requirement of DEN 1(h) that a golf course 'of at least equivalent quality' be provided to replace Denton Golf Club, but notes that the evidence submitted in support of the application that an inferior one might result from the current proposals [sic]. ...
9. He also considers that the proposals are contrary to policies L3 and L12 of the UDP about retaining leisure facilities. He disagrees with the Inspector's view that these policies should carry less weight than DEN 1. In his view these policies set out clear general principles on leisure provision which the current proposals do not meet. He considers that DEN 1 as a whole is consistent with policies L3 and L12 in that there was a requirement for a replacement golf course, but, as noted above these proposals do not make this provision.
10. The Secretary of State has also taken into account other material considerations as well as the development plan. In particular, he agrees with the Inspector that the proposals for housing fail to conform with Planning Policy Guidance note (PPG) 3 'Housing' (9.106-109). PPG 3 expresses a presumption that previously developed sites should be developed before greenfield sites. The Secretary of State considers that the proposal to build half of the houses on land that has not previously been developed is inconsistent with this policy, is a mis-application of PPG 3's sequential search approach, and is a serious flaw in the proposals.
11. The Secretary of State has taken into consideration the Inspector's view that doubt over whether the outline application would conform with PPG 3's advice on residential densities could be overcome by the imposition of a suitable condition (IR 9.109). The Secretary of State is cautious about this approach, but agrees that it may be possible to draft an appropriate condition. However he would also need to be satisfied that the appropriate density would also be accompanied by an acceptable standard of design.
12. The Secretary of State has taken into account the inclusion of Waterside Park in the North West Development Agency's (NWDA) further list of Regional Strategic Sites. He has also taken into account the extent to which the planning application and the NWDA's list conform with the existing and the emerging new Regional Planning Guidance (RPG). He considers that the NWDA's list is premature as the emerging revised RPG is trying to establish a criteria-based approach for the subsequent identification of regional strategic sites. He has also taken into account the fact that the adopted RPG (paragraph 5.10) has a preference for using recycled land for major employment sites. He has also taken into account the sequential approach in Policy DP 1 in the emerging RPG of preferring previously developed land instead of undeveloped land for meeting development needs. By contrast most of the Waterside Park site is not recycled land. He therefore considers that the site's inclusion in the NWDA's list of strategic sites should carry little weight and that the application is inconsistent with RPG's approach to using recycled land for major developments.
13. The Secretary of State agrees with some but not all of the Inspector's conclusions about the suitability of the site for a business park (IR 9.7-9.29). He agrees that the Waterside Park catchment continues to be in need of economic regeneration. (IR 9.12). He agrees that the proposal could generate a large number of jobs (IR 9.23). He accepts the Inspector's finding that many of these jobs would be taken by people who did not live locally, but he has also taken into account the developer's intention to work with the Council to identify steps to secure recruitment, training and employment opportunities for local people. However he does not agree with the Inspector's conclusion in IR 9.27 that developing this large greenfield site would act as a catalyst to bringing other brownfield sites back into use. In his view a development of this scale on a greenfield site could undermine the RPG's strategy of channelling development on to brownfield sites in Greater Manchester. He therefore disagrees with the Inspector's conclusion in IR 9.29 that there are no significant material considerations to weigh against the site's allocation as a business park in Policy DEN 1 of the UDP, even apart from the points about golfing provision and housing policy mentioned above." (My emphasis)
I should also read the conclusions of the Secretary of State at paragraph 18 of the decision letter as follows:
"18. In conclusion, the Secretary of State is under a duty under S 54A of the 1990 Act to determine this planning application in line [with] the policies of the Tameside UDP unless material considerations indicate otherwise. He considers that the proposal accords with policy DEN 1 in many respects, but fails to accord with this policy in respect of golfing provision. He considers that the proposals are also inconsistent with policies L3 and L12. He considers the housing element of the proposals to be inconsistent with national policy in PPG 3. He considers that the predominantly greenfield nature of the site is inconsistent with the policy of both the adopted and the emerging RPG of locating major employment development on recycled land. Although he agrees that the development could bring many jobs to the area, he considers that it might jeopardise the overall RPG strategy of channelling development on to brownfield sites within the Greater Manchester conurbation. The Secretary of State considers these inconsistencies to be serious flaws in the proposals and hereby refuses planning permission." (My emphasis)
That will suffice I hope to outline the factual context in which the present application is made to the court, but later I shall have to set out some more detailed facts in relation to some of the specific issues which are raised.
