England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th November 2003

Mr Justice Lindsay:

Introduction

1. This is an application, under section 287 of the Town & Country Planning Act 1990 (as amended), which seeks to challenge the Huntingdonshire Local Plan Alteration in respect of which notice of adoption was published by the First Defendant, Huntingdonshire District Council ("Huntingdon"), on 18^th December 2002. The Claimant, Bedfordia plc ("Bedfordia"), whilst succeeding before an Inspector upon her Inquiry into objections to the Alteration plan in the sense that she recommended that its site should be allocated for housing, then found that Huntingdon declined to accept her recommendation. In essence Bedfordia, which appears by Mr Meyric Lewis, argues that Huntingdon was wrong not to adopt an Inspector's recommendation and that it failed adequately to explain why it did not. Huntingdon, which appears by Mr Purchas Q.C. leading Miss J. Clayton, argues that Huntingdon's conclusion not to allocate the site is invulnerable both as to the decision and the reasons for it.
2. This case was the second of two, heard in immediate succession, both concerned with the Huntingdonshire Local Plan Alteration. In the first, Fairfield Partnership –v- Huntingdonshire DC and Anor [2003] EWHC 2430 (Admin), I dealt in my judgment of 23^rd October 2003 with a case in which the claimant's argument, in effect, was that Huntingdon had been wrong in following the Inspector's recommendation; here the argument, as I have said, is that Huntingdon was wrong in not following her. So far as the law is concerned I am again required to address the approach proper to a Local Planning Authority when it comes to consider an Inspector's recommendations. However, as this case is the converse, so to speak, of Fairfield, I have had the benefit of the citation to me of cases other than those considered in Fairfield. Before I come to the law, though, I need to say something as to the planning history of the matter.

The Planning History

3. Bedfordia has an interest in land at Bedfordia Fields, Eaton Park, Eaton Socon, St Neots, Cambridgeshire ("the Site"). Between 7^th March 2000 and 4^th May 2001 Miss R.M. Whittaker ("the Inspector") had the conduct of a Public Inquiry into objections to the Deposit Draft of the Huntingdonshire Local Plan Alteration, Housing Land and Planning Obligations. In her report of 27^th February 2002 the Inspector set out the yet earlier planning history of the area. She had a good many objections to consider, amongst which was one concerning the Site. The amount and distribution of housing land was, as she recognised, one of the main policy issues she needed to address.
4. In dealing in detail with housing supply the Inspector first specified some 43 sites which Huntingdon had proposed for housing and as to which she endorsed that allocation. In doing so she said:-

"….. I have assumed that [Huntingdon] persist with the allocations which they propose in the Group Villages and which are not the subject of objections."

I shall return later to the subject of housing development in some villages. Making allowance for, inter alia, the 3136 dwellings which would represent appropriate development of those 43 sites, the Inspector foresaw a need for allocation of land for about a further 1479 dwellings. She then turned to where that land might be found.

5. Amongst the land considered was the Site, an area of 14.13 h.a. on the eastern edge of Eaton Socon between the urban edge of the town and the Great Ouse river. She described it as forming part of a swathe of open land that lies on both sides of the river dividing the built up areas of St. Neots. It was designated as open space in the adopted Local Plan and was in use as pasture. The objector sought only 3.04 h.a. of the 14.13 h.a. to be allocated as housing, dangling the prospect (as it seems to me) of the remainder being dedicated as public open space. Huntingdon opposed the allocation of any part of the Site to housing. The Inspector mentioned that as then-recently as 4^th April 2000 an essentially identical proposal had, on appeal, been dismissed on the ground that it would be harmful to the character and setting of Eaton Socon and would be contrary to the wider principles of the government's policies as to sustainable development. She acknowledged that the Site was "greenfield in nature", open in character and that, in one perspective, had "a countryside feel". Nonetheless she felt that a sensitively designed housing scheme on part only of the Site, one incorporating suitable planting and landscaping, could "soften the urban edge and enhance the overall quality of the countryside and enhance the enjoyment of the footpaths which run along the River Great Ouse". There was a potential, she felt, "for considerable enhancement of the urban edge". She referred to the then only recently revised government guidelines, PPG3 (March 2000) and the search sequence commended to Local Planning Authorities in paragraph 30 thereof. She said at OS 17.10:-

"In my assessment, the main issue in relation to this site is whether the acceptability of the site in terms of paragraph 30 of PPG3 and the rôle it could play in achieving reduced car borne trip generation is outweighed by the acknowledged harm that an allocation would cause to the countryside. I consider therefore that the site is worthy of consideration alongside other acceptable sites."

