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
		21st November 2003

Mr Justice Richards:

1. The claimants are house builders and developers with landholdings in various parts of the north west of England. They are members of the North West Housing and Land Consortium ("HLC"). They challenge by way of judicial review the decision of the First Secretary of State to issue Regional Planning Guidance for the North West ("RPG13") on 31 March 2003.
2. The specific targets of the challenge are four policies of RPG13, namely policy SD4 (on the treatment of North Cheshire), policy UR7 (on regional housing provision), policy UR4 (on setting targets for the recycling of land and buildings) and policy DP1 (on economy in the use of land and buildings).
3. In relation to the first three of those policies the main basis of the claim is procedural unfairness, in particular breach of legitimate expectation. There is also a reasons challenge in respect of policy UR4. In relation to policy DP1 the basis of the claim is irrationality.

Regional Planning Guidance

4. The function of RPG is set out in Planning Policy Guidance Note 11 (PPG11) as follows:

"1.2 … RPG sets out broad strategic policies at the regional level where there are matters which, though not of national scope, apply across regions or parts of regions and need to be considered on a scale wider than the area of a single strategic planning authority.

1.3 The main purpose of RPG is to provide a regional spatial strategy within which local authority development plans and local transport plans can be prepared. It should provide a broad development strategy for the region over a fifteen to twenty year period and identify the scale and distribution of provision for new housing and priorities for the environment, transport, infrastructure, economic development, agriculture, minerals and waste treatment and disposal. Its task is not to provide a regional checklist of everything that should be covered in a development plan. By virtue of being a spatial strategy it also informs other strategies and programmes …."

5. Its importance in guiding and informing local planning authorities in the preparation of development plans is underpinned by statute. By s.31(6) of the Town and Country Planning Act 1990, authorities are required to have regard to RPGs in formulating the general policies contained in structure plans. Corresponding duties are imposed in relation to unitary development plans and local plans by s.12(6) of the 1990 Act and reg.20 of the Town and Country Planning (Development Plan) (England) Regulations 1999. The guidance in an RPG may also be a material consideration in individual planning decisions.
6. The formulation of RPG itself, however, is not governed by statute. It is the subject of a non-statutory procedure published by the Secretary of State in PPG11. The procedure involves the following main stages (see PPG11, para 2.13):

i) The Regional Planning Body (or "RPB"), in consultation with the Government Office (or "GO"), draws up a project brief for RPG review and holds a public conference to seek agreement.

ii) The Regional Planning Body, in co-operation with the Government Office and other stakeholders, develops and refines options into a draft RPG.

iii) The draft RPG is submitted to the Secretary of State and published for consultation. Written representations are invited and the timing of the public examination before an independent panel appointed by the Secretary of State ("the Panel") is announced. Written responses are sent to the secretary of the Panel.

iv) Following receipt of responses, the Panel, in consultation with the Regional Planning Body and Government Office, agrees a list of matters to be discussed and tested at the public examination and invites participants to the public examination.

v) The selected matters in the draft RPG are then tested at the public examination in front of the Panel.

vi) The Panel reports to the Secretary of State.

vii) Following the Panel's report the Secretary of State publishes a further version of the RPG, incorporating his proposed changes with a statement of reasons. There is then a further period of consultation.

viii) Having considered any representations, the Secretary of States issues the RPG in its final form.

7. Stakeholders whose participation in the process is said to be essential include house builders (para 2.7). In particular, the Regional Planning Body is expected to work with housing stakeholders in preparing the housing strategy, which is a key component of the regional spatial strategy (chapter 5, in particular paras 5.1-5.6).
8. The claimants place particular stress on the role of the public examination as a means of testing the draft RPG prepared by the Regional Planning Body. Paras 2.17-2.19 of the main text of PPG11 state:

"2.17 The public examination is into the draft RPG as submitted by the RPB. The RPB should not then make significant changes to it or introduce major new material in the lead up to or during the examination. To do so would probably result in the examination having to be postponed to allow everyone time to consider the revised draft RPG or new material (see Annex A). However, before or during the examination, an RPB may wish to suggest more minor changes to the Panel in the event of new information becoming available, national policy developments or in response to comments made by other stakeholders on the submitted RPG.

2.18 The main purpose of the public examination is to provide an informal opportunity for discussion and testing, in public and before a Panel appointed by the Secretary of State, of selected matters arising from consideration of the draft guidance. A public examination into RPG is not an examination of all the submitted proposals nor is it a hearing of all objections. Anybody is free to make representations, although there is no right to be heard. The selection of matters and participants is for the Panel. The RPB and GO should be invited to all sessions and the Secretary of State expects that the RDA would normally be invited as well.

2.19 The public examination ensures there is public debate on selected issues where an examination could usefully provide further information. It tests the justification for the selected proposals and policies. It provides the main basis on which the Secretary of State can decide whether any changes need to be made to the draft guidance before it is issued as RPG. The public examination helps to increase the weight that can be given to RPG as a material consideration and makes decisions based on RPG more secure in the event of appeals or legal challenge. Above all, together with the resulting report of the Panel on the issues discussed at the examination, it significantly increases the transparency of the process by which draft RPG is turned into final guidance. For further details see Annex A."

9. Annex A to PPG11 contains a guide to public examinations. Para 17 of the annex states that the main criterion for selecting participants will be the significance of the contribution they can be expected to make to the discussion. Para 18 states:

"18. As the public examination is not a forum for hearing all representations, there is no need to invite all those who objected to the proposals. Nor will it normally be necessary or appropriate to invite everyone who objected or made representations in respect of the selected matters. The Panel will need to ensure that it invites sufficient participants to ensure an effective examination of the strategic issues. This may involve inviting participants who have not made representations in order to contribute to an understanding of the strategic issues. The aim should be to select participants who between them represent a broad range of view-points and have a relevant contribution to make thereby enabling an equitable balance of differing viewpoints to be achieved in discussion …."

10. As to the conduct of the public examination itself, para 43 of Annex A gives the following guidance:

"43. It is important that the public examination is conducted in an informal manner to create the right atmosphere for discussion. If possible a round table arrangement should be followed. Debate of the issues rather than the reading out of prepared position statements should be encouraged, particularly since written statements should have been circulated well before the examination …. The Panel should encourage discussion on the key points of contention in relation to each issue and sub-issue identified in the list of matters. In exploring these points the Panel will need to go beyond submitted material and lead the debate. The Panel should, therefore, pursue inquisitive chairing rather than allow a general airing of views which would not be a productive use of examination time. Some participants may wish to present their views on the selected matters through an agent or adviser. However, it is essential that this does not undermine the informal nature of the public examination. Legal representation should not be necessary. Formal legal advocacy and cross-examination is inappropriate to an informal "round table" type discussion. The Notes for Participants should make this clear. In conducting the discussion the Panel should ensure there has been sufficient discussion of the selected topics and sufficient information obtained so that properly informed recommendations can be made about them."

11. Central to the present case is what happens after the Panel has reported to the Secretary of State on the outcome of the public examination. Para 2.20 of the main text states:

"2.20 The report of the Panel which held the public examination will be submitted to the Secretary of State. The Panel report will form an important basis for the Secretary of State in considering what changes, if any, to make to the draft RPG. Other considerations will include all the representations made on the draft RPG. The Secretary of State's proposed changes to the draft RPG will then be published (including on the internet) with a reasoned statement of the decisions, allowing eight weeks for comment. The reasoned statement will not only explain the main changes made but also decisions not to make changes recommended by the Panel, unless these are minor. There may be changes which the Secretary of State needs to make which do not relate to matters which the Panel selected for the public examination, though these are likely to be relatively minor."

12. Annex A goes into somewhat greater detail concerning the Secretary of State's approach. It states at paras 53-55:

"53. The Panel report will form an important basis for the Secretary of State in considering what changes, if any, to make to the draft RPG. The Secretary of State's proposed changes to the draft RPG will then be published (including on the internet) with a reasoned statement of the decisions, allowing eight weeks for comment. In commenting on the proposed changes, reference may, of course, be made to the Panel report. The reasoned statement will not only explain the main changes made but also where the Secretary of State has decided not to make changes recommended by the Panel unless they are very minor. Copies of the report and statement will be sent to participants in the public examination and made available to anyone else on request.