"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."
"He [the Secretary of State] has failed properly to consider the development plan as [a] whole and to make a proper interpretation of the policies, particularly the site-specific policy DEN1. As a consequence he has failed to consider whether the development proposed in the application before him does or does not accord with the development plan, as required by s54A."
"Section 18A has introduced a priority to be given to the development plan in the determination of planning matters. It applies where regard has to be had to the development plan. ...
By virtue of section 18A the development plan
is no longer simply one of the material considerations. Its provisions, provided they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is thought to be useful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission. It is distinct from what has been referred to in some of the planning guidance, such as for example in paragraph 15 of ... PPG1 ... as a presumption but what is truly an indication of a policy to be taken into account in decision-making. By virtue of section 18A if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance. Thus the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given.
Moreover the section has not touched the
well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it. ...
In the practical application of section 18A
it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse.
Counsel for the Secretary of State suggested
in the course of his submissions that in the practical application of the section two distinct stages should be identified. In the first the decision-maker should decide whether the development plan should or should not be accorded its statutory priority; and in the second, if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration. But in my view it is undesirable to devise any universal prescription for the method to be adopted by the decision-maker, provided always of course that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. In the particular circumstances of the present case the ground on which the reporter [equivalent to the Inspector] decided to make an exception to the development plan was the existence of more recent policy statements which he considered had overtaken the policy in the plan. In such a case as that it may well be appropriate to adopt the two-stage approach suggested by counsel. But even there that should not be taken to be the only proper course. In many cases it would be perfectly proper for the decision-maker to assemble all the relevant material including the provisions of the development plan and proceed at once to the process of assessment, paying of course all due regard to the priority of the latter, but reaching his decision after a general study of all the material before him. The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate." (My emphasis)
The other members of the Appellate Committee all agreed with Lord Clyde's speech and only Lord Hope of Craighead gave a separate speech of his own. In relation to section 18A of the Scottish Act he said this (at page 1450):
"It is not in doubt that the purpose of the amendment introduced by section 18A was to enhance the status, in this exercise of judgment, of the development plan.
It requires to be emphasised, however, that
the matter is nevertheless still one of judgment, and that this judgment is to be exercised by the decision-taker. The development plan does not, even with the benefit of section 18A, have absolute authority. The planning authority is not obliged ... 'slavishly to adhere to' it. It is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan will ensure that in most cases decisions about the control of development will be taken in accordance with what it has laid down. But some of its provisions may become outdated as national policies change, or circumstances may have occurred which show that they are no longer relevant. In such a case the decision where the balance lies between its provisions on the one hand and other material considerations on the other which favour the development, or which may provide more up-to-date guidance as to the tests which must be satisfied, will continue, as before to be a matter for the planning authority.
The presumption which section 18A lays down
is a statutory requirement. It has the force of law behind it. But it is, in essence, a presumption of fact, and it is with regard to the facts that the judgment has to be exercised. The primary responsibility thus lies with the decision-taker. The function of the court is, as before, a limited one. All the court can do is review the decision, as the only grounds on which it may be challenged in terms of the statute are those which section 233(1) of the [Scottish] Act lays down. I do not think that it is helpful in this context, therefore, to regard the presumption in favour of the development plan as a governing or paramount one. The only questions for the court are whether the decision-taker had regard to the presumption, whether the other considerations which he regarded as material were relevant considerations to which he was entitled to have regard and whether, looked at as a whole, his decision was irrational. It would be a mistake to think that the effect of section 18A was to increase the power of the court to intervene in decisions about planning control. That section, like section 26(1) [of the Scottish Act], is addressed primarily to the decision-taker. The function of the court is to see that the decision-taker had regard to the presumption, not to assess whether he gave enough weight to it where there were other material considerations indicating that the determination should not be made in accordance with the development plan." (My emphasis)
"Since development plans contain numerous policies, the local planning authority [and where appropriate the Secretary of State] must have regard to those policies (or 'provisions') which are relevant to the application under consideration. The initial judgment as to which policies are relevant is for the local planning authority to make. Inevitably some policies will be more relevant than others, but section 70 [of the 1990 Act] envisages that the Council have regard to all, and not merely to some of the relevant provisions of the development plan.
