England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		22nd October 2004

1. MR JUSTICE SULLIVAN:
2. Introduction: This is an application under section 287 of the Town and Country Planning Act ("the Act") to quash the housing and employment chapters in the Poole Local Plan First Alteration ("the Plan") which was adopted by the defendant on 30th March 2004. The claimant owns a former British Gas site at the junction of Yarmouth Road and Bourne Valley Road in Poole ("the site"). The site is about 1.6 hectares in extent and was allocated for employment use under policy E1 at the Deposit Draft Stage of the Plan. The claimant objected to this allocation and contended that the site should be allocated for housing under policy H1.
3. An inspector held a public local enquiry into the outstanding objections between October 2002 and January 2003. Having heard 121 objections at the enquiry and considered 633 objections in writing, he reported to the defendant on 31st March 2003. The claimant did not appear at the enquiry. Its objection was one of those considered by the inspector on the basis of the party's written submissions. Having considered those submissions, the inspector agreed with the claimant and recommended that the Plan should be modified by the deletion of the site from policy E1 and its addition as a housing site within policy H1. In his report the inspector considered the numerous objections in 15 chapters, dealing with the objections under various topic headings. Thus chapter 8 dealt with housing, chapter 9 with employment, chapter 14 with the central area and so forth. He made numerous recommendations as to what modifications should, or should not be made to the plan.
4. Having considered the inspector's report, the defendant was required by regulation 27(1) of the Town and Country Planning (Development Plan) (England) Regulations 1999 ("the Regulations") to publish a statement ("the statement") setting out the decisions that had been reached in the light of the inspector's report and the reasons for any of those decisions which did not follow a recommendation contained in the report. The statement was published in October 2003. It explained that the defendant proposed not to accept the inspector's recommendation in respect of the site. Thus the site would continue to be allocated for employment use.
5. In December 2003 the claimant made detailed representations in support of its submission that the defendant's decision not to follow the inspector's recommendation was "without merit".
6. As is customary, there was no further enquiry, and pursuant to Regulations 28 and 29(6) the defendant prepared a statement of its decisions in respect of all objections to modifications (or failure to make recommended modifications) which had not been withdrawn and gave its reasons for those decisions ("the responses"). The responses were published in February 2004. The defendant adhered to its decision, that the inspector's recommendation that the site should allocated for housing should not be accepted.
7. The Issue: It is common ground that the reasons given pursuant to the Regulations must be proper, adequate and intelligible and deal with the substantial points raised: see Westminster City Council v Great Portland Estates PLC [1985] 1 AC 661. There are a number of authorities which give guidance as to the approach to be adopted to the adequacy of reasons given under the Regulations and the parties are agreed that:

"The underlying rule which emerges from all of the authorities is that the reasons must demonstrate that the local planning authority has grappled with the reasoning underlying the inspector's recommendation."

see Bainbridge v Hambleton District Council [2000] 80 P&CR 61 at page 70.

The claimant contends that the defendant failed to grapple with the reasoning underlying the inspector's recommendation because its reasons do not deal with the inspector's underlying reasons for recommending that the site should be allocated for housing rather than employment use.

In order to understand that submission, and the council's response, it is necessary to set out the relevant extracts from the inspector's report, the statement, and the responses.

The inspector's Report: When considering the site in the housing chapter the inspector said this in paragraphs 8.55 to 8.57:

"8.55. In chapter 9 I have recommended that this land should be deleted from policy E1 and be allocated for housing. My recommendation here reflects those findings. It also follows the approach elsewhere in this chapter: a site specific policy; a minimum density of 30 dwelling per hectare... and inclusion in policy H1(f) for development in Phase 1.

8.56. I have not recommended any criteria for development, since I have seen no evidence in this respect. However, from my site visit, it may be necessary to recognise the location adjoining employment uses and statutory undertakings, as well as any specific measures to safeguard the amenities of people living now.

Recommendation

8.57. Add this site to policy H1(f) for development within Phase 1, at a minimum density of 30 dph to produce a minimum 45 units.

8.58. Add a new site specific policy to set out any development criteria, and support it with full reasoned justification."

8. Policy H1(f) set out the proposed housing allocations. The sites were listed in a table. The table divided the sites between those sites which are within the central area and those which are in the rest of the urban area. Information is given in the table about each site, including such matters as the size of the site, the minimum number of dwellings that it is expected to contribute and whether it is within Phase 1 (2001 to 2005) or Phase 2 (2006 to 2011). Some sites straddled both Phases 1 and 2. The total number of dwellings was 2705 of which 245 were to be provided by Talbot Village (policy H1(e), a site in the rest of the urban area).
9. The inspector grouped together various objections that had been made as to the adequacy of policy H1(f). In paragraph 8.76 he said there were a number of issues:

"(a) The role of the 2001/2002 Urban Capacity Study in preparing the Plan, and the weight which should be attached to it.