54. When publishing the proposed changes, the Secretary of State may indicate policies or proposals where advice from the RPB and other participants would be particularly welcome. Exceptionally, the GO or Department may then wish to hold meetings or otherwise contact the RPB and certain other participants as appropriate, in two sets of circumstances. Firstly, where the Panel had insufficient evidence on certain matters which were left unresolved in its report. Secondly, where the changes proposed by the Secretary of State are such that further information is required to assess whether they could be effectively applied. Publicly available minutes of such meetings or notes of the outcomes of other contacts should be kept. Where there has been such selective contact, and depending on its nature and outcome, a further consultation period may be necessary in order to give others an opportunity to comment. The above-mentioned notes and minutes should be made available as part of this process.

55. In making changes to the draft RPG, the Secretary of State will need to take account of all representations made and not just those considered at the public examination and reported on by the Panel. There may be changes which the Secretary of State needs to make which do not relate to matters which the Panel selected for the public examination, though these are likely to be relatively minor."

The chronology of RPG13

13. In July 2000 a draft of RPG13 was published by the relevant Regional Planning Body, the North West Regional Assembly.
14. In October 2000, HLC (the consortium of which the claimants are members) submitted written representations on the draft. Thereafter, as a body of major stakeholders, it submitted position statements to the Panel in January 2001 and participated by invitation in the public examination which took place in February-March 2001.
15. The Panel's report was submitted to the Secretary of State in August 2001.
16. In May 2002 the Secretary of State published a revised draft RPG, incorporating the changes proposed by him and inviting written representations.
17. HLC submitted written representations under cover of a letter dated 15 August 2002 which described HLC, the interests of its members and their involvement in the proceedings before the Panel, before going on to make a strongly worded request for the reconvening of the public examination before the Panel to consider certain proposed changes. I shall refer below to the detailed content of the covering letter and of the representations sent with it.
18. The Secretary of State did not respond to the request for the public examination to be reconvened. On 31 March 2003 he issued RPG13 in its final form. It included certain changes in response to the representations received, but those changes did not meet the claimants' major concerns. Accordingly they commenced the present proceedings in June 2003.

The claimants' concerns

19. Mr Gilbart QC, on behalf of the claimants, took me through the evolution of the relevant policies, and the claimants' criticisms of what happened, in considerable detail. Much of the detail seems to me to be unnecessary for an assessment of the main issues in the case and is liable to distract from those issues. Rather than burdening the main body of the judgment with it, I have included a detailed consideration of the relevant policies as an annex to the judgment, to which reference can be made as required.
20. The broad nature of the claimants' request for the procedure before the Panel to be reconvened can be gauged from the terms of HLC's letter of 15 August 2002 enclosing its representations on the draft RPG issued by the Secretary of State:

"7. The changes now proposed by the Secretary of State fall into three kinds:

(a) changes which deal with matters raised and discussed before the Panel;

(b) changes which do not deal with such matters but are of minor significance;

(c) changes of major significance which propose policies never included in the draft RPG and not proposed or discussed before the Panel, where the first opportunity for comment arises in response to the Secretary of State's proposed changes. The relevant policies appear below. The policies in question are of major significance to the amount and disposition of house-building within the region, its counties and within its cities, towns and elsewhere.

….

9. In the case of category (c), HLC's representations are attached. They too find support from some other representations from local authorities and the NWRA. However it is not considered that this matter can be dealt with by written representations alone. HLC considers, and is so advised by Leading Counsel specialising in this area of the law, that the Deputy Prime Minister should reconvene the Panel for his proposed changes to the policies to be considered. We say that for the following reasons.

10. Policies in category (c) have a direct effect upon land in which the members of HLC have an interest. The effect of the changes is:

…

(b) to reduce the amount of housebuilding within the region significantly, which will affect the way in which, and whether, the members of HLC can develop the land they own/have an interest in;

(c) in the case of North Cheshire, the changes call into question the ability of landowners (including members of HLC) to develop land in town and urban areas, and generally, in that area, including land which is previously developed land. The proposed policy goes as far as requiring a wholesale review of all Development Plan allocations in that area, and sets a test of national benefit for the retention of any Development Plan allocation for housing within that area. It is a drastic change in long settled policy (explored further in HLC's detailed comments which accompany this letter and below), which deserves the fullest examination.

11. The changes are of great regional significance and in the second and third cases have implications for the pattern and distribution of development generally.

12. It follows from the above that:-

(a) the members of the HLC are entitled to a fair and public hearing of their objections to proposed policies which affect their interests as owners of interests in land. That right flows from Article 6 of Schedule 1 of the Human Rights Act 1998;

(b) given the terms of PPG 11, and generally, members of HLC ("regional stakeholders") have a legitimate expectation that policies of importance should be open to discussion before the Panel, and the Deputy Prime Minister have the benefit of the Panel's considered views upon them;

(c) the Deputy Prime Minister has given no reasons for departing from his declared policy in PPG 11 that he will base his proposed changes on the Panel's report, save on minor matters;

(d) it would be unfair to the members of HLC that very important changes to policy, which have the serious implications they do to the development industry (and to members of HLC in particular), should be made when those new policies will not be subject to the same informed scrutiny to which all other policies for the Region have been subjected.

…

14. HLC therefore urges the Deputy Prime Minister to agree that the Panel should be reconvened to consider proposed changes to the following policies …."

21. The policies then referred to included SD4 and UR7, with the letter in each case setting out detailed argument as to the significance of the changes. The policies referred to did not include policy UR4.
22. In relation specifically to policy SD4 the claimants' grievance is that it applies a highly restrictive regime to development in North Cheshire (including a review of existing allocations against stringent criteria) and that a policy in this form and with such a restrictive effect was not contemplated in the original draft RPG, was not discussed at the hearing before the Panel and was not recommended by the Panel. It is said to be the kind of policy that calls out for the independent scrutiny of the Panel.
23. In relation to policy UR7 the complaint is that the policy makes provision for new housing at a level considerably below that contained in the original draft RPG and recommended by the Panel. This will have very substantial effects on house building and on the wider economy in the North West. It is said that if ever there was an issue calling for independent scrutiny by the Panel, this was it.
24. In relation to policy UR4 the complaint is that the policy lays down targets for recycling (use of previously developed land and buildings) substantially higher than those contained in the original draft RPG or recommended by the Panel. The setting of targets is an important matter and the new targets should have been the subject of independent scrutiny by the Panel.
25. Mr Gilbart opened his submissions in relation to all three policies as follows: (i) the Secretary of State failed to allow an opportunity to challenge the policies proposed by him after the Panel had reported, such challenge being before the independent Panel; (ii) in doing so, he failed to fulfil a legitimate expectation that such a procedure would be followed; (iii) alternatively, he did not act fairly; (iv) alternatively, he did not give reasons for acting contrary to his own policy. As regards those submissions, I propose to deal first with the alleged breach of legitimate expectation and then with the alternative procedural arguments.
26. There is a further argument, with which I shall deal separately, that the Secretary of State's reasoning for the change he made to policy UR4 was inadequate or irrational.
27. In relation to policy DP1 the claimants' case, with which I shall also deal separately, is that the policy involves an irrational conflict with policies UR4 and UR8.
28. A challenge in relation to policy SD1 was withdrawn before the hearing. It was conceded at the hearing that arguments under the Human Rights Act 1998 did not take matters any further than those developed under traditional principles of judicial review.

Breach of legitimate expectation

29. The claimants contend that the policy framework in PPG11 created a legitimate expectation that policies of importance, such as policies SD4, UR4 and UR7, would be the subject of discussion before the Panel and that major changes would not be made thereafter, or at least would not be made without allowing further consideration of them by the Panel. An alternative submission, which I think is intended to fall under the head of legitimate expectation as well as the heads of departure from policy and unfairness, is that the Secretary of State was required to hold a meeting with the claimants before making major changes to such policies.
30. In support of the argument that a legitimate expectation arose in this case, Mr Gilbart relied in particular on a passage in the judgment of Simon Brown LJ in R v. Devon County Council, ex p. Baker [1995] 1 All ER 73 at 89e-f:

"The final category of legitimate expectation encompasses those cases in which it is held that a particular procedure, not otherwise required by law in the protection of an interest, must be followed consequent upon some specific promise or practice. Fairness requires that the public authority be held to it. The authority is bound by its assurance, whether expressly given by way of a promise or implied by way of established practice. Re Liverpool Taxi Owners' Association [1972] 2 All ER 589, [1972] 2 QB 299 and A-G of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER 346, [1983] 2 AC 629 are illustrations of the court giving effect to legitimate expectations based upon express promises; Council of Civil Service Unions v. Minister for the Civil Service an illustration of a legitimate expectation founded upon practice albeit one denied on the facts by virtue of the national security implications."