In my judgment, a similar approach should be
applied under section 54A. The local planning authority should have regard to the provisions of the development plan as a whole, that is to say, to all of the provisions which are relevant to the application under consideration for the purpose of deciding whether a permission or refusal would be 'in accordance with the plan'.
It is not at all unusual for development plan
policies to pull in different directions. A proposed development may be in accord with development plan policies which, for example, encourage development for employment purposes, and yet be contrary to policies which seek to protect open countryside. In such cases there may be no clear cut answer to the question: 'is this proposal in accordance with the plan?' The local planning authority has to make a judgment bearing in mind such factors as the importance of the policies which are complied with or infringed, and the extent of compliance or breach." (My emphasis)
Sullivan J then proceeded to quote from City of Edinburgh and said at paragraph 50:
"For the purposes of section 54A it is enough that the proposal accords with the development plan considered as a whole. It does not have to accord with each and every policy therein." (My emphasis)
The next authority to which I should refer on this issue is the decision of Ouseley J in R (on the application of C) v Camden London Borough Council  EWHC (Admin) 1116 (at paragraphs 162 to 165):
"162. There is, in my judgment, a single determination involved in the grant of planning permission subject to conditions; the imposition of particular conditions may itself be a determination in a given case, and certainly conditions and section 106 agreements can affect the 'accordance' of the determination with the development plan. The 'accordance' of this determination has to be 'with the plan'; it is not an accordance with each relevant policy of the plan. The language of section 54A can be contrasted in this respect with the language of the Town and Country Planning (Development Plans and Consultation) (Departures) Directions 1999 which defines a 'departure application' as one 'which does not accord with one or more provisions' of the development plan. The word 'relevant' is obviously implicit.
163. I agree with what Sullivan J said in R v Rochdale MBC ex parte Milne ... at paragraphs 48 to 49, subject to that caveat about the terms of the Departure Directions. ...
In the light of that decision I regard as untenable the proposition that if there is a breach of any one policy in a development plan a proposed development cannot be said to be 'in accordance with the plan'.
164. It may be necessary for a Council in a case where policies pull in different directions to decide which is the dominant policy: whether one policy compared to another is directly as opposed to tangentially relevant, or should be seen as the one to which the greater weight is required to be given.
165. ... There is a real risk that Mr Wolfe's suggestion that each individual relevant policy had to be examined against the proposal, and the implication that a breach of one necessarily shows a proposal out of accord with the development plan, would impose a legalistic straitjacket upon an appraisal which cannot sensibly be made in such a manner." (My emphasis)
"In considering whether or not the Secretary of State has acted contrary to any of these principles the materials on which the court may come to a conclusion are, in general, the inspector's report and the letter of the Secretary of State setting out his decision. In approaching this task it is no part of the court's duty to subject that decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph." (My emphasis)
The second issue
Such Regional Inward Investment Sites should be fully justified in terms of need and suitability and identified in consultation with the NWRA and GONW. Identification of the sites must advance and support:
urban renaissance;" (My emphasis)
There then follow a number of other bullet points ending with:
"this RPG's Core Development Principles and the Spatial Development Framework.
In addition, and in the interests of sustainability, all Regional Inward Investment Sites should be, or be designed to become:
well related to existing public transport infrastructure." (My emphasis)
There then follow a number of other similar bullet points, then:
"and should preferably be located:
on recycled land ..."