She therefore carried the Site, it having survived, so to speak, the first round, on to a second round. The 13 sites that survived the first round, including the Site, offered the prospect of some 2273 dwellings, 800 more than were needed. She whittled the 13 sites down to 11 but the Site was within the 11 as to which she recommended allocation for housing. In doing so she had concluded that urban extension was the most sustainable option available.

6. Huntingdon's Planning Officers prepared a detailed report headed "Local Plan Alteration: Proposed Modifications - Report by Head of Planning Services". It said that the Council was required to consider its response to each of the Inspector's recommendations. It said:-

"The Inspector's report is not binding upon the Council, but case law has established that an authority must have adequate reasons for rejecting an Inspector's views. In practice this means that authorities should accept an Inspector's findings unless there are very good reasons to reject them. To do otherwise risks legal challenges to the plan and further delays in getting the new policies adopted."

Unlike the position as it was in Fairfield supra, neither side before me argues that that sets the hurdle either too high or too low before a recommendation can be departed from. I shall therefore assume that the planning officers set the hurdle at the right height. The report considered the 11 sites on the Inspector's recommended list and recognised that whilst most of them needed to be allocated there were 2 cases in which the Inspector had not appropriately weighed up the material considerations. The Site was one of the two and of it the report said:-

"The other exception concerns Bedfordia Fields, Eaton Socon. The Inspector's recommendation that this site be allocated derives from her conclusion that its location in relation to the search sequence in PPG3 and its relative accessibility by non-car modes outweigh the harm to the countryside that would result from its development. The relevance of these material considerations can be accepted, but it is considered that the Inspector has given insufficient weight to the visual harm that would result from the loss of countryside in this location. The landscape value of keeping this land open has been recognised by previous Inspectors (as detailed in the Council's evidence to the Inquiry into the Local Plan Alteration), and is a matter to which considerable weight should be attached. Taking the various material considerations noted by the Inspector into account, it is considered that this weight is such as to count against the allocation of the site for development."

7. The Planning Officers' report had a detailed Schedule which set out in tabular form, with respect to each site required to be considered, the Inspector's recommendation, the proposed response suggested in the report and the reasons for that proposed response. As to the Site the proposal was not to accept the recommendation and detailed proposed reasons were given at some length to support that suggested non-acceptance.
8. Huntingdon met on 12^th June 2002 to consider its response to the Inspector's report. Members had the Planning Officers' report before them as Appendix C. It was resolved to adopt a Schedule of Decisions and Reasons – Appendix C – as the response. Huntingdon said that in a few cases it considered that adequate reasons existed for it not to accept the Inspector's recommendations and gave the Site as amongst those few cases. After summarising the passage I have cited from OS17.10 Huntingdon resolved upon reasons as follows:-

"The Council acknowledges the relevance of these material considerations, and accepts that they pull in different directions. However, it gives greater weight than the Inspector to the visual harm that would result from the loss of countryside in this location.

The landscape value of keeping this land open has been recognised by previous Inspectors (as detailed in the Council's evidence to the Inquiry into the Local Plan Alteration), and is a matter to which the Council attaches considerable weight. Taking the various material considerations noted by the Inspector into account, it considers that this weight is such as to count against the allocation of the site for development."

Those "various material conditions" no doubt included the prospect of a dedication of the rest of the Site.

9. On 7th October 2002 Bedfordia's planning consultants lodged a written objection to Huntingdon's proposal not to act on the Inspector's recommendations. It is unnecessary for me to set them out save to the extent that they grow into Mr Lewis's submissions and those I shall deal with below.
10. When all objections were collected there was, again, a Report by the Head of Huntingdon's Planning Services giving their planning officers' suggestions as to an appropriate response to them. Under a sub-heading of "Sites that generated the greatest volume of comments: Summary of Main Issues" the Officers' Report gave a summary as to the Site, as follows:-

"A Bedfordia Fields, St. Neots

A1 A significant proportion of all the representations received constitute expressions of support for the Council's intention not to allocate this site. Common concerns raised include fears about increased flood risks, traffic congestion and the loss of a valued tract of open land.