31. The submission made was that PPG11 constituted exactly that kind or promise or practice upon which was founded a legitimate expectation that the Panel procedure would be reconvened or at least that meetings would be held with the Secretary of State in the event that he proposed significant policies or revisions not previously considered by the Panel.
32. Mr Brown, for the Secretary of State, submitted that for a statement, undertaking or promise to give rise to a legitimate expectation it must be "specific", as per Simon Brown LJ in Baker, and "clear, unambiguous and devoid of relevant qualification", as per Bingham LJ in R v. Inland Revenue Commissioners, ex p. MFK Underwriting Agents Ltd [1990] 1 WLR 1545 at 1569G-H. Accordingly, the question to be asked is: "to what has the public authority committed itself?" This is a question of fact, the answer to which is to be found by analysing the evidence: R (Bibi) v. Newham LBC [2002] 1 WLR 237 at 244A-E.
33. Mr Brown submitted that far from holding out any such promise, PPG11 makes it clear that there is no guarantee that any particular issue will be canvassed at the public examination before the Panel, or that any particular party will be allowed to appear before the Panel, or that the Secretary of State will adopt all or any of the recommendations contained in the Panel's report. Critically, there is nothing in PPG11 that promises, or gives rise to any expectation of, a further hearing before the original Panel or some other independent body should the proposed RPG differ from the draft RPG in a way other than as recommended by the Panel. There is nothing beyond the exceptional possibility of meetings or other contacts between the Secretary of State and certain participants in defined circumstances; but those circumstances do not apply here and in any event such meetings or contacts do not involve reconvening of the Panel.
34. In my judgment Mr Brown is clearly right. The claimants' case depends upon trying to extract from PPG11 far more than is to be found in it. The guidance does not provide the foundation for any legitimate expectation of the kind for which Mr Gilbart contends, whether expressed in terms of a promise or of a practice. In particular:

i) The procedure following the Panel's report is laid down in para 2.20 of the main text of PPG11 and, in greater detail, in paras 53-55 of Annex A. Provision is made for a consultation period during which written representations may be made. "Exceptionally" the Secretary of State may wish to hold meetings or otherwise contact the Regional Planning Body and certain other participants "in two sets of circumstances" (para 55 of Annex A). There is no provision whatsoever, let alone anything that could constitute a promise or practice sufficient to found a legitimate expectation, as to the reconvening of the Panel or indeed the holding of a meeting otherwise than in the circumstances specified.

ii) The circumstances in which it is said that, exceptionally, the Secretary of State may wish to hold meetings or otherwise contact participants are (a) where the Panel had insufficient evidence on certain matters which were left unresolved in its report, and (b) where the changes proposed by the Secretary of State are such that further information is required to assess whether they could be effectively applied. The Secretary of State was reasonably entitled to take the view that neither of those circumstances applied in this case.

iii) Even the premise to Mr Gilbart's submissions, namely that PPG11 creates a legitimate expectation that policies of importance will be the subject of discussion before the Panel, cannot be sustained (though I emphasise that, even if it could be sustained as regards consideration of the original draft RPG by the Panel, it would not justify the leap to the proposition that major changes cannot be made by the Secretary of State thereafter or cannot be made without further consideration by the Panel). PPG11 does not provide that all policies of importance will be discussed before the Panel. It states that the main purpose of the public examination is to provide an informal opportunity for discussion and testing of "selected matters arising from consideration of the draft guidance" (para 2.18), that it is not an examination of all submitted proposals or of all objections (ibid.) and that it ensures there is public debate on "selected issues where an examination could usefully provide further information". It does not lay down an absolute rule that all important policies will be considered, but leaves the selection of issues for debate to the judgment of the Panel.

iv) Further, PPG11 makes clear that public examination before the Panel is not the only basis upon which the Secretary of State will decide on the content of the final RPG. The public examination provides "the main basis" (para 2.19), and the Panel's report forms "an important basis" (para 2.20; and Annex A, para 53), for the Secretary of State's decision on whether changes need to be made to the draft guidance. Other considerations will "include" all the representations made on the draft guidance (para 2.20; see also Annex A, para 55).

v) It is contemplated that the Secretary of State may make changes "which do not relate to matters which the Panel selected for public examination" (para 2.20; and Annex A, para 55). Although it is said that "these are likely to be relatively minor", there is nothing to preclude the possibility of major changes not relating to matters selected for public examination.

vi) Thus, although the guidance acknowledges the importance of the public examination as a means of testing selected matters, it treats the public examination as only one part of the process and does not commit the Secretary of State to having every important issue tested in that way. The Panel's report is treated as a valuable input, but the Secretary of State reserves the right to consider all the available evidence for himself and to reach his own view on the appropriate content of the guidance.

vii) I have borne in mind that PPG11 provides in terms that the Regional Planning Body, having submitted the draft RPG, should not then make significant changes to it or introduce major new material in the lead-up to or during the public examination, since to do so would probably result in the examination having to be postponed (para 2.17). All of that relates to the procedure to be adopted at the stage of the public examination before the Panel. It does not apply to the making of changes by the Secretary of State after receiving the Panel's report; and, for the reasons already given, it is not possible to read into the guidance any equivalent restriction at that later stage or any requirement to re-open the public examination if such changes are made.

35. I think it unnecessary to engage in detailed analysis of the authorities on legitimate expectation. Neither party took issue with the formulation by Simon Brown LJ in Baker, which is sufficient for present purposes. In the present case there was in my judgment nothing approaching a specific promise or practice that could found the legitimate expectation contended for. Even if the word "specific" is put on one side, there was still no promise or practice capable of founding the legitimate expectation contended for. Plainly there was no representation capable of meeting the test propounded in MFK Underwriting ("clear, unambiguous and devoid of relevant qualification"). Mr Gilbart submitted that that test was not of general application but was conditioned by its context, namely an attempt to hold the Revenue to a statement about the taxation treatment of certain transactions. Although that was undoubtedly the context, I note that the test has in practice been applied more widely (and see de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th ed., para 8-055). But I do not need to have recourse to it in order to reject the claimants' case. A further authority cited was R v. North & East Devon Health Authority, ex p. Coughlan [2001] 1 QB 213, but the valuable discussion of legitimate expectation that it contains does not add materially to the principles of immediate relevance to the present case.
36. Accordingly I reject the claimants' case on breach of legitimate expectation. The claimants had no legitimate expectation that the public examination before the Panel would be reopened or that the Secretary of State would hold meetings with them or that he would adopt any procedure other than that actually adopted.