The reference to "Core Development Principles" in that RPG is a reference back to the heading "Core Development Principles" which includes policy DP1, which reads as follows:
"Policy DP1 Economy in the Use of Land and Buildings
Economy in the use of land and buildings is required.
New development and other investment in infrastructure and services should be located so as to make the most effective use of land, promote appropriate mixes of uses within a site and its wider neighbourhood, make efficient use of transport facilities and assist people to meet their needs locally.
Local authorities and others should ensure the continual identification and prompt appraisal of vacated land and buildings, make plans and take measures to ensure their speedy redevelopment and re-use. Buildings of very poor quality and little or no scope for re-use should be promptly removed to make way for new uses.
Development plans should adopt the following sequential approach to meeting development needs, taking account of local circumstances, the characteristics of particular land uses, and the Spatial Development Framework:
(i) the effective use of existing buildings
and infrastructure with urban areas, including the re-use or conversion of empty buildings (if they are sound and worthy of re-use, and/or of historic interest) - particularly those which are accessible by way of public transport, walking or cycling;
(ii) the use of previously-developed land, particularly that which is accessible by way of public transport, walking or cycling; and then
(iii) the development of previously undeveloped land, where this avoids areas of important open space, is well located in relation to houses, jobs and other services and infrastructure and is or can be made accessible by public transport, walking or cycling." (My emphasis)
It is important in this context to record that in paragraph 12 of his decision letter the Secretary of State expressly referred to "the sequential approach in policy DP1 in the emerging RPG of preferring previously-developed land instead of undeveloped land for meeting development needs." (My emphasis)
"... the Defendant has misdirected himself as to the meaning of Policy EC6 of emerging RPG ... That policy expresses a preference for Regional Inward Investment Sites to be located on recycled land. It clearly does not make it a requirement, and it is only one of a number of criteria, some of which are expressed as mandatory ('must') and others as directory or desirable characteristics ('should')."
"The Defendant thus misdirected himself and/or failed to take into account a material consideration and/or acted irrationally in failing to take into account that under the sequential approach to compiling the NWDA list of sites the GONW (as agent for the Defendant) had been consulted and did not object to the inclusion of Waterside Park upon the list of strategic regional sites."
The third issue
"The three criteria suggested in the dictum of Megaw J in In re Poyser and Mills' Arbitration ... are that the reasons should be proper, intelligible and adequate. The application of the first two of these presents no problem. If the reasons given are improper they will reveal some flaw in the decision-making process which will be open to challenge on some ground other than the failure to give reasons. If the reasons given are unintelligible, this will be equivalent to giving no reasons at all. The difficulty arises in determining whether the reasons given are adequate, whether, in the words of Megaw J they deal with the substantial points that have been raised or, in the words of Phillips J in Hope v Secretary of State for the Environment ... enable the reader to know what conclusion the decision-maker has reached on the principal controversial issues. What degree of particularity is required? It is tempting to think that the Court of Appeal or your Lordships' House would be giving helpful guidance by offering a general answer to this question and thereby 'setting the standard' but I feel no doubt that the temptation should be resisted, precisely because the court has no authority to put a gloss on the words of the statute, only to construe them. I do not think one can safely say more in general terms than that the degree of particularity required will depend entirely on the nature of the issues falling for decision.