A2 However, Members should note that the Environment Agency is satisfied that the development would not result in increased flood risk, and adequate highway capacity is considered to be available. It is the visual harm arising from the loss of countryside which underpinned the Council's intention not to allocate the site (in the context of sufficient other sites being available so as not to require the additional houses that this site would provide).

A3 The one objection to the Council's position comes from the promoters of the site, who argue that the Inspector has weighed the various issues appropriately in reaching her recommendation that the site should be allocated; moreover, they consider that if a 'surplus' of houses exists, sites in other locations should be deleted before this one, due to its relatively 'sustainable' location (see pages 92-94 of Annex 2 for their arguments and the proposed response)."

The report shewed that with respect to Huntingdon's proposal not to allocate the Site for housing 244 received responses had supported that and only one had objected. The Officers said:-

"Even if the public consultation reveals local opposition to particular recommendations that the Council has proposed to accept, that in itself would not be an adequate basis for now rejecting the recommendations concerned. Adequate reasons need to reflect substantive and relevant issues that justify going against what the Inspector has said."

and:-

"Members will see from Annex 2 that none of the objections are considered sufficient, in legal terms, to justify further Proposed Modifications to the Alteration. In other words, no arguments have been made that merit any changes to the Proposed Modifications that Council approved on 12 June; and none of the responses justify accepting recommendations made by the Inspector which the Council was proposing not to accept.

The suggested reasons for these conclusions are set out in Annex 2 (alongside the relevant points made by objectors)."

11. In the tabular Annex 2 the Officers summarised Bedfordia's reasons for its objections and gave against each a suggested response for adoption by Huntingdon.
12. On 14th November 2002 Huntingdon met. A number of Councillors expressed concern over the Inspector's conclusions. They had the Officers' Report before them. Huntingdon then resolved that no further Public Local Inquiry was justified and, as the Officers' Report had suggested, that no further modification should be proposed to the Huntingdonshire Local Plan Alteration, meaning that matters should stand as resolved upon on 12^th June.
13. Whilst, as I read the minutes of 14^th November, Huntingdon did not expressly adopt the reasons which the Officers had proposed in their report which had been put before the meeting that day, it is accepted in Mr Lewis's argument that the reasons adopted and acted upon on 14^th November were those in that Officers' Report. A Notice of Adoption of the Alteration (not in my papers) was published on 18^th December 2002.
14. On 27^th January 2003 Bedfordia issued a Claim Form against Huntingdon and, as Second Defendant, against the First Secretary of State (who has taken no part in the proceedings). It seeks an Order quashing the Huntingdonshire Local Plan Alteration.
15. I shall return to the detailed objections and reasons when I deal with Mr Lewis' submissions but for the moment that suffices as to the planning history and I turn to the law.

The law

16. Section 287 of the 1990 Act, as amended and so far as material, provides in its subsections (1) and (2) as follows:-

"287. (1) If any person aggrieved by a unitary development plan or a local plan [minerals local plan or waste local plan] or by any alteration or replacement of any such plan or structure plan, desires to question the validity of the plan or, as the case may be, the alteration …. or replacement on the ground –

(a) that it is not within the powers conferred by Part II, or

(b) that any requirement of that Part or of any regulations made under it has not been complied with in relation to the approval or adoption of the plan or, as the case may be, its alteration, repeal or replacement,

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

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

(a) ……;

(b) if satisfied that the plan or, as the case may be, the alteration, … or replacement is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or of any regulations made under it, may wholly or in part quash the plan or, as the case may be, the alteration …. or replacement either generally or in so far as it affects any property of the applicant."

Relevant subsidiary legislation is to be found in the Town & Country Planning (Development Plan) (England) Regulations 1999 which provide, at Regulation 27 as follows:-

"27. (1) Where a Local Planning Authority cause a Local Inquiry or other hearing to be held for a purpose mentioned in Regulation 26 (1), the Authority shall, after considering the report of the person holding the inquiry or other hearing, prepare a statement of –

(a) the decisions they have reached in the light of the report and any recommendations contained in the report; and

(b) the reasons for any of those decisions which do not follow a recommendation contained in the report."

Regulations 28 and 29 include the following:-

"28. (1) Where objections have been made to a plan or proposals in accordance with these Regulations and not withdrawn and the Local Planning Authority do not cause a Local Inquiry or other hearing to be held, the Authority shall prepare a statement of their decisions as respects all the objections and their reasons for each decision."