Alternative procedural arguments

37. As one alternative to their argument on legitimate expectation, the claimants submit that it was contrary to the Secretary of State's own policy, as contained in PPG11, to make such significant changes as introducing policy SD4 and revising policies UR4 and UR7 without affording the claimants, as major stakeholders, the opportunity to participate in public scrutiny of the proposals brought about by the changes before the independent Panel. The Secretary of State was therefore obliged to give, but has not given, reasons for his departure from his own policy.
38. In my judgment that alternative submission gets the claimants nowhere. The case on legitimate expectation was based on the terms of PPG11. The reasons that have led me to reject that case lead equally to the conclusion that the Secretary of State did not act contrary to his own policy. In making the changes he did to the draft RPG, he acted in accordance with the procedural provisions contained in PPG11. There was no departure requiring a reasoned explanation.
39. In the further alternative, the claimants submit that the requirements of fairness in this case meant that the public examination should have been reopened. In the light of the policy context, the importance of RPG in the planning process generally and the claimants' own particular interests, fairness required that the significant changes brought about by policies SD4, UR4 and UR7 should have been scrutinised in public, as they would have been had they been included in the original draft RPG. The Secretary of State has required the Regional Planning Body not to make significant changes to the draft guidance in the lead up to or during the public examination before the Panel, since to do so would probably result in the examination having to be postponed (PPG11, para 2.17). It would be extraordinary if he himself were able to make major changes without their being scrutinised at all through a public examination. He cannot expect a higher duty of fairness from others than he would apply to himself.
40. I see no procedural unfairness in what occurred. The Secretary of State, having considered the Panel's report, revised the draft RPG and issued it for consultation. He gave ample time for written representations. He took into account the representations received and made further changes to the draft RPG in the light of them. Fairness did not require him to re-open the public examination before the Panel or to subject the proposed changes to some other form of independent scrutiny or to hold meetings with the claimants. It was perfectly fair to approach the matter in accordance with the procedural framework laid down in PPG11, as the Secretary of State did.
41. In any event, whether to re-open the public examination or to adopt some other procedure outside the framework laid down in PPG11 was a matter of discretion for the Secretary of State. The whole process of formulating regional planning guidance is non-statutory and discretionary. Having laid down in PPG11 the general procedure to be followed, the Secretary of State was nonetheless free to depart from it if, for example, he thought it necessary to do so in the interests of fairness. But that was a judgment for him and it is open to challenge only in accordance with conventional Wednesbury principles. There is no direct evidence about the final decision-making process, but in the absence of evidence either way the Secretary of State must be taken to have considered the claimants' request, made through HLC, for the public examination to be re-opened. That he considered the representations made is shown in any event by the fact that he responded to them by making certain further changes to the final version of RPG13. So there was no failure to consider; and the decision to issue the final version without re-opening the public examination cannot be said to have been irrational.
42. That the court should examine the Secretary of State's decision in accordance with conventional Wednesbury principles is supported by two authorities cited in argument. First, Warren v. Uttlesford DC [1997] JPL 1130 concerned a challenge under s.287 of the Town and Country Planning Act 1990 to a local planning authority's decision not to exercise its statutory power to reopen a public inquiry. The Court of Appeal held that the correct approach was to ask whether on normal judicial review principles the decision not to reopen the inquiry was unlawful. One of the matters the authority had to consider was whether a decision not to do so would be unfair. If it failed to consider the point or came to a perverse conclusion, then its decision was liable to be struck down. It is perhaps surprising that the court, having expressed the principle in those terms, went on to examine for itself the issue of fairness. But it seems to have done so for the secondary purpose of making clear to the applicants that it would have reached the same conclusion as the local planning authority if it had been free to decide the issue of fairness for itself.
43. Mr Gilbart rightly pointed out that Warren was concerned with statutory powers and that it involved a different policy context (in that it was governed by PPG12, which provided inter alia that an inquiry into objections "will be necessary only in exceptional circumstances, and it will not normally be necessary to hold a further inquiry into matters already considered"). I accept that the policy context was different, but do not consider that that affects the principle laid down in Warren. It is a principle that ought to apply with equal or greater force in relation to a non-statutory procedure such as the formulation of RPG.
44. The second relevant authority is Drexfine Holdings Ltd. v. Cherwell DC [1998] JPL 361, which again concerned a decision not to hold a further inquiry into a local plan. Robin Purchas QC, sitting as a deputy High Court Judge, held that the decision was unlawful and quashed the relevant part of the local plan. In the course of his judgment he stated (372-3):

"… Parliament did consider it appropriate expressly to provide the authority with the power in its discretion to hold a further inquiry. The fact that a proposed modification involves issues which have not been the subject of consideration at the deposit stage could be a highly material consideration in determining whether or not a further inquiry should be held. Considerations that would generally be material to that decision would include:

(1) whether or not the issue raised had been previously subject to independent scrutiny by an Inspector so as to provide independent evaluation of the opposing contentions;

(2) the current advice in paragraph 69 of annex A to PPG12 [that it will not normally be necessary to hold a further inquiry into matters already considered, etc.];

(3) the practical implications of a second inquiry and, in particular, whether it would potentially be of material benefit to the decision making process;

(4) delay and the desirability of securing an up to date adopted development plan; and

(5) fairness to the objector and to other parties; as with all decisions of this kind, the determination whether or not to hold a further inquiry should seek to achieve fairness, balancing the interests of the relevant parties; however, in the light of the Court of Appeal decision in Warren it is not appropriate in the context of a challenge to a decision whether or not to hold a new inquiry to elevate the consideration of fairness to an administrative law obligation that goes beyond usual Wednesbury principles."

45. In terms of general approach, Drexfine followed the decision of the Court of Appeal in Warren. It was held on the facts that the local planning authority had failed to have regard to material considerations. As I have already stated, that cannot be said against the Secretary of State here. Although the context was again different, Drexfine does provide some support for the importance attached by the claimants to independent scrutiny of the proposed policies; but even when that is considered in conjunction with all other relevant considerations it does not get near to establishing that the Secretary of State's decision not to reopen the public examination was irrational.
46. For all those reasons the claimants' alternative submissions on departure from policy and general procedural unfairness are in my judgment as unsustainable as the case on breach of legitimate expectation. There might have been value in reopening the public examination before the Panel or in holding a meeting with the consortium of which the claimants were members, but the Secretary of State was fully entitled to take the view that the claimants had had a fair opportunity to put their case in writing and that he was in possession of sufficient information to enable him to finalise the RPG without any such additional procedural step.

Policy UR4: adequacy of reasons

47. In relation to policy UR4 the claimants make the additional submission that the Secretary of State's reasons for the change in the policy were inadequate or irrational.
48. Reference should be made to the annex to this judgment for the detailed history of policy UR4. As already indicated, the policy as revised by the Secretary of State lays down targets for recycling that are substantially higher than those contained in the original draft RPG or recommended by the Panel. The stated reasons for each of the main changes proposed were:

"To accord with the Panel's recommendation, and to raise the recycling targets in order to reduce the amount of greenfield development."

49. In my judgment the Secretary of State was thereby giving two separate reasons for the proposed changes. Each of them was a valid reason. In part the proposed changes did give effect to recommendations of the Panel, in that they reflected changes of wording that were recommended by the Panel. To the extent that they were not giving effect to recommendations of the Panel, in that they were including higher figures than the Panel had recommended, the reason for the proposed changes was, as stated, to raise the recycling targets in order to reduce the amount of greenfield development. It is plain that higher targets for recycling are likely to encourage development on previously developed land and thereby to contribute to a reduction in greenfield development. This was adequate and intelligible reasoning. Nor was there anything irrational about the inclusion of the higher figures.

Policy DP1: irrationality

50. Policy DP1 (economy in the use of land and buildings) is one of the Core Development Principles. The evolution of the policy is described in the annex to the judgment. The policy in its final form reads, so far as material:

"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 within 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 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 other services and infrastructure and is or can be made accessible by public transport, walking or cycling."

51. The case now advanced by the claimants, though it was not advanced in their written representations at the time, is that the policy is inconsistent with policies UR4 and UR8.
52. Policy UR4 is the specific policy addressing housing provision. It states:

"The redevelopment and re-use of vacant sites and buildings within urban areas should be a priority ….

The regional target is that at least 70% of new dwellings, including conversions, constructed in the Region from April 2002 should use previously-developed land and existing buildings in sustainable locations in line with the approach to development set out in the Core Development Principles and Spatial Development Framework …."

53. The essence of the contention is that policy UR4 treats the redevelopment of vacant sites and buildings as being of equal priority, whereas policy DP1 ranks the effective use (including re-use and conversion) of existing buildings above the use of previously developed land. Thus there is an inconsistency between the two policies, which in turn renders the adoption of policy DP1 irrational.
54. In my judgment there is nothing in the point. The two policies can be read together without any inconsistency. The redevelopment and re-use of vacant sites and buildings are to be a priority, but one which is to be secured in accordance with the sequence laid down in policy DP1: within the priority category one looks first to effective use of existing buildings and secondly to use of previously developed land. Since policy UR4 refers in terms to the Core Development Principles, of which policy DP1 is the first, it is plain that the policies are intended to be read together in that way.
55. A similar case of inconsistency and irrationality is advanced in relation to policy UR8, which states:

"Land allocated for housing should be released in an orderly, managed, manner in accordance with the principles set out in Policies DP1-4 and SD1-9. To this end, all development plans should incorporate phasing mechanisms which:

…

secure the development of previously-developed land and buildings in urban areas as a first priority."

56. In my judgment the same answer applies. There is no inconsistency between treating the development of previously developed land and buildings as a "first priority" and laying down the sequence to be followed as between existing buildings and previously developed land when securing that first priority. That is further supported by the fact that policy UR8 states in terms that land should be released in accordance with the principles set out in, amongst others, policy DP1.
57. Accordingly the separate challenge to policy DP1 is in my view without merit.