Whatever may be the position in any other legislative context, under the planning legislation, when it comes to deciding in any particular case whether the reasons given are deficient, the question is not to be answered in vacuo. The alleged deficiency will only afford a ground for quashing the decision if the court is satisfied that the interests of the applicant have been substantially prejudiced by it. This reinforces the view I have already expressed that the adequacy of reasons is not to be judged by reference to some abstract standard. There are in truth not two separate questions: (1) were the reasons adequate? (2) if not, were the interests of the applicant substantially prejudiced thereby? The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is challenged on the ground of a failure to give reasons is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given. Here again, I disclaim any intention to put a gloss on the statutory provisions by attempting to define or delimit the circumstances in which deficiency of reasons will be capable of causing substantial prejudice, but I should expect that normally such prejudice will arise from one of three causes. First, there will be substantial prejudice to a developer whose application for permission has been refused or to an opponent of development when permission has been granted where the reasons for the decision are so inadequately or obscurely expressed as to raise a substantial doubt whether the decision was taken within the powers of the Act. Secondly, a developer whose application for permission is refused may be substantially prejudiced where the planning considerations on which the decision is based are not explained sufficiently clearly to enable him reasonably to assess the prospects of succeeding in an application for some alternative form of development [it is particularly that second limb on which Ms Patterson place reliance]..."
"13. ... where he [the Secretary of State] significantly disagreed was with the suggestion that bringing forward a large, and predominantly greenfield, site would act as a catalyst to bringing other brownfield sites into use. In fact he took the view that bringing this forward this site [sic] could undermine the RPG strategy in terms of encouraging use of brownfield land. This conclusion is obviously a rational one which was open to him and which he has explained.
14. The Claimant's argument here... is that the [Secretary of State] has failed to explain how the aim of the Development Plan can be met. Firstly, that is not the task of the [Secretary of State]... He has to explain what the reasons for rejecting this application are, not what the LPA's future option and strategies should be. Secondly, it is apparent from [the decision letter] that the LPA have to place more emphasis on finding brownfield sites, and not take the relative easy option of large Greenfield sites..."
B.2.2. Supply, which includes an estimate for windfalls
based on urban capacity studies, is estimated at 7212 over the plan period, 75% would be on brownfield sites. There is therefore a potential shortfall of sites to meet needs, and development at Waterside Park will be needed to help overcome this shortfall."
This can be compared to the approach to be taken under PPG3 (2000), from which I will read material parts. First, against the sidenote Background, it is said:
"The PPG provides advice on the role of the planning system in relation to housing policy. It updates and amends the policies contained in the 1992 edition. It records the Government's switch from a policy of 'predict and provide' to a policy of 'plan, monitor and manage' ... and the national target of securing by 2008, that 60% of additional housing should be provided on previously-developed land..." (My emphasis)
Turning to the substantive paragraphs in PPG3, first, paragraph 6:
"In some regions or sub-regions there may be concentrations of previously-developed land within one authority and a lack of it in neighbouring authorities. In such circumstances, the RPBs [Regional Planning Bodies] and structure planning/UDP authorities should work together to focus new housing development in areas where previously-developed land is available (or where there are existing dwellings suitable for re-use or buildings suitable for conversion) in preference to developing greenfield sites."
I move on to paragraph 8 which, so far as material, reads as follows.
"It is an essential feature of the plan, monitor and manage approach that housing requirements and the ways in which they are to be met, should be kept under regular review. The planned level of housing provision and its distribution should be based on a clear set of policy objectives, linked to measurable indicators of change..."
Next I will go to paragraph 23 which, so far as material, reads as follows:
"The national target is that by 2008, 60% of additional housing should be provided on previously-developed land and through conversions of existing buildings. Each region will propose its own recycling target to be set in RPG, which should contribute to achieving the national target. Structure plan/UDP and local planning authorities should adopt their own land recycling targets in development plans which will contribute to attaining the regional target and which are consistent with data from their urban housing capacity studies..." (My emphasis)
Under the heading Allocating and Releasing Land for Development, paragraphs 32 and 34 read as follows:
"32. In determining the order in which sites identified in accordance with the criteria set out in paragraphs 30 and 31 should be developed, the presumption will be that previously-developed sites (or buildings for re-use or conversion) should be developed before greenfield sites. The exception to this principle will be where previously-developed sites perform so poorly in relation to the criteria listed in paragraph 31 as to preclude their use for housing (within the relevant plan period or phase) before a particular greenfield site.