"29. (6) Where objections have been made to proposed modifications in accordance with this Regulation and not withdrawn and the Local Planning Authority do not cause a Local Inquiry or other hearing to be held, Regulation 28 shall apply to the consideration of the objections as it applies to the consideration of objections to statutory plan proposals."

17. The argument before me has proceeded on the basis that if the reasons given for Huntingdon's decision are inadequate in the light of the authorities and the regulations then there is, without more, a non-compliance within section 287 (1) (b) such as may trigger a quashing under section 287 (2).
18. I shall not attempt to summarise in one or two sentences what is required of the reasons given in order for them to be adequate but first I shall repeat paragraphs 43-50 of my judgment in Fairfield supra and next I shall add observations derived from authorities cited to me here, several of which were not cited in Fairfield.
19. Thus, where the Local Planning Authority ("LPA") is, in effect, both advocate and judge (as proposing no allocation to the Site and judging the Inspector's recommendation to the contrary) it is under a particular duty to weigh the issues thoroughly, conscientiously and fairly – see Stirk –v- Bridgnorth DC (1996) 73 P & CR 439 CA at 444; Peel Investments (North) Ltd –v- Bury MBC [1999] PLCR 307 CA at 318.
20. The LPA's reasons should show that it has grappled with the Inspector's reasoning, shewing that the latter has been duly understood and, at least in essence, why it is rejected – Bovis Homes Ltd –v- New Forest D.C., per Ouseley J., 25^th January 2002 CO/4853/1999 at paragraph 83 (although, as to "grappling" see Fairfield at paragraph 45). It cannot be said that a recommendation has been considered if it was plainly misunderstood – Hall Aggregates (South Coast) Ltd –v- New Forest DC (1996) 72 P & CR 567.
21. The degree of particularity required of the reasons depends on the nature of the issue falling for decision – see Miller & Ors –v- Wycombe DC [1997] JPL 951 at 957 CA and the cases there cited. Matters of "pure" planning judgment, in particular, may be incapable of, and hence not require, any elaboration – Save Britain's Heritage –v- No. 1 Poultry Ltd [1991] 1 WLR 153 at p 158; WDA infra at p. 199.
22. It is likely to suffice to undermine reasons given if it can be shewn that the LPA had a closed mind, though that state of mind requires to be proved – Bovis Homes paragraphs 107-113. In an appropriate case it can suffice for an LPA to reiterate its own earlier reasons that oppose the Inspector's conclusion – Bainbridge –v- Hambleton DC (1999) 80 P & CR 61 at 69; WDA –v- Carmarthenshire CC (1999) 80 P & CR 192 CA – without any elaboration but an LPA that does only that gives ammunition to those who urge that its mind was closed – see Fairfield paragraphs 46 and 47; Bovis Homes supra at paragraph 111; Oxford Diocesan Board of Finance (1998) PLCR 370 at 381-382.
23. So far as following governmental guidelines is concerned, an LPA's decision which does not accord with some such a policy is not, on that account only, to be taken to be wrong; to have regard to a policy is not necessarily to follow it although clear reasons can be expected of an LPA that elects not to – Gransden & Co Ltd and Anor –v- Secy of State for the Environment and Anor (1989) 54 P & CR 86 at p 94 per Woolf J.. The Court of Appeal dismissed the appeal in Gransden. Government policy, as exemplified in PPG3, sets out a search sequence which starts with the re-use of previously developed land, followed by urban extensions and then new development. An assessment for suitability for housing should include consideration of the physical and environmental constraints on the development of land – PPG3 paragraphs 28-32.
24. It is to be remembered, too, though, that where the decision is one of "pure" planning judgment, it will not be possible to prove the Inspector's view, objectively regarded, to be wrong nor the LPA's view, so regarded, as right and the LPA is not to be expected to do that – Gillenden Developments Co Ltd –v- Surrey C.C. (1997) 74 P & CR 119 CA at 125; Oxford Diocesan Board supra at p 382 and see Fairfield paragraph 45 – although, depending on the nature of the issue, a due regard to objective criteria can be required – Peel Investments supra at 319-320; Fairfield at paragraph 43. Finally, it is the LPA that is entrusted with taking the decision – Bainbridge supra at 70-71; as between it and the Inspector it is the LPA that has the last word – WDA supra at 198. The weight to be given to a material consideration – the term used in section 70 (2) of the 1990 Act – is a matter for the LPA – Tesco Stores –v- Environment Secretary [1995] 1 WLR 759 HL at 764 g and 784; where the matter becomes merely one of the appropriateness of a weighting then the Courts will not intervene unless the decision is "Wednesbury unreasonable" – Associated Provincial Picture Houses Ltd –v- Wednesbury Corpn [1948] 1 KB 223; Tesco Stores supra at 764 h; 780 f-h.
25. I shall attempt to keep these precepts in mind when I turn, as I next do, to Mr Lewis' detailed grounds of attack on Huntingdon's decision of 14^th November 2002 and on its reasons given for that decision.
26. Although Mr Lewis's argument in its skeleton form was expressed at a fairly high level of generality, it became focused, in the course of oral argument, on a number of quite specific issues, to which I shall turn.