Conclusion

58. For the reasons given in this judgment, the challenge to RPG13 fails on all grounds and the claim must be dismissed.

ANNEX: DETAILED CONSIDERATION OF THE RELEVANT POLICIES

Policy SD4 (North Cheshire)

59. Chapter 4 of the draft RPG contained a number of policies relating to the Spatial Development Framework. Policy SD1 dealt with conurbations in the Mersey Belt, policy SD2 with other settlements in the Mersey Belt, policy SD3 with settlements outside the Mersey Belt, and policy SD4 with development in rural areas. In particular, policy SD3 provided:

"Outside the Mersey Belt, development will be concentrated in the following regional towns and cities:

…

Cheshire: Chester, Crewe and Macclesfield …."

60. Paragraphs 4.14-4.15 of the commentary referred to the "Mersey Belt Southern Crescent" (defined as including South Stockport, South Machester, South Trafford, Warrington, Runcorn, North Macclesfield, Ellesmere Port and Chester) and made certain very general comments about the kind of development that should be promoted in that area and other areas of economic opportunity. The commentary continued:

"4.16 The regional towns and cities of Preston, Carlisle and Chester act as administrative centres in their own right The two cities, along with Crewe, also form gateways to adjoining North Wales, North East England, West Midlands and Scotland and should make the best use of brownfield and urban land that is most accessible by a range of modes of transport. Many of the challenges facing the two main conurbations, particularly the need to tackle urban renaissance in an integrated fashion that promotes sustainable neighbourhoods and land use patterns, apply equally to other regional towns and cities.

4.17 In Cheshire the environment and the relative prosperity of the local economy generate demand for housing and other land uses over and above the County's own needs. This demand should continue to be resisted to support the urban regeneration of the conurbations and relieve pressure on areas of constraint within Cheshire together with traffic congestion. Provision for housing and other land uses should therefore be based principally on meeting the county's own population and housing needs. Development within and around Chester will need to respect both its historic character but also its own functional relationship to North Wales. Similarly development within Crewe must take account of its relationship with the Potteries and North East Staffordshire. In Macclesfield the focus will be on accommodating development within the existing urban areas."

61. In its representations to the Panel, HLC suggested a significant rewording of paragraph 4.17, whereby the demand for housing and other land uses over and above the county's needs "should continue to be met", rather than being resisted, and that to meet the demand in the most sustainable locations a general review of the Green Belt should be undertaken.
62. The issues were then discussed at the Panel hearings. This was followed by the Panel's report to the Secretary of State, in which the Panel recommended that references to the Mersey Belt Southern Crescent should be omitted from the RPG and that consequential revisions be made, including "revision of Draft RPG paragraph 4.17, taking on board points from paragraphs 4.14 and 4.15, to give positive guidance for northern Cheshire" (Panel report, para 5.72, recommendation R5.5). The Panel's reasoning was that it was recommending a wide definition of the "Mersey Belt" and that what was left of the "Southern Crescent" would fall entirely or almost entirely within Cheshire; and guidance in relation to it could therefore be given by a revision of the commentary at paragraph 4.17, taking on board some of the observations at paragraphs 4.14 and 4.15 without referring to the Southern Crescent as such (see Panel report at para 5.54 in particular).
63. A separate recommendation by the Panel was the addition of Northwich to the list of towns in Cheshire in policy SD3 (see Panel report, paras 5.67 and 5.72, recommendation R5.9(a)).
64. It is clear that the Panel did not accept HLC's case that the guidance for Cheshire should be reworded so as to refer to the meeting of demand over and above the county's needs rather than resisting it.
65. The revised draft RPG13 published by the Secretary of State after consideration of the Panel's report included substantial changes to the chapter on the Spatial Development Framework. One of the changes to policy SD3 was the addition of Northwich to the towns to which the policy applied, in order to reflect the Panel's recommendation R5.9(a). Thus the revised policy SD3 read, so far as material:

"To the north and south of the North West Metropolitan Area, development will be concentrated in the following key towns and cities:

….

to the south, Chester, Crewe, Macclesfield and Northwich …."

66. More importantly, the revised draft contained a new policy numbered SD4 (unrelated to the policy SD4 in the previous draft) and headed "Maintaining Urban Form and Setting, and the Treatment of North Cheshire". It provided that "North Cheshire" was to be interpreted for the purposes of the policy as "the northern edge of the County of Cheshire, running west to east from Chester to Macclesfield, and to the north of the 'A roads' connecting Chester, Tarvin, Kelsall, Northwich, Knutsford and Macclesfield, plus that area of Warrington BC which lies south of the Manchester Ship Canal". The relevant substantive part of policy SD4 stated:

"Given the continued high demand for development in the North Cheshire area, much of which is in the Green Belt, all development plan allocations in that area, specifically should be immediately reviewed to ensure that any existing and proposed land allocations for further development in the North Cheshire area are fully justified having regard to the Core Development Principles, and this Spatial Development Framework. In North Cheshire, outwith the North West Metropolitan Area, only those allocations which are sustainable and which will add significant value to the development of the national economy or which are of greater than regional significance should be retained …."

67. The stated reasons for the addition of the new policy were:

"To provide positive guidance on North Cheshire as recommended by the Panel - R5.5 - in the context of a broader statement on maintaining urban form, bearing in mind the fact that much of North Cheshire lies within the Green Belt, and to define North Cheshire, for the purpose of this Policy, more precisely."

68. The commentary was also revised, "to provide positive guidance on the North Cheshire area as recommended by the Panel - R5.5". The revised commentary made clear in paragraphs 3.23-3.25 that the review of allocations applied as much to brownfield land as to greenfield land and that "[t]o the extent that allocations are proposed which do not respect Policy SD4 in this RPG and supporting guidance on this matter, they will be resisted by the Secretary of State".
69. The claimants' consortium, HLC, made representations in very strong terms about the proposed policy SD4. It was one of the policies in respect of which the covering letter specifically requested that the Panel be reconvened. The letter described it as "a wholly new policy" and as imposing a test that was "a drastic step … not based on any existing national policy guidance". It explained that the members of HLC had obtained interests in land in the area concerned in reliance on up to date development plan allocations and that "[t]o threaten those allocations, and to make so drastic a change, requires proper informed scrutiny as if that policy had been published in the draft RPG".
70. In addition, HLC's detailed representations on the proposed policy SD4 stated:

"A. Much of this policy contains important new material that has not been the subject of scrutiny by the Public Examination Panel, including the requirement that all development plan allocations in the North Cheshire Area should be immediately reviewed. Because of the importance of this new material, and the extent to which it would affect interested parties including members of the Consortium, the Public Examination should be re-opened to examine it.

B. There is no basis to review all existing development plan allocations in North Cheshire and seek their deletion unless they "add significant value to the development of the national economy or which are of greater than regional significance". This is an impossibly high test that cannot be met by most development proposals, other than for specialist employment purposes. No housing, retail or local employment allocation could meet such a test, although such allocations are likely to fulfil other important planning objectives, such as the need to achieve more sustainable patterns of developments as well as the other matters set out in paragraph 3.24.

C. There is inconsistency in the Proposed Changes on whether development for local needs in North Cheshire should be allowed. The implication of Policy SD4 is that local needs will not be satisfied. This must be the inevitable consequence of the test that only allocations which "add significant value to the development of the national economy or which are of greater than regional significance should be retained". However, such an outcome seems inconsistent with the statement in paragraph 3.18 that Cheshire should continue to meet its own local needs. Similarly, the identification by Policy SD3 of Chester, Northwich and Macclesfield as key towns and cities where development should be concentrated also appears contrary to Policy SD4 as these towns lie within the general area defined as North Cheshire.

D. The policy for North Cheshire should be less prescriptive ….

…

F. As the content of Policy SD4 is almost wholly new and has not been considered by the Panel, the Public Examination should be re-opened to consider it."