34. Sufficient sites should be shown on the plan's proposals map to accommodate at least the first five years (or the first two phases) of housing development proposed in the plan. Site allocations should be reviewed and updated as the plan is reviewed and rolled forward at least every five years. Local planning authorities should monitor closely the uptake of both previously-developed and greenfield sites and should be prepared to alter or revise their plan policies in the light of that monitoring. However, it is essential that the operation of the development process is not prejudiced by unreal expectations of the developability of particular sites nor by planning authorities seeking to prioritise development sites in an arbitrary manner."
Finally I read from paragraph 38 of PPG3:
"In considering planning applications for housing development in the interim, before development plans can be reviewed, local authorities should have regard to the policies contained in this PPG as material considerations which may supersede the policies in their plan... Where the planning application relates to development of a greenfield site allocated for housing in an adopted local plan or UDP [a reference to the sort of case with which this court is presently concerned], it should be assessed and a decision made on the application, in the light of the policies set out in this guidance. ..." (My emphasis)
"A key issue for the Region is to bring about the renaissance of the urban areas by encouraging economic growth and regeneration in a sustainable way. To achieve this we are promoting the renewal of the Region's urban areas by concentrating resources upon the selective refurbishment, conversion and redevelopment of outworn building stock, and the comprehensive improvement of older and unpopular neighbourhoods. At the same time, we are proposing to include a reduction in the annual rate of provision of totally new housing (unrelated to clearance) by 15%, and increase the proportion of housing provided on previously used (brownfield) land from 65% to 70%. The Proposed Changes give added weight to avoiding any premature release of greenfield land which would undermine attempts to promote the use of recycled land and the redevelopment of existing housing areas." (My emphasis)
"[The Secretary of State] states quite clearly that he accepts that density could be dealt with by condition. However, he makes clear that the terms of such condition would have to establish that the density of the housing would have to be achieved without unacceptably compromising the quality of the design."
So much is abundantly clear on a fair reading of paragraph 11 of the decision letter.
"Planning is not capable of being reduced to mathematical formulae. It is impossible, and probably undesirable, for a decision maker to try to ascribe precise 'weights' to different factors as if he was in a supermarket.
The fourth issue
"33. The Inspector had found, at para 9.144... that there continues to be a shortage of sites that in terms of location, scale and environment have the ability to attract outside investors who would be capable of beginning to fill a crucial gap in the economic base. He also found that the proposal would create a significant number of jobs for the locality that should increase over the longer term, and would be likely to act as a catalyst for, rather than as a barrier to, the regeneration of the appreciable number of smaller brownfield sites in eastern Manchester. Development of this site was essential for that strategy, as recognised by the UDP and the Inspector, as well as in accordance with the economic regional strategy produced by the NWDA in consultation with other regional stakeholders.
34. At no point in the decision letter is the issue of how else this important aim of the Development Plan can be achieved. If the Development Plan is not to be followed, the considerations for departing from it must be fully considered and addressed."
The fifth issue
The sixth issue
"102. In my opinion however it is now possible to set this debate to rest. The Court of Appeal took the opportunity in In re Medicaments and Related Classes of Goods (No 2) ... to reconsider the whole question.
[After setting out the relevant passages from that decision Lord Hope then continued as follows:]
103. I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to 'a real danger'. Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." (My emphasis)
"46. On the basis of these decisions it is in my view relevant as a starting point to have regard to such procedural safeguards as do exist in the decision-making process of the Secretary of State even if in the end, because he is applying his policy to which these controls do not apply, he cannot be seen as an impartial and independent tribunal. The fact that an inquiry by an inspector is ordered is important. This gives the applicant and objectors the chance to put forward their views, to call and cross-examine witnesses... Decisions were taken by ministers who so far as possible had no connection with the area from which the case came, and in respect of the decision officer who dealt with the case it was said... that he
'works separately from the casework team of which he is nominally a part, does not discuss the merits of the planning decisions before him with an individual either within or without GO East [the Government Office which was relevant in that case] is not copied into or involved in the preparation of the Regional Planning Guidance... or the exercise of any of the Secretary of State's powers of intervention under the Town and Country Planning Act, and only has before him the information which the inspector would have had at the inquiry into the particular appeal or called in application, together with any representations made after the close of the inquiries (all relevant parties are given the opportunity to comment on any such representations where they are material or raise new matters).'" (My emphasis)
(2) All representations, Ms Lieven informed me, made outside the inquiry process were copied to all parties in accordance with that policy. (3) However, those letters which were not copied (to which I will return) fell outside the policy of disclosure referred to in Alconbury because they did not raise anything material or new matters.