Buckden, Fenstanton & Ramsey St. Mary

27. Originally Huntingdon had proposed to allocate various village sites for housing but the Inspector recommended that they should be deleted on "sustainability" grounds – see, for example, PPG1 paragraphs 4 and 5. Whilst Huntingdon considered and accepted that recommendation in general, there were 3 cases in which it did not, namely in respect of three sites at, respectively, Buckden, Fenstanton and Ramsey St. Mary. The reason why the recommendation, whilst considered, was not accepted in these three cases was not because of Huntingdon having some other view than had the Inspector on sustainability but simply because all three already had planning permission for housing. Their deletion would, in Huntingdon's view, have had no practical effect; the building of houses on them could not, in practical terms, be stopped and it was, in turn, thus appropriate that the number of dwellings that would emerge upon them should be counted towards the number required to be allocated in the exercise which both the Inspector and Huntingdon were conducting. At Buckden building was well advanced; at Fenstanton it was underway as it was also at Ramsey St. Mary.
28. The Inspector noted that planning permission had been granted as to those three sites but nonetheless recommended their deletion. In doing so, of course, she indirectly increased the number of dwellings which she took to be required to be sought on other sites and the deletion would have tended to strengthen the case for the Site being allocated to housing, an allocation she had, in any event, been disposed to recommend. Conversely, allocation of the three sites would tend to make the Site's allocation more vulnerable.
29. Mr Purchas argues that Huntingdon were right to reject the suggested deletion of these sites for the reason it expressed, namely that deletion served no practical purpose. Nor was it that planning permission for the sites had been granted so as to evade the Inspector's later recommendations; that is not suggested. Mr Lewis accepts that for the existing planning permissions to be revoked would require a formal order and would be likely to require compensation to be paid.
30. As I had difficulty in grasping what practical purpose their deletion would have I invited Mr Lewis to reinforce his argument by adding to it in writing overnight, which he helpfully did. Nonetheless, and bearing in mind the approach required by the authorities to which I have referred, I am quite unable to find fault in Huntingdon's decision as to these village sites nor any inadequacy in the reasons given in respect of that decision. Deleting them would serve no practical purpose and not to count the number of dwellings they would provide towards the dwellings to become available would have been to ignore the very probable reality of the number being achieved.

Yaxley

31. Not all the sites recommended by the Inspector for allocation to housing were required. That was so for three reasons, only one of which (counting the dwellings available on the three village sites I have described) has been contested, albeit unsuccessfully, by Bedfordia. There was still a need to find more dwellings than contemplated by the Structure Plan but not as many as the Inspector had had in mind. Huntingdon quite properly wished to avoid a surplus – see PPG3 paragraph 30. It thus became appropriate not to allocate all 11 of the sites which the Inspector had identified for allocation. Of the 11, 2 already had planning permission; to delete them would have had no practical effect in reducing the surplus as the dwellings on them would be built. That left 9 as targets for the necessary reduction. Of the 9 one, Somersham, was, for reasons not criticised by Bedfordia, selected as the first to drop out. That left 8, but still a surplus. Huntingdon refused allocation to two of the eight, of which, of course, the Site was one. One of the survivors for allocation was a site at Yaxley.
32. It is Bedfordia's case that Yaxley should have been refused allocation ahead of the Site being refused it. Huntingdon's reasons for giving Yaxley a precedence in terms of sustainability ahead of the Site was that Yaxley was to be treated "as of equal status to the market towns in the settlement hierarchy". That, argues Bedfordia, was quite wrong.
33. Huntingdon resists that both on the law and on the facts. As to the facts, the Inspector herself at her 2.4.914 spoke of Yaxley, a Rural Growth Village, (RGV), as being "by far the largest centre outside the market towns and", with my emphasis "is included with them as the main focus for development in policy STR1", the earlier Huntingdonshire settlement hierarchy later incorporated into the Local Plan Alteration policies promulgated in June 2002. With the market towns it "offer[ed]", she said, "the highest level of services and facilities and so afford[ed] the possibility of fostering a more sustainable pattern of development". Yaxley, she said, was "by far the largest village outside of the market towns in terms of population, services and facilities. It is close to Peterborough, which has a far greater range of facilities and services than any of the market towns in the district". She recognised that Yaxley was not a town but said "In reality Yaxley is a large settlement specifically identified as being suitable for a sizeable amount of growth ….. In these circumstances I am content that development on the edge of the village is capable of being considered as an urban extension. Bearing in mind the public transport links to Peterborough, the village can be said to comprise a node around good public transport".