71. Those representations were received and considered by the Secretary of State but led only to minor changes in RPG13 as finally issued by him. Policy SD3 was materially the same as in the Secretary of State's previous draft. Policy SD4 was materially the same save that it contained additional wording permitting the retention of allocations "which meet purely local needs", thereby meeting one of the specific points made by HLC. The relevant paragraphs of the commentary were likewise to the same effect as before, save for a reference to the retention of allocations that allowed for the meeting of purely local needs.
72. I have referred to the principal passages in the documentation, though it is right to record that both Mr Gilbart and Mr Brown also took me to some others.
73. The submissions that Mr Gilbart advanced for the claimants in the light of that material can be summarised as follows:

i) A policy in the form of policy SD4 had not been suggested to the Panel or recommended by the Panel. The statement in the Secretary of State's summary grounds for contesting the claim that the insertion of proposed policy SD4 "merely gave effect to a recommendation of the Panel, albeit not in the precise manner which the Panel had suggested" is simply wrong.

ii) The effect of the policy was to apply a highly restrictive regime to all parts of North Cheshire (urban areas and brownfield land as well as Green Belt). Such a regime was not anticipated in the original draft RPG, which talked only of relieving pressure on areas of constraint within Cheshire; it was not the basis of discussion at the public examination before the Panel; and it was not what the Panel recommended in its report.

iii) Although the final version of the policy includes a reference to meeting local needs, these are local needs within North Cheshire (the area to which the policy applies) and are to be contrasted with the statement in the original draft RPG that provision within Cheshire should be based principally on meeting the county's own needs.

iv) There is a potential for significant conflict between policy SD4 and policy SD3, in that Macclesfield and Northwich are subject to the restrictive regime laid down by policy SD4 for North Cheshire but are at the same time included with Crewe in policy SD3 as key towns in which development will be concentrated.

v) The new policy SD4 was not given the independent scrutiny of the Panel, yet it called out for such scrutiny. The fact that the Secretary of State has wrongly suggested that the policy gave effect to a recommendation of the Panel shows how valuable the independent advice of the Panel would have been.

vi) That the claimants have been prejudiced by the failure to reopen the public examination is shown by a witness statement which describes the kinds of evidence that the claimants would wish to put forward if the inquiry were re-opened.

74. The submissions of Mr Brown for the Secretary of State were in summary as follows:

i) He accepted that policy SD4 was a new policy, but not that it covered matters that had not been canvassed before the Panel or on which the Secretary of State lacked sufficient evidence on which to make a decision.

ii) The policy does provide specific guidance for North Cheshire as the Panel recommended, though it does so in the form of a policy rather than through a reworking of paragraph 4.17 of the original draft RPG.

iii) The review of development plan allocations was a matter considered by the Panel. Mr Brown referred in that connection to paragraph 5.70 of the Panel's report, which rejects the view of CPRE that the RPG should not take effect until the existing development plan came to review. The Panel stated: "The eventual RPG will set a framework for development plans. We strongly support the expressed intention of GONW to do a clinical analysis of development plans across the whole of the Region in the light of RPG and advise local authorities whether they should be reviewed immediately. We note that PPG3 impels a review concerning housing." In any event, submitted Mr Brown, this was not a matter on which the Secretary of State required further evidence.

iv) Although there are differences, the policy continues a restrictive approach found in the original draft RPG. The change from a reference to "the county's needs" in the original paragraph 4.17 to "local needs" in policy SD4 and its commentary must be seen in the context of a policy giving guidance to only part of the county, namely North Cheshire. Further, in including a reference to local needs in the final version of RPG13 the Secretary of State was responding to a specific request in the claimants' written representations.

v) There is no conflict between policy SD4 and policy SD3: the latter tells one where to concentrate development, the former tells one what sort of development it should be.

vi) There was no reason why the concerns raised by the claimants should not have been dealt with by written representations; and there was no reason why the claimants should not have produced, as part of their representations, the evidence that they say they would adduce if the inquiry were re-opened. The Secretary of State was entitled to reach his decision on the final version of RPG13 on the basis of the written representations received and without holding a meeting.

75. In my judgment policy SD4 does go significantly further than the debate at the public examination and than the Panel recommended. What the Panel said in its report about the review of development plans seems to me to fall a long way short of consideration of a requirement to review existing development plan allocations by reference to the stringent criteria contained in the policy. The inclusion of such a requirement was an important matter on which the claimants had substantial points to make.
76. Those points, however, could be made adequately by way of written representations. To the extent that the claimants now rely on arguments or evidence that they failed to include or refer to in their written representations, they cannot expect those matters to carry weight in a procedural challenge to the Secretary of State's decision. The points they did make in their written representations were taken into account by the Secretary of State, as is shown by the fact that the final version of the policy responded to them by making provision for the retention of allocations that meet purely local needs.
77. The Secretary of State was entitled to take the view that he had sufficient information on which to decide the final form of the policy without reopening the public examination or holding further meetings or having any other form of further consultation. The criticisms directed towards the final form of the policy are not expressed in terms of an irrationality challenge and such a challenge could not succeed.
78. The principal arguments advanced with regard to breach of legitimate expectation, departure from policy and procedural unfairness are considered in the body of the judgment.

Policy UR4 (setting targets for the recycling of land and buildings)

79. Chapter 6 of the draft RPG contained two policies relevant to the present case. The first, policy UR4, concerned targets for recycling:

"The redevelopment and re-use of vacant sites and buildings within urban areas should be a priority. New development should be encouraged to make best use of such sites in sustainable locations.

Local Authorities should ensure that an average of at least 65% of new dwellings, including conversions, constructed in the region between 1996 and 2021 should use previously developed land and existing buildings in sustainable locations in line with the sequential approach to development set out in policies CS1-3 and SD1-5. However, it is recognised that variations exist in the amount of previously developed land and buildings in sustainable locations across the regions and in preparing development plans local planning authorities should adopt the following subregional targets:-

Mersey Belt Conurbation Cores, on average at least 85%

Rest of Conurbations and Other Settlements in Mersey Belt, on average at least 65%

Outside of the Mersey Belt, on average at least 50% …."

80. The Panel heard competing views on the appropriateness of those targets, the claimants being amongst those who argued that they were too high. The flavour of the debate and of the Panel's approach is conveyed by the following passages from its report:

"7.63 Table 10 in the Housing Background Paper sets out the basis for the targets included in Policy UR4. These are derived from the results of the housing potential studies ….

7.64 In paragraph 7.43 above we have referred to the reservations held by HBF and others as to the reliablity of the urban potential studies and their likely accuracy ….

7.65 There is also evidence from land use change statistics that an average of 61% of new dwellings have been built on previously developed land in the North West between 1992 and 1996. Bearing in mind that the national target is that 60% of new housing should be provided on previously developed land, and through conversions, by 2008 an overall target of 65% for the North West region, where there is a relatively high proportion of previously used land, does not seem to us to be unrealistic or unachievable ….

7.66 NWRA have recognised that there will need to be concerted effort by local planning authorities, and an increase in resources, to enable the achievement of the targets set. However, we commend these as being entirely in line with the direction taken in Government policy, most recently in the Urban White Paper. The Merseyside Policy Unit confirmed at the Examination that they foresee little difficulty in achieving either the 85% target in the conurbation cores or 65% in other parts of Merseyside. The Greater Manchester Authorities 'aspire to reaching somewhat higher proportions'. Table 10 suggests that the potential in Cheshire is 52% brownfield although Cheshire County Council stated at the Examination that they can achieve 44% although much higher proportions will be met in Chester and Macclesfield. Lancashire Joint Structure Plan Authorities may well achieve 65%, with 70% in East Lancashire. Only Cumbria expressed serious reservations about the feasibility of achieving the 50% target for their area, but NWRA recognise that the figures are average and that specific targets will be set in individual development plans.

7.67 Despite the reservations of the development industry, we consider that Draft RPG is based upon as reliable an information base as is possible at the present time ….

7.68 Both CPRE and FoE advocate a more rigorous approach ….

7.69 NHF and others hold that the 65% regional target is very low and most unambitious for the Region. The suggested proportion varies widely from 100% to 70%. We have considered whether the regional and sub-regional targets ought to be higher for the reasons set out in paragraph 7.67 above. Bearing in mind the uncertainties about true urban capacity it seems to us better to set a target which should have a reasonable prospect of being met, rather than one which is unduly aspirational ….

7.70 The inclusion of the words 'on average' in Policy UR4 suggests some form of mechanism to ensure co-ordination between the local planning authorities to achieve both the regional and sub-regional targets. From what we heard at the Examination, it appears that most local planning authorities will be able to set targets in their individual development plans at or above the sub-regional figure, but not all …."