"3. I refer to the letters set out in Mr Manley's skeleton argument [on behalf of Tameside]. In respect of the letter dated 15/1/01, this letter was copied to me by the Government Office for the North West... [that must be a typing error; the letter on behalf of Tameside was in fact dated 5/1/01 and is at page 277 of the court bundle] I believe that a holding reply was sent on 15/1/01.
4. There were then three letters sent to the Treasury Solicitor dated 12 June, 2 July and 26 July 2001. I did receive each of these and passed them on to GONW. I am now aware that no response was sent. The reason for this was undoubtedly that both I myself and GONW were focussing on the question of whether the case would be fought, and at the end of the period discussing settlement with the parties. I realise that this was an oversight and I can only apologise both to Tameside and the court for our failure to reply.
5. The case was withdrawn from the list at the end of the July [sic] as the parties were in discussions. Ultimately the decision was quashed by consent on 27 November 2001.
6. I received no further letters from Tameside prior to the sealing of the Consent Order on 27/11/2001. I certainly did not, to the best of my recollection, receive their letter dated 12/10/2001, which is exhibited to the Witness Statement of Mr Davey in these proceedings. Had I received the letter I would certainly have faxed copies to my clients and filed it with all other correspondence. My clients confirm that they did not receive copies of that letter from any source. I closed the file relating to the first proceedings in May 2002, following payment of costs.
7. After the re-determination I received no further letters from Tameside relating to the issue, and perhaps wrongly I thought the point was no longer being pursued. I therefore did not follow up the query with GONW.
8. I am informed by GONW that they did not receive any post-inquiry ministerial correspondence prior to 26/10/2001 from any source. They did however receive the following:
a letter from the North West Development Agency to Mr John Prescott and Mr Nick Raynsford dated 5th July 2000;
a letter from Arrowcroft (the claimant) dated 16 October 2001 to Sally Keeble MP and one of 12 October 2001 from Insignia Richard Ellis (agents of the claimants) to Lord Falconer, no reply can be found to Insignia but Sally Keeble replied to Arrowcroft on 20 November 2001;
a letter from Delamere and Toxteth Residents to Mr Tony Lloyd MP to which Sally Keeble MP replied on 8/4/2002;
a number of letters from a local resident Mr Hall on a number of points including procedure on the first challenge and matters not relating to the application itself, replies were sent by an officer of GONW each time.
Three other letters were received, one from Gerald Kaufman MP on 5th January 2002 enclosing a letter from a constituent, to which no reply was sent. And two letters from Andrew Bennett MP making inquiries as to the procedure followed in referring back to parties after the decision was quashed in November 2001. There are no substantive written representations on the application from local MPs on the Government Office files."
As is usual with a witness statement there then follows a statement of truth and a signature from Mr Howes. Entirely properly no one suggested to me that they would wish to cross-examine Mr Howes or to file evidence in response to his statement. I therefore accept his evidence and I also accept his apology to the court. On that basis it is clear that no representations were made outside the inquiry process which were not copied to the other parties, save where, as I have said, there were letters which did not raise anything material or new matters. This was entirely in accordance with the policy referred to by Lord Slynn in Alconbury. Overall in my judgment, therefore, the facts are not such as would lead a fair-minded and informed observer to conclude that there was any real possibility of bias on the part of the Secretary of State. I therefore reject the submissions that were made in particular by Mr Owen and also in passing at least by Ms Patterson in relation to this part of the case.
The seventh issue