That is a little confusing as in the search sequence in PPG3 "urban extensions" come next ahead of such "nodes" but there is no reason why the Inspector should not have been taken to be saying that Yaxley not only could be treated as an urban extension in the search sequence but also that it had the additional benefit of comprising such a node.

34. Huntingdon accepted the Inspector's view that Yaxley, as, in effect, an urban extension, should be accorded equal status in the hierarchy to developments in the market towns. I see no way in which Bedfordia, generally critical of Huntingdon's not following the Inspector's recommendations, can be hostile to Huntingdon, adopting the Inspector's view, treating Yaxley as being of that effective equal status. In any event it cannot possibly have been unreasonable of Huntingdon (either in the Wednesbury sense or at all) to adopt what could fairly be taken to be the Inspector's view on that issue.
35. If, then, Yaxley and the Site could properly be taken to be on an equal footing in the hierarchy, two further points emerge. Firstly, as to the Site, Huntingdon had a particular reason not to allocate it for housing, namely that it took the view that the Inspector had given insufficient weight to the visual harm that would result from the loss of countryside in its location. That issue, if one had to devise a spectrum running from matters entirely of fact to those of pure planning judgment, would be at or towards the latter end. Huntingdon, on the authorities as I have summarised them, would therefore have had considerable freedom of decision with respect to such an issue. The Inspector herself had recognised that visual deterioration was a consideration applicable to the Site. The weight to be attached to it was essentially a matter for Huntingdon. The Site thus had a blight of which Yaxley was free and there was reason for Huntingdon to prefer to allocate Yaxley rather than the Site. It is not as if no reasonable person could attach weight to the potential visual impairment were the Site to be developed; the earlier Appeal Inspector had reported on 4^th April 2000 that: -

"In my opinion, the housing would initially appear as an incongruous and rather awkward extension to the urban area and, whilst I accept that landscaping might in time soften the impact, I am firmly of the opinion that, even in the longer term, it would not reduce the impact to acceptable levels. In my view, the character and setting of Eaton Socon would be seriously harmed by the proposed housing and the intrinsic value of the site as an area of open space on the edge of the settlement would be significantly reduced."

36. There was, too, a disadvantage that the Inspector herself mentioned as to further allocation in the St. Neots area, an area that for this purpose would include the Site. St. Neots was approaching saturation. Already 1514 dwellings were provided for and the Inspector was considering 3 sites in the area, of which Bedfordia (90 dwellings) was one, the three together offering a further 345 dwellings. The Inspector said "…. there must be some concern as to the ability of the town to absorb development on this scale". In the event the Inspector retained the Site but dropped another of the 3, which offered 120 dwellings, but the Site (if comparison had to be made with Yaxley, which was unaffected by any such concern) was in a relatively poor position.
37. Moreover, even if Yaxley were not seen to have the advantage over the Site which I have mentioned and even if it was not free of that disadvantageous concern then, secondly, the law suggests that within a given tier of the hierarchy (on the basis Bedfordia cannot succeed in saying that the Site and Yaxley were not effectively within the same tier) it is for the LPA to choose with relative freedom on the basis that PPG3 gives guidance rather than so fettering the LPA that it is obliged to pick one rather than the other within the very same tier – consider Laing Homes Ltd –v- Secretary of State for Transport and Ors [2002] EWHC 1967 (Admin) 1^st October 2002 paragraph 3 and Bellway Homes Ltd –v- West Berkshire Council [2003] EWHC 105 (Admin) 4^th February 2003 paragraphs 47 and 48.
38. In my judgment Bedfordia's argument under this heading fails.