81. The Panel went on to recommend some redefinition of the sub-regions and various textual changes. It also recommended various sub-regional targets, but without changing the regional average target of 65%. The effect of the Panel's conclusion was spelled out in recommendation R7.2, at paragraph 7.98 of its report, namely that policy UR4 should be amended so as to read in material part:

"The regional target is that at least 65% of new dwellings, including conversions, constructed in the region between 1996 and 2016 [should use previously developed land and existing buildings, etc.] … [and in preparing development plans local planning authorities should] aim to achieve the following targets through co-operative working within the specified areas and in conjunction with adjoining authorities:

Merseyside area (including Halton), on average at least 65%;

Greater Manchester area (including Warrington), on average at least 80%;

Cheshire 50%; Cumbria 45%; Lancashire 60%.

Within the conurbation cores of Manchester, Salford and Liverpool it is expected that at least 85% of new housing will be on previously developed land."

82. In the draft RPG issued by the Secretary of State after considering the Panel's report, generally higher targets were adopted:

"The regional target is … at least 70% … and in preparing development plans local planning authorities should aim to achieve the following targets, through co-operative working within the specified areas and in conjunction with adjoining authorities:

in the Liverpool and Manchester/Salford City Council areas, on average at least 90% of new housing will be on previously developed land;

in the remainder of the Merseyside area, and Halton, on average at least 65%;

in the rest of the Greater Manchester area, and Warrington, on average at least 80%;

in Cheshire at least 55%; in Cumbria at least 50%; and in Lancashire at least 65%."

83. Many of those figures involved an increase of 5 percentage points over the Panel's recommendation. Mr Gilbart sought to show by detailed calculations that the figures for the remainder of the Merseyside area and Halton represented in reality a much higher increase (and that the Secretary of State was wrong to state in his summary of grounds for contesting the present claim that the figures were only "slightly" different from those recommended by the Panel). But the detailed point made by Mr Gilbart was not a point included in the claimants' representations at the time and in the circumstances I do not need to reach a conclusion on the calculations now put forward.
84. The stated reasons for each of the main changes proposed by the Secretary of State were:

"To accord with the Panel's recommendation, and to raise the recycling targets in order to reduce the amount of greenfield development."

85. Neither through HLC's covering letter nor in the detailed representations put forward by HLC did the claimants seek a re-opening of the public examination in respect of the proposed changes to policy UR4. The detailed representations stated:

"The Consortium welcomes the emphasis that the Proposed Changes give to the recycling of previously developed land including vacant buildings. However, it considers that the increases proposed by the Secretary of State to the recycling targets are unrealistic based on its Members' considerable experience in the development of previously developed land and the likely availability of potential new sources throughout the Region. The increases are not in line with the recommendations of the Public Examination Panel who carefully considered all the evidence then available, nor is there more recent information available which would act as justification ….

The Secretary of State has given no adequate reasons for the new recycling targets. The Statement of Reasons merely notes: 'To accord with the Panel's recommendations and to raise the recycling targets in order to reduce the amount of greenfield development'. These are not valid reasons. The increase in the targets have not been supported by the Panel. Moreover, an increase in the targets by itself will not reduce the amount of greenfield development required if there is insufficient previously developed land available to meet the Policy UR7 requirements. On the other hand, if the targets are maintained to the cost of other planning objectives the consequence will be that the housing needs of the Region are not met.

The Guidance should revert to the recycling targets proposed by the Public Examination Panel …."

86. Notwithstanding those representations, no material change was made to policy UR4 in RPG13 as finally issued by the Secretary of State.
87. Mr Gilbart submitted that the feasibility of meeting targets is an important matter, which the Panel is well able to determine through its independent scrutiny of the material before it. If new targets are set, they deserve the same process.
88. Mr Brown, for the Secretary of State, made the simple point that no request was made at the time for a re-opening of the inquiry and that that ought to be an end of the matter. Nor should the claimant be entitled to rely on detailed points that were not advanced at the time. The fact is that the Panel considered arguments and evidence either way. It is clear from the Panel's conclusions that this is not an exact science but involves policy choices. The Secretary of State had all the material before him and took the view that the figures should be higher. It was not irrational for him to take the view that he had sufficient information or for him to reach the conclusion he did.
89. I need say no more by way of conclusion on those matters than that I accept Mr Brown's submissions. The claimants' wider arguments on breach of legitimate expectation, departure from policy and procedural unfairness are again considered in the main body of the judgment. So too are the arguments concerning the adequacy and rationality of the reasons given by the Secretary of State for the proposed changes.

Policy UR7 (regional housing provision)

90. Chapter 6 of the draft RPG also contained policy UR7, which provided that:

"Local Planning Authorities should plan for a provision of 357,400 dwellings (net of clearance replacement) within the North West for the period 1996 to 2021.

Development Plans should incorporate the requirements set out in Table 6.1 …."

91. The total figure of 357,400 dwellings was based on a projected growth of 343,000 households during the period (a higher figure than the government's 1996 projections) with adjustments for vacancy rates etc.
92. Table 6.1 gave figures for the distribution of dwellings by strategic planning area for the periods 1996-2011 and 1996-2016 and for the total period 1996-2021.
93. At the public examination before the Panel some argued for higher figures than the draft RPG and others for lower figures. There were also arguments about how the figures should be distributed between areas. The claimants, through HLC, supported the overall scale of housing provision in the draft RPG but contended that the figures should be expressed as an annual rate of completions.
94. The Panel's conclusion on the overall level of housing provision was expressed as follows in its report:

"7.22 We do not consider it necessary for there to be hard evidence of an upturn in the regional economy for the RPG to make provision which is above the level of the 1996 projections ….

7.23 Our overall conclusion is that there is no strong case for taking an alternative approach to that in Draft RPG. The figure for regional housing provision is aspirational and may prove too high but it is pragmatic taking account of the existing level of commitments and past building rates. The draft RPG represents a significant reduction, especially during the period after 2011, from past rates. There would, however, be dangers in making too high a level of provision which might result in unnecessary land allocations for housing, despite the monitoring systems in place.

7.24 For these reasons, we do not recommend any alteration to the overall level of provision for 1996-2021 as stated in the first part of Policy UR7, subject to our conclusion in paragraph 7.35 below about the treatment of the post-2016 period."

95. The reference to paragraph 7.35 was to the Panel's recommendation that the figures for the 2016-2021 period should be for guideline purposes and should not be used as a basis for development plan reviews beyond 2016. The Panel also recommended that table 6.1 be revised to show annual rates, rounded to the nearest 10 (paragraph 7.26) and that the base date should remain as 1996 (paragraph 7.29). It could find no basis for any fundamental change to the housing distribution figures in the table other than to express them as annual rates to 2016 only (paragraph 7.55).
96. The Panel made detailed recommendations R7.5 to R7.8 accordingly, at paragraph 7.98 of its report. A revised table 6.1 included annualised figures amounting to 15,940 dwellings a year for the period 1996-2011 and 12,360 dwellings a year for the period 2011-1016. Those figures equated in total to the figures in the original version of table 6.1.
97. The revised draft RPG published by the Secretary of State after consideration of the Panel's report included lower figures than those contained in the original draft and recommended by the Panel. Policy UR7 provided that local planning authorities "should monitor and manage the availability of land identified in development plans to achieve the annual rates of housing provision set out in Table 5.1", i.e. the revised version of the former table 6.1. Table 5.1 gave figures amounting to 12,790 dwellings a year. Paragraph 5.1 of the commentary provided that those annual rates should apply from April 2002 to 2006 and that, where development plans were reviewed and new plans extended beyond 2006, they should continue to provide for additional dwellings at the same annual average rate until such time as any different rate was adopted following review of the guidance.
98. Extensive reasons were given for the proposed changes to the level of housing provision as set out in policy UR7 and table 6.1. They included:

"The level of housing provision, as expressed through the annual rates, has been reduced from that proposed in draft RPG. In making this reduction the Secretary of State has had regard to:

economic growth rates which have been lower than anticipated in the draft RPG;

the above-average numbers of vacant homes and the high reported incidence of low demand within the Region; and

the need to promote more sustainable patterns of development.

The draft RPG level of housing provision significantly exceeds the 1996-based household projections. It has as its economic basis a 'high (maximum) growth' scenario, which utilises the 1996-based household projections and applies to them a high (2.5% annual growth in GDP) growth rate and a reduced rate of unemployment. Actual growth to date is nearer to the draft RPG's 'moderate growth' scenario, suggesting necessary housing provision would accord with the 1996-based household projections (249,000 dwellings by 2016). In the Secretary of State's view, the draft RPG level of housing provision also pays insufficient regard to vacancy rates and the incidence of low demand. Accordingly, the Secretary of State proposes the annual average rate of housing provision to be based upon a total provision of 256,000 dwellings over the period 1996-2016. Whilst this is a reduction of 15% on the draft RPG provision, it is still in excess of that implied by the 'moderate growth' scenario.

Policies UR6 and UR7 are intended to reduce vacancy levels to 3% in the existing stock, and 2% in the new stock ….

The process of formulating the annual rate of housing provision then involves the following stages:

starting with the number of households envisaged by draft RPG and the Panel for 2016, 288,263;

applying revised vacancy rates - 3% in the existing stock, and 2% in the new, as compared with the 4.2% rate used in the draft RPG figures for both existing and new stock;

subtracting 37,200 (the difference in dwellings between the 4.2% and the 3% vacancy rates in the existing stock), and adding 2% to reflect the vacancy rate in the new provision, to give a total provision of 256,084;

reducing the present (Panel) annualised rates by 15% (the % difference between the old (300,900) and the new (256,084) overall levels of provision; and

expressing the new rates as one series of 20-year average rates (rather than the two series used in the Panel's report, for 1996-2011 and 2011-2016) …."

99. Mr Gilbart submitted that there was some confusion in the figures and that the annualised figures contained in the revised draft were in fact 20% below the figure recommended by the Panel for the period 1996-2011, rather than 15% below as stated by the Secretary of State. Mr Brown took issue with that submission. At the heart of the argument is whether the adjustment made by the Secretary of State to the vacancy rate was additional to the 15% reduction or was taken into account in making the 15% reduction. I am inclined to favour the latter view, as put forward by Mr Gilbart, but I do not need to decide the point since it formed no part of the claimants' representations to the Secretary of State at the time.
100. The representations made by the claimants at the time, through HLC, urged the Secretary of State to reconvene the Panel to consider the proposed changes to policy UR7. This was one of the policies identified in the covering letter as calling for consideration by the Panel. The letter stressed in particular that (i) the level of housing provision was a topic explored by the Panel, but it was not asked to address or consider the justification for, nor effects and implications of, the figures now proposed; and (ii) a reduction in the rate of housebuilding would have a marked effect on the prosperity of the region. In the detailed objections to the proposed changes, it was stated:

"The basis of the Consortium's objection to the proposed reduction in housing revision is as follows:-

1) There is now a substantial body of evidence that the 1996 sub-national population and household projections were based upon significant under-estimates of the likely population and households in England at 2016. Since their production the Government and other reputable organisations have produced new projections that show much higher levels of population and households in England for this period. We refer particularly to the 1998-based and 2000-based national projections produced by the Government Actuary. These show a significantly higher population for England, particularly in the key household forming age groups. Although there is no up-to-date household projection for the North West produced by Government sources, it is reasonable to assume that the Region will share at least some of the predicted population and household growth shown in these projections ….

2) Although economic growth rates may have been relatively low in the Region over the few years since 1998, it cannot be assumed that these low rates will continue over the full period to 2016 or even the next 5 years ….

3) The Secretary of State has based the proposed reduction in housing provision on achieving vacancy levels of 3% in the existing stock and 2% in the new stock by 2016. The[s]e are very low levels that have never been achieved over the Region in the modern period. The Guidance states that they are policy targets but gives no details of how they are to be secured. Although the Consortium agrees with the policy aspiration of reducing vacancy levels, it does not consider that it is safe to plan future housing provision on the basis that such very low levels will be achieved ….

4) There is no hard evidence that links incidences of low demand in the existing housing stock with the provision of new housing ….

5) Unnecessary restrictions on new house building will not achieve more sustainable patterns of development. The effect is likely to be higher house prices which in areas of greater demand will force people with limited means to commute further in order to obtain satisfactory housing ….

6) … There is a very real danger that the Proposed Changes will create a major housing crisis in the North West over the next few years, which will need to be addressed by urgent actions to release large amounts of housing land in an unco-ordinated and unplanned way ….

7) House building, including the conversion and refurbishment of existing buildings, is one of the major forces for urban renaissance. There is a very real danger that the lower housing figures set out in the Proposed Changes will significantly reduce the scope for the remodelling of urban neighbourhoods of the type set out in the Core ….

8) In parts of the North West … there are severe problems arising from population decline including decline and loss of local facilities. House building is one of the primary means by which these areas can pursue policies of population retention. The very low housing figures set out in the Proposed Changes will not allow these problems to be properly addressed.

For these reasons, the Consortium considers that the rates of provision set out in the Draft RPG should be reinstated at the very least …."

101. The Secretary of State evidently did not accept the case advanced in those representations. In RPG13 as finally issued by him, policy UR7 and the accompanying table were materially the same as in the Secretary of State's previous draft.
102. Mr Gilbart submitted that if ever there was an issue requiring scrutiny by the Panel, this was it. The revised figures in policy UR7 and the accompanying table will have very substantial effects. The Panel would have considered (a) whether the evidence justified the Secretary of State's view on growth rates an vacancy rates, (b) the effect of the new material identified by the claimants, and (c) the effect of the revised figures on outcomes for urban regeneration, population retention, etc. As in relation to policy SD4, a witness statement describes the kinds of evidence that the claimants would wish to put forward on policy UR7 if the public examination were re-opened.
103. For the Secretary of State, Mr Brown submitted that there had been detailed discussion of this issue before the Panel, with evidence either way on whether to use the 1996 projections or higher figures. The Panel described its recommended approach as "aspirational" but "pragmatic". This was a lukewarm conclusion and there was no reason why the Secretary of State should not take a different view. He explained the reasons for taking a different view and received detailed written representations on his proposals. Here too there was no reason why the claimants should not have produced, as part of their representations, the evidence that they say they would adduce if the public examination were re-opened. The Secretary of State was entitled to reach his decision on the final version of RPG13 on the basis of the written representations received and without reopening the public examination or holding a meeting or other additional procedure.
104. Here too I accept Mr Brown's submissions. Plainly the level of housing provision was an important issue. But it had been the subject of substantial debate before the Panel and the Secretary of State was entitled to take a different view on the appropriate level of provision from that taken by the Panel. The claimants' objections could properly be made by way of written representations. They made such representations, and they cannot gain assistance from arguments or evidence that were not included or referred to in those representations. There is no basis for inferring that the Secretary of State failed to take into consideration the representations that were made. Again he was entitled to take the view that he had sufficient information to decide on the final form of the policy without reopening the public examination or having any other form of additional procedure. And again there is no irrationality challenge and none could sensibly be advanced.
105. In relation to this policy, too, the main arguments on breach of legitimate expectation, departure from policy and procedural unfairness are considered in the main body of the judgment.

Policy DP1 (economy in the use of land and buildings)

106. The original draft RPG contained a policy numbered CS1 on economy in the use of land. It provided in material part that:

"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 locational principles set out in policies SD1-5:

the effective use of existing buildings and infrastructure, including the re-use or conversion of empty buildings;

the use of previously-developed land, particularly that which is accessible by public transport, walking or cycling; and then

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."

107. The Panel supported the policy though it recommended some detailed amendments.
108. In the draft RPG issued by the Secretary of State following consideration of the Panel's report, policy CS1 was renumbered DP1 and was amended in line with the Panel's recommendations. The material part of policy DP1 then read:

"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 within 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 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."

109. The claimants, through HLC, objected to the proposed policy, contending that the sequential approach set out in it did not reflect national policy and that no or inadequate reasons were given for this departure. One of the numerous points made in the detailed argument in support of that objection was that "[t]he proposal to give preference to the re-use of existing buildings over the re-use of previously developed land would not assist the overall objective of urban renaissance". It was not, however, contended that the policy conflicted with policy UR4 or with policy UR8.
110. Policy DP1 was retained in materially the same form in RPG13 as finally issued by the Secretary of State.
111. The case now advanced by the claimants, that there is an irrational inconsistency between policy DP1 and policies UR4 and UR8, is considered and rejected in the main body of the judgment.