(b) Whether the windfall forecasts are realistic.

(c) Whether there should be other non-implementation allowances.

(d) Whether the phasing in the Plan meets government guidance.

(e) Whether the forecast yield from allocated sites is realistic.

(f) Whether there is a need for greenfield site allocations to provide choice and flexibility."

10. The inspector considered all of these issues in some detail in paragraphs 8.77 to 8.109 of his report. For present purposes it is sufficient to note that the inspector was satisfied with the defendant's approach to the Urban Capacity Study and felt that the defendant's figures for windfall sites and allowances for non-implementation were satisfactory. In respect of issue (f) he did not accept that there was a need for greenfield allocations.
11. The inspector dealt with phasing between paragraphs 8.92 and 8.96 as follows:

"8.92. I will deal with the principles of the proposed phasing here, and the yield from the sites during the phases in the next issue. I support the council's approach in principle. Given the ten year lifespan of the plan, two five year phases is a sensible approach and accords with the advice on pages 7 and 8 of Planning to Deliver as one of the approaches for the managed release of sites. My view on this is reinforced by the similar nature of the major allocations in the central area which, since they are all in sustainable locations, would make ranking the sites impossible."

12. In paragraphs 8.93 and 8.94 he dealt with detailed matters which are not directly relevant for present purposes.
13. Paragraph 8.95 continues:

"I agree with these and other objectors that the Plan does not deal with circumstances where monitoring of housing development shows that the sites are not being developed in accordance with the phases. There is advice on this on page 17 of Planning to Deliver. In view of my recommendation on the next issue it is important that this is included in the plan. If monitoring shows that the Structure Plan housing requirement is not being met, there will be a need either to bring forward other sites, as I recommend in 8.202 for land at Talbot Village, or to review the Plan. This explanation could also deal with the concerns in objection 337/102 about the timing of development in relation to infrastructure costs.

8.96. Subject to that addition to the Plan, however, I conclude on this issue that the Plan's approach to phasing is acceptable in principle."

14. The inspector then dealt with yield in paragraphs 8.97 to 8.106.
15. In 8.97 he said this in part:

"The main argument raised by objectors on this issue was that the council had underestimated the lead-in time for developing the central area sites which make up the greater part of new housing allocations. It was argued that this would lead to a shortfall of housing in both phases compared to the Structure Plan requirement. I agree that these sites are complicated to develop for a number of reasons."

16. The inspector then set out a number of reasons, seven in all, including such factors as the sites tended to be in multiple ownership, some of them were contaminated, et cetera.
17. The inspector discussed these difficulties in the following paragraphs of his report:

"8.98. Set against this I accept that the council has been in discussion with developers on several sites, and I note the position of planning applications on some of them. I also agree that the lead-in time for the central area sites need not await the adoption of the Local Plan since there is no objection in principle to their development. I note that the housing provision is in any case higher than the figure in the Structure Plan, 10212 against 9500. Finally, in this report I also make recommendations which will release the site covered by policy CA7a [the Pilkington Tile Site] from the planning constraints to which it was subject under policy T8a.

8.99. The individual sites were discussed at the enquiry, and I note the concerns of objectors, in particular the arguments made on behalf of Flower Brothers and others. It seems to me that the council has sought to take these factors into account in considering the yield from the central area sites for the reasons set out in [a table]. However, none of these sites has planning permission, and the figures do not therefore come from a developers' programme, even though Phase 1 had little over three years remaining at the time of enquiry.

8.100. In my view, therefore, whilst the council may be right about those sites which could start in Phase 1, the yield from that phase could be optimistic. On the other hand, it seems to me that the alternative figures submitted on behalf of Flower Brothers and others are likely to be pessimistic: they seem to assume that the lead-in time will start after the adoption of the Plan; the constraints on the site covered by policy CA7a are lifted by my recommendations, and I see no reason why the objectors allocate this site to Phase 2 in these circumstances; and the council gave more up to date information on other sites where planning applications have been received or are expected.

8.101. I am therefore not fully convinced by the detailed arguments on either side, but at the same time I find it impossible to recommend precise figures. Apart from anything else, the situation with many of these sites is dynamic, and any recommendation which I make could be out of date already, based on action since the enquiry, or very soon after submitting this report for the same reason.

8.102. In all these circumstances I agree with those objectors who argued that the Plan should be flexible enough to deal with any shortfalls which monitoring reveals. It seems to me that the Plan itself has some flexibility, given the provision in table 8.1i above the Structure Plan requirement. Indeed, the Structure Plan itself also has some flexibility with its requirement for 'about' 9500 units which, I heard at the enquiry, is taken by the councils in the county to be within plus or minus 10 per cent of that figure.

8.103. I have responded further in three ways. First, I have not deleted policy HIe in response to objections that the land at Talbot Village should not be developed since, among others things, it is a greenfield site. Moreover, whilst I have recommended that it should be included in Phase 2, I have also recognised that it could be brought forward if monitoring shows this to be necessary.

8.104. Second, I have recommended in paragraphs 8.28 and 8.57 that two smaller sites should be added to Phase 1, although I recognise that this could be off-extent to an extent by my recommendation in paragraph 8.163 to delete the site at the Branksome Triangle. Third, I have recommended careful monitoring, and an early and quick review if, as the advice on page 17 of [Planning to Deliver] says, there is 'a persistent and significant gap' between the actual and forecast provision.

8.105. I have not, however, supported the objections which seek to allocate other greenfield sites. ...

8.106. Drawing all this together, therefore I conclude that the council's figures for yield should stand since, despite my reservations, I heard no convincing evidence to support alternative detailed figures. However, that conclusion is based on the need to monitor progress very carefully, and to review the Plan as I discuss in paragraph 8.103."

18. In paragraphs 8.115 and 8.116 the inspector recommended the council to note his recommendations in paragraphs 8.28 and 8.57 on sites to be added to policy H1(f) for development in Phase 1 and to note his recommendation to include policy H1(e) in Phase 2 with a proviso for earlier release if monitoring showed it to be necessary.
19. Turning to the employment chapter in the inspector's report, the inspector said in paragraph 9.4 that the issue was.

"Whether the site is needed as employment land, or should be allocated for housing."

20. He gave his reasons in response to that issue in paragraphs 9.5 to 9.8 as follows:

"9.5. In dealing with the next objection I have supported the principle of protecting employment land through policy E1. In dealing with this objection I have had to balance this principle against others in the Plan. It is clear from table 9.2, as I recommend that it be modified ... that there is a surplus of employment land in the borough against the Structure Plan requirement -- 42.52 hectares against 29 hectares. On the other hand, in chapter 8 I have expressed reservations about the ability of the housing allocations to meet the Structure Plan requirement and, as a result, found a need for greater flexibility.

9.6. From my site visit I see no reason why this site should not be developed for housing, although I also accept that, environmentally, it would be suitable for a range of employment uses. In making my recommendation here, however, I have found that meeting housing need -- particularly on a well located site within the urban area -- outweighs any benefit of retaining this site for employment purposes.

9.7. I note the council's arguments about the value of the surplus in assuring a choice and range of sites. However, I set this against the concern that if the yield from housing sites is shown to be less than forecast, there may be pressure for the release of greenfield sites.

9.8. I note the appeal decision on the site which the Council has drawn to my attention. My findings on the environmental aspects of both uses accords with those of the inspector in that case. The difference between his decision and my recommendation stems entirely from the discussion in paragraphs 24 and 25 of his decision: he was considering a proposal in the light of development plan policy, and guidance in PPG3 on the plan-led approach, whilst I am considering a review of the Plan and have to balance the wider issues raised by the objection."

21. In the light of those conclusions his recommendation in 9.9 was:

"Delete the site from policy E1 and table 9.2, and allocate it for housing in accordance with my recommendation in chapter 8."

22. It is to be noted that when dealing with objections to the effect that E1 should be more flexible, the inspector said in paragraph 9.11:

"As I have found in dealing with the previous objections the amount of employment land is greater than that needed to meet the Structure Plan requirement. However, I do not agree with these objectors that the land available 'far exceeds' the identified requirement, bearing in mind the need to ensure a range of sites, and the restricted nature of the borough, with the sea on one side and Green Belt and areas of international nature conservation interest on the other."

23. In its statement the defendant's summary response to these views of the inspector was as follows:

"The inspector has recommended that two sites at Bourne Valley are reallocated from employment sites to become housing site. This has not been accepted on the basis that these sites will make little impact on the housing supply and will be an unacceptable loss of employment land."

24. In its detailed justification for not accepting the inspector's recommendations in respect of the site, the defendant said this:

"The council has consistently supported the need to retain a good supply of employment land in both quantity and variety and it is consistent with the Structure Plan that a provision in excess of the Structure Plan requirement may be necessary in order to provide the necessary choice and range of sites. The available employment land is in excess of the Structure Plan requirement but the council does not consider this a surplus but necessary to meet the range of employment needs now and in the future. The employment land currently allocated in Poole Local Plan First Alteration represents a diminishing resource and with the rapid rate of take up of employment land it is important to maintain the current supply.

The site at Bourne Valley Road was formerly used for employment purposes and is within an existing employment area. Its suitability for employment uses was confirmed in a recent appeal decision in which a proposal for residential development was dismissed on the basis of the Local Plan's employment policies. Poole Local Plan First Alteration shows how it intends to meet the Structure Plan housing requirement and contends that all of its allocated employment sites are needed to provide a sufficient range and choice of sites. Consequently there is no justification for releasing this potentially valuable employment site and its retention does not contradict PPG3. Its allocation as employment land does not alter the intent of Poole Local Plan towards the site. At the time of preparing the adopted Plan, it was protected as an existing employment site. It has since been cleared of buildings and so it is appropriate to identify it as an employment site under the provisions of policy E1.

The inspector is concerned that the housing allocations may not meet the Structure Plan requirement. The provision of housing through the Plan period of 10212 dwellings is in excess of the Structure Plan requirement of about 9500 dwellings between 1994 and 2011. The inclusion of 'about' also gives an accepted range of plus or minus 10 per cent so in theory the range of the requirement is 8550 to 10450. The Local Plan is clearly well in excess of the minimum as well as the maximum. The allocated sites have been assessed as to their capacity and minimum figures attributed to the numbers of dwellings which can be accommodated. The sites where implementation is commencing are showing higher housing opportunities than the Plan has suggested which will increase the housing allocations. The Former Pilkington Tile Site has been extended to include the site of James Brothers and the capacity of this site has been increased. The council is confident that the housing provision to 2011 will be easily met. There is thus no justification for including existing employment land as part of the housing allocation. There is no justifiable need for further housing provision which would outweigh the benefit of retaining this site for employment purposes."

25. Responding to the inspector's conclusions in respect of policy H1(f) generally and explaining why recommendations 8.114 and 8.115 were not acceptable, the defendant said this:

"For issues (a) [urban capacity], (b) [windfalls] and (c) [implementation allowance] the inspector is satisfied that the Local Plan demonstrates the means by which the borough's housing requirement will be met.

For issues (d) and (e) [phasing and yield] clarification of the phasing and monitoring can be added. However, determining the number of dwellings likely to come forward on particular sites in phases 1 and 2 would incur arbitrary phasing which would be contrary to a recent government statement and draft guidance. Where sites fall within a single phase it is straightforward and clear that all the dwellings will be in a specific phase but where sites span phases 1 and 2 it is not possible to estimate how many will be completed within each phase. There is no benefit in making arbitrary estimates of such housing numbers.

Policy H1(f) will not be amended to include the sites at Bourne Valley in Phase 1 as justified in relation to the inspector's recommendations 8.28, 8.29, 8.57 and 8.58. In concluding at paragraph 8.106 that the council's figures for yield should stand, the inspector has accepted that the housing requirement can be met without the need to allocate these employment sites for housing. The exclusion of the allocation at Branksome Triangle is off-set numerically by the enlarged site at Shapwick Road, Policy CA7a the former Pilkington Site now renamed Former Pilkington Site and Adjoining Land.

Policy H1(e) for the Talbot Village site will be allocated in both Phases 2. This is justified in relation to the inspector's recommendation 8.202. The inspector has accepted that the site should remain as an allocation in the Plan. The development of this site should not inhibit the regeneration of the Central Area because the site will provide a different type of housing and meet a different market from that in the Central Area. There is a planning application for the site in submitted in 2000 which will shortly be determined. If the application is granted permission the lead-in time will be such that development will not commence prior to 2006 or Phase 2."

The council then dealt with issue (f).

26. It was proposed to modify table H1(f). The former Pilkington Tile Site and adjoining land was now shown as having a capacity for a minimum of 250 dwellings compared to the earlier figure of 160. The Talbot Village site was placed in Phase 2, but there was an asterisk which indicated that it "could be released earlier if monitoring shows it to be necessary". The total number of dwellings was increased from 2705 to 2765.
27. So far as employment was concerned, the defendant's statement said this:

"The inspector gives two reasons in support of his recommendation, namely:

- That there is a surplus of employment land in the borough against the Structure Plan requirement -- 42.52 hectares against 29 hectares.

- A concern that the yield from housing sites may be less than forecast, potentially placing pressure on greenfield sites.

I will deal with each of these in turn.

The Bournemouth, Dorset and Poole Structure Plan establishes a target of 29 hectares to be developed for employment purposes over the plan period to 2011, under Economy Policy [A]. This target is a net addition to the existing stock of employment land. In commenting on the relative availability of employment land, the inspector acknowledges the importance of providing a choice and range of sites in order to meet the needs of existing firms and inward investment. This must be set against the guidance contained in Regional Planning Guidance for the South West which identifies the conurbation as a sub-regional 'capital' centre and a location for further economic expansion, (policy SS13 of RPG10). Whilst Poole is fast approaching its Structure Plan target, it is considered vitally important to protect the remaining allocated employment land for such purposes given the known constraints upon the outward expansion of the principal urban area.

Whilst the Revised Deposit Plan, allocates 42.52 hectares of land, it should be recognised that the availability of employment sites is not static. For instance, 5.62 hectares of Employment Land allocated under Policy E1 of the emerging First Alteration was recorded as being under construction, or completed, during the period 30th September 2002-30th March 2003. As of 1st May 2003, it is estimated that 35.42 hectares of allocated Employment Land remains undeveloped, of which 18.43 hectares might be deemed truly available in the immediate - short term. This is owing to factors such as temporary use and the retention of land holdings for future owner expansion. With particular regard to the requirements of indigenous firms, the importance of providing a choice and range of truly available sites was borne out at the recent 'Making Poole a better place to do business' event. The policy framework was generally viewed as imperative given the pressure for residential development and the respective differential in land use values. It is evident that some isolated employment sites and premises have been lost to alternative uses where accrued benefits outweigh the employment value of the site. Thus historic (2000-2003) and potential losses of employment lands to alternative uses need to be offset against the development of sites, as described in the Employment Background Paper, published 2002. This will be accentuated by the loss of employment land in the Central Area, where isolated employment sites have been allocated for mixed-use development as part of the Poole Bridge Regeneration initiative. Many of displaced uses will require sites or premises elsewhere within the borough. Once again, these factors highlight the need for choice and range of available sites.

The inspector acknowledges that, '... environmentally, it (the Bourne Valley site) would be suitable for a range of employment uses'. The council supports this view. The site forms part of an established employment area, with good transport links and its proximity to residential areas offers a potential resident workforce. It has been cleared and is understood to be capable of accommodating buildings and hard surfacing, without need for substantive remediation. Thus the site makes a valuable contribution to the choice and range of Employment Sites within Poole, which could be brought forward for development in the short-term.

The council's response to the inspector's assertion that the yield from housing sites may be less than forecast is dealt with under objection 266/6, 283/3 (issues 8.54 to 8.58). In summary, the council have demonstrated how the house requirement will be met over the plan period. The inspector's assertion that the former British Gas site is required to ensure an adequate supply of housing in phase 1 of the plan period is not accepted. It follows therefore that the need for additional housing does not serve to outweigh the benefit of retaining this site for employment purposes.

The council duly acknowledges the recent ministerial statement on the release of employment land to residential use. An assessment of the suitability of allocated employment sites for housing development was undertaken as part of the review of the Local Plan and it is considered that, in planning terms, there is a realistic prospect of this site being brought forward for employment use."

28. The claimant made very detailed representations in response to the defendant's statement. It was argued again that there was an over supply of employment land in the borough, and, whilst the housing allocations appeared sufficient on paper, the yield was likely to be less in practice, thus increasing the need to release greenfield sites. It is fair to say that these arguments were not new. They tended to be a restatement of the claimant's position, bolstered by appropriate references to the inspector's conclusions in its favour. The claimant's representations were very fully summarised in the defendant's response. The defendant's response in relation to the housing supply issue largely reiterated the information contained in the earlier statement, but amplified the reference to sites where "implementation is commencing" by adding three examples:

"e.g Kingland Road, Pitwines Sites and the Goods Yard Site."

29. When dealing with an expression of support for the council's justification for allocating the Talbot Village site, the council yet again made the point that it was confident that the housing provision to 2011 would be easily met. In response to a contention:

"Due to the difficulties in the Central Area the council should have a contingency in place to provide flexibility in meeting the housing requirement. It is thus proposed that the land at Bourne Valley Road is allocated for residential development."

the council said this inter alia:

"The Plan which is now close to adoption is an alteration of the adopted Poole Local Plan which demonstrates how the strategic housing requirement will be met. The council has confidence that the sites in the Central Area will come forward and yield the necessary levels of housing and is working with the landowners to progress the regeneration proposals. The allocated sites have minimum housing figures assigned to them which are likely to be exceeded. There is unlikely to be a shortfall in housing provision in Poole and on the contrary it is likely that the regeneration will exceed the anticipated levels of housing achieved. Housing provision is systemically monitored in a comprehensive manner enabling the council to ensure the necessary provision.

There is thus no justification for including existing employment land as part of the housing allocation. There is no justifiable need for further housing provision which would outweigh the benefit of retaining this site for employment purposes."

30. Finally, in its response to the further representations relating to employment, the council said this:

"The availability of employment land relative to the Structure Plan target is healthy, but is considered necessary in order to provide a genuine choice and range of sites to meet the needs of local firms and inward investment.

The inspector's recommendations have been fully considered, but in this instance the council are confident that the borough's housing requirement can be satisfied without the need for further housing allocations, as elaborated in the council's response to representations in the Housing Chapter. In arriving at the Employment Land allocations put forward in the Deposit Draft of the First Alteration, an assessment of the suitability of individual sites for residential use was undertaken in accordance with the guidance set out PPG3. This led to the re-allocation of the Branksome Triangle site to residential use (since de-allocated).

Policy SS13 of the Regional Planning Guidance for the South West identifies the Poole-Bournemouth conurbation as a 'Sub-regional Capital Centre' and a suitable location for further economic expansion. It is noteworthy that overall completions for the Bournemouth, Dorset and Poole area over the period 1994 to 2003 are below the average anticipated for this period, with Poole being one of the three authorities effectively propping up overall completions to date. There are known to be concerns as to whether some significant allocations outside of the borough can realistically be brought forward and completed within the Structure Plan period and this issue will undoubtedly be addressed through the current review of the Structure Plan. Relatively high take up rates of Employment Land have been observed over the last two years (indicated by development under construction and completions). This has already served significantly to reduce the quantum of available allocated Employment Land.

Land retained for owner occupation/expansion has served to limit the number of sites that are genuinely available in the immediate-short term to the market in Poole as reflected in reports of firms experiencing difficulty in finding suitable sites. A number of isolated employment sites have, however, been lost to alternative uses over the Structure Plan period. The intent of the Structure Plan target is to bring forward new employment development over and above that in active use, thus it is pragmatic that completions to date be regarded as a gross figure from which losses can be deducted. Indeed it is evident that mixed-use allocations within the Central Area may well displace some 14 hectares of employment use, in favour of mixed-use development. Whilst employment use (principally B1 office) is included within the mix it is inherently different from the existing format (predominantly B2/B8). Firms such as Pilkington Tiles, Sydenhams Timber Yard and James Brothers Limited will need to consider relocation in order to enable the implementation of a mixed-use development. The land take of employment use as part of a mixed-use scheme is likely to be relatively small albeit unrepresentative of its inherent employment potential.

In addition to the quantitative aspect of supply, there are also spatial and qualitative considerations. Recent completions at Alder Hills and Sharpe Road have seen the building out of previously vacant employment sites. As such, the land at Bourne Valley presents one of the few remaining opportunities for new employment development within the eastern part of the borough. Equally, there are few significant Employment Land allocations in the adjacent parts of Bournemouth. This spatial aspect is considered important if a genuine choice of sites and premises is to be maintained to meet the particular needs of individual firms, as well as serving to facilitate opportunities for local employment and reducing the need to travel. The allocated site forms part of a larger Existing Employment Area, characterised by a mix of infrastructure and industrial uses, presenting the opportunity for an agglomeration of employment uses and functional linkages to be formed. The successful conversion of the former generator house has helped to reaffirm the potential for the employment use of premises fronting Coy Pond Road."

31. Submissions and Conclusions: It is convenient to deal at the outset with a detailed criticism of the last of those passages from the defendant's responses. On behalf of the claimant Mr Harris QC submitted that the defendant had "speculated" as to what might be addressed in the review of the Structure Plan, and that such a speculation was an inappropriate and/or immaterial consideration. I do not agree. In considering the implications of an over supply of employment land within its own area the defendant was entitled to have regard to the supply of employment land in adjoining local authority areas. The weight to be given to that consideration was a matter for the defendant's planning judgment. Equally the defendant's planning officers were entitled to form a judgment as to the likely response of the Structure Plan authority to concerns about significant allocations outside the borough. The officers' view that "this issue will undoubtedly be addressed through the Structure Plan" is not to be dismissed as mere speculation, nor can it be said to have been irrelevant or immaterial. This is, in any event, a very minor part of overall picture that was being presented in the responses insofar as they dealt with employment.
32. Pausing there, it is plain from the inspector's reasoning that he did not recommend that the site should be reallocated from employment use to housing because it was intrinsically more suited for housing rather than employment use. He considered that the site was suitable for either use, but concluded that it should be reallocated for housing because he considered that meeting the housing need outweighed the benefit of retaining the site for employment purposes. Thus there were two sides to the balancing exercise carried out by the inspector, housing need and employment need.
33. In his skeleton argument Mr Harris contended that the defendant's statement and responses did not deal adequately with either of the two sides of the balance, housing and employment. In his submissions before me he fairly conceded that the reasons given by the defendant on the employment side of the balance were adequate, at least by the time that the claimant received the responses. I accept that adequate reasons have to be given at both stages of the process. If inadequate reasons are given at the Regulation 27 stage, it may not be possible for a claimant to establish that he has suffered any substantial prejudice for the purposes of section 287(1)(b) if adequate reasons have subsequently been provided at the Regulation 28/29 stage. This will not always be the position. Each challenge under section 287 is fact sensitive. There may be cases where the inadequacy of the reasoning at the Regulation 27 stage has prevented an objector from making meaningful submissions in response to a proposed modification. In such a case it is possible that, even if adequate reasons have been given at the Regulation 28/29 stage, substantial prejudice may nevertheless have been suffered.
34. It is unnecessary to explore such possibilities in this judgment, because I am entirely satisfied that, whatever criticisms might be made of the statement, the claimant was certainly not prevented from making very full and detailed representations about both sides of the balancing exercise. I do not accept that there was any inadequacy in the statement, insofar as it dealt with the employment side of the balance, and, to be fair to Mr Harris, he did not develop the submission in his skeleton argument that the defendant's reasoning in relation to employment in the statement was inadequate. Since he conceded that by the time of the responses the reasoning in relation to employment was adequate, I am satisfied that there could have been no substantial prejudice so far as the employment side of the balance was concerned in any event. Anyone reading the employment responses could have been left in no doubt as to why the defendant wished to retain the employment allocation for the site, notwithstanding the fact that on paper there was an over supply of employment land by comparison with the Structure Plan requirement.
35. In simple terms, and I acknowledge that this may be an oversimplification, the defendant's position in relation to the employment allocations was the reverse of its position in relation to the housing allocation. In respect of the latter the defendant was expressing confidence that the allocations would come forward in practice. In respect of the former, it was concerned that, whatever the figures might show, there had been losses and in practice there might be difficulties in the allocated employment sites actually coming forward.
36. Since both the inspector and the defendant were engaged in a balancing exercise, Mr Harris submitted that the defendant had to give adequate reasons in respect of both sides of the balance. If its housing reasoning was inadequate, then its decision would be flawed, even if no complaint could be made about its employment reasoning. On behalf of the defendant, Mr Lewis did not dissent from this proposition in principle, but submitted that the defendant's housing reasoning was adequate and intelligible.
37. I turn, therefore, to the claimant's criticism of the defendant's housing reasoning. Before doing so it is important to note that this is not a Stirk type case (Stirk v Bridgenorth District Council [1997] 73 P&CR 479). In that case the local planning authority had merely reiterated a statement which it had made before the local plan enquiry had commenced, and in so doing had completely ignored not merely the local plan inspector's report, but also certain modifications to the Structure Plan which had been made by the Secretary of State. In the present case the defendant identified the inspector's concern that the housing allocations may not meet the Structure Plan requirement and sought to respond to that concern. The claimant criticises the adequacy of that response, rather than the fact that there was simply no response at all.
38. It is said that the inspector concluded that the yield from the sites which could start in Phase 1 could be optimistic. He acknowledged that the plan had some flexibility, but, in effect, wanted greater flexibility so that the plan could deal with any shortfalls which monitoring revealed. He sought to achieve that greater degree of flexibility in three ways. Firstly, by not deleting the Talbot village allocation which had been urged upon him by a number of objectors. He kept Talbot Village in phase 2, but recognised that "that it could be brought forward if monitoring shows this to be necessary". Secondly, he recommended that two smaller sites, one of them the claimant's site, be allocated for housing, although that recommendation was offset to some extent by the fact that he deleted another housing site. Thirdly, he recommended early monitoring. The defendant accepted the first and third of those recommendations (I will deal with specific criticisms of the council's treatment of the Talbot Village site in due course), but it did not accept the second.
39. Mr Harris submitted that the defendant's reasons in both the statement and the responses were merely repetitions of previous arguments which the inspector had accepted and taken into account in striking the balance. Thus, for example, the inspector had accepted that the provision of housing throughout the plan period was in excess of the Structure Plan requirement, he had referred to the plus or minus 10 per cent range and to the fact that minimum capacities were given for allocated sites and he had also recommended that the Pilkington Site be extended, all of these being matters to which the council referred in its statement and responses.
40. Conscious as I am of the need to read the reasoning in such documents as a whole, in my judgment the key to the defendant's approach is to be found in the proposition that:

"The sites where implementation is commencing are showing higher housing opportunities than the Plan has suggested which will increase the housing allocations ... The council is confident that the housing provision to 2011 will be easily met."

It will be recalled that in that part of its statement dealing with employment, the defendant had said in terms that the inspector's assertion that the former British Gas site was required to secure an adequate supply of housing in phase 1 of the plan period was not accepted.

41. I accept Mr Lewis's submission that it is necessary to stand back. There is a danger that the mass of detail will obscure the answer to the simple question, why did the inspector want the additional flexibility which he sought to achieve in the three ways described in paragraphs 8.103 and 8.104 of his report? The answer is because, although he was not fully convinced by the detailed argument on each side and could not recommend precise figures, not least because he was dealing with a dynamic situation, he felt that the yield from the sites which would start in Phase 1 "could be optimistic". It is plain from the defendant's reasoning in both the statement and the responses that, based on its experience of what was happening in relation to the allocated sites, it did not share that concern. It followed that it did not accept that there was a need for additional flexibility over and above that which had been incorporated into the Plan and did not, therefore, accept that two smaller sites needed to be allocated to the housing allocations in order to provide that increased measure of flexibility.
42. The claimant submits that this reasoning on the part of the council is "nowhere near sufficiently analytical". It asks, well, which sites were being referred to by the council, how representative were those sites, what was happening on other sites? The adequacy of reasoning will depend upon the nature of the issue raised. It will be noted that the inspector's underlying concern that "the yield from Phase 1 could be optimistic" (my emphasis) is expressed in general terms. He made it clear that he was not able to put forward any figures, nor did he identify any particular site about which he was concerned. Had he done so, and had he said, for example, that site X was unlikely to come forward before 2007 because it was contaminated and he was not satisfied that the remediation measures could be devised before that time, then the defendant might have had to deal with the inspector's detailed concerns if it was to grapple with his reasoning. The short answer to the claimant's complaint is that there simply was no detailed analysis to which the defendant had to respond. The inspector, as he was entitled to do, had expressed a planning judgment in very general and somewhat tentative terms. The council disagreed with that planning judgment. It followed that it did not accept that there was a need for greater flexibility.
43. It is said that the defendant's reasoning does not deal with the issue of phasing which was a "key component" of the inspector's concern. It will be recalled that in terms of the overall approach to phasing in the Plan the inspector, in effect, endorsed the defendant's position. There was no separate phasing point beyond the inspector's concern that the yield from the allocated sites in Phase 1 could be optimistic, a concern which the defendant did not share.
44. Lastly it is submitted that the defendant's responses were inaccurate as a matter of fact. The reference to "the sites where implementation is commencing" was incorrect. Although no sites were identified in the statement, three sites were listed in the responses: Kingland Road, the Pitwines Sites and the Goods Yard site. In a witness statement, dated 21st June 2004, Mr Spiller, a strategic planning officer employed by the defendant, said that there had been preapplication discussions in respect of those three sites and also in respect of Talbot Village. The claimant points out that the defendant accepts that the development of Talbot Village "will not commence prior to 2006 or Phase 2".
45. The claimant could have asked which sites were being referred to in the statement, it did not do so, and, in any event, the answer was provided in the responses.
46. Dealing firstly with the three sites that are mentioned in the responses, it is true that implementation was not commencing in terms of building taking place on the ground, as would have been readily apparent to anyone who was familiar with the locality. However, there had been preapplication discussions or negotiations. Had the statement referred to allocated sites which were "coming forward", or some such other phrase, then there could have been no possible complaint on the part of the claimant. Does the fact that rather than referring to preapplication negotiations the report referred to sites where implementation was commencing fatally flaw either the statement or the responses? It is important to bear in mind that such documents are not to be construed as though they were statutes. The defendant's officers were not writing an examination paper in town and country planning, much less were they required to pass that paper with a starred first.
47. Inevitably in challenges under section 207 the spotlight tends to focus upon a particular objection, or objections, and the council's response thereto. In considering whether a local planning authority's reasoning is adequate, it is important that any criticisms are considered against the background of the task faced by the local planning authority. In the present case the inspector reported upon hundreds of objections. In many cases his recommendation was that there should be no modification to the Plan, but he recommended scores, if not hundreds, of modifications. Many of these recommendations were relatively minor and consisted of updating, clarification or amplification, and were of little substance, but, nevertheless, the defendant had to deal with them all. It is in this context that the claimant's criticism of its reply to the inspector in relation to this particular objection has to be considered. In this context I do not accept that the reference to sites where "implementation was commencing" fatally flaws the defendant's reasoning. If preapplication discussions were resulting in higher figures than the minimum figures set out in policy H1(f), that was plainly a factor that the defendant was entitled to take into consideration in deciding whether or not the inspector's concern that the yield from Phase 1 could be optimistic was well founded. It must be borne in mind that the statement and responses were not addressed to the world at large, wholly ignorant of circumstances in Poole, but to those who had been participating in the Local Plan process. It would have been readily apparent to those with an interest in the housing allocations in the Plan that development had not actually started on the ground at, for example, the Goods Yard site.
48. The responses did not refer to the Talbot Village site and I do not accept the submission that because it was subsequently referred to without any further comment in Mr Spiller's witness statement and is in Phase 2 rather than phase 1, that this in some way invalidates the reasoning given in the statement and responses. As a response to the inspector's underlying concern, which was expressed in general terms, the defendant's reasoning was perfectly adequate.
49. The claimant made a somewhat last minute criticism of the apparent inconsistency between the defendant's acknowledgment in the statement that if the application for the Talbot Village site was granted planning permission, the lead-in time was such that development on that site would not commence prior to 2006 or Phase 2, and the note beside the asterisk in the modification to policy H1(f) that placed the site in phase 2, but said that:

"... it could be released earlier if monitoring shows it to be necessary."

50. It will be recalled that in the Draft Plan the Talbot Village site had been placed as straddling Phases 1 and 2. The inspector had placed the site into Phase 2, subject to the proviso about monitoring. There might conceivably have been some force in this complaint had it been advanced by those who were directly interested in the Talbot Village site, but I am not satisfied it could have had any bearing upon the defendant's approach to the claimant's site. The defendant did not share the inspector's concern that the Phase 1 sites (which by that time did not include the Talbot Village site) would not yield sufficient dwellings. Therefore, strictly speaking, there was no need to add the proviso that the Talbot Village could be released earlier if that was shown to be necessary.
51. One thing is certain, the defendant did not rely upon the existence of that proviso as a reason for not allocating the claimant's site for housing. It is plain from the statement that the defendant did not envisage that development would commence on the Talbot