Little Paxton

39. The argument as to this site was not pressed.

An open mind

40. It does not of itself signify an absence of open-minded consideration if, despite an Inspector's recommendation, a Council reverts or adheres to the view that it had had before the recommendation. Still less is adherence to the earlier view vulnerable if (as was the case as to Huntingdon's assessment of the visual impairment likely to be caused by development of the Site) the adherence is based on an issue of planning judgment, very much an issue to be left to the LPA, and where the reasonableness of the Council's view was bolstered by the earlier report of an Appeal Inspector. Moreover, Huntingdon was well aware of there being factors in the Site's favour; it spoke of the relevant considerations pulling in different directions. Beyond Bedfordia's mere assertion there was, in my judgment, nothing material supporting a conclusion that Huntingdon had a closed mind. The care with which matters were reported upon and in which the considerations and counter-considerations were all set out all point (unless the whole process was a charade, which was not suggested) to genuine consideration have been given to the planning issues that arose. Moreover, as very many of the Inspector's recommendations were accepted but some, for reasons given, not followed, the arithmetic alone suggests neither a slavish adoption nor an entrenched dismissal of her views. I am unable to fault Huntingdon on this ground. I add that it is not said that its reasoning lacked clarity.

A prospective dedication of parts of the Site

41. Bedfordia proposed to the Inspector that it would dedicate 11.09 h.a. of the Site as public parkland. It was not expressed but no doubt was implied as a proposal contingent upon the rest of the Site being allocated to housing but there is nothing that bars the dedication, if Bedfordia wishes to make it, even if allocation is withheld. The Inspector said:-

"This offer would be a welcome contribution towards achieving the Council's open space policies in the adopted Local Plan. Although in itself it would not justify the allocation, it contributes to the argument in favour of allocating the land."

42. Huntingdon's clear written response in their Officers' report specifically referred to the Inspector's view that the fact or possibility of a dedication did not in itself justify allocation. The point was plainly considered; the weight to be attached to it was a matter for Huntingdon. The unchallenged witness statements of Councillor Derek Holley M.B.E. and of Dr M.S. Bingham, Policy Team Leader of Huntingdon's Planning Division, shew that the point was, indeed, considered and I have no reason to think that it was not.
43. I am unable to fault Huntingdon's decision or its given reasons under this heading.

The inadequacy of Huntingdon's reasons

44. The clarity and intelligibility of the reasons is not criticised but their adequacy is. Save in one respect which I shall deal with next, where Bedfordia's argument before me condescended to detail I have already dealt with it. The remaining respect is this. Before its meeting of 14^th November 2002 Huntingdon took legal advice as to the circumstances in which and the extent to which it would be respectively bound to accept or free not to accept the Inspector's recommendations. The very taking of the advice militates against minds being closed but, amongst the advice received, was that "adequate reasons are unlikely to exist to delete any particular site and replace it with a less sustainable site – that is one lower down the search sequence". Bedfordia's argument thus seems to be that as there was a deletion of the Site and the replacement of it by less sustainable ones, then the reasons given must have been inadequate. That argument is fraught with several weaknesses but I shall deal with only one, namely that there was no replacement of the Site by less sustainable sites in an unreasoned way. Buckden, Fenstanton and Ramsey St. Mary, though lower in the hierarchy of sustainability than the Site, were allocated because permission, as I have explained, had already been given for housing, building was already underway and deletion had no practical effect. It would have been fanciful to act on the basis that houses would not be built there when plainly they had been or were being erected. As for Yaxley, it was, for the reasons given both by the Inspector and Huntingdon, not to be treated as less sustainable than the Site. I have already looked at those reasons and have found no error of law in them. There is nothing in this head of complaint.

Conclusion

45. I have found no material error in the challenged decisions and reasons either by way of the relatively specific issues I have expressly dealt with above or in more general ones that I have not otherwise referred to. In the circumstances I do not need to go on to wider questions such as how the discretion under section 287 supra should be exercised nor how far, if at all, it would be appropriate to quash only the decisions in issue rather than other parts of the relevant policy. Instead I simply dismiss Bedfordia's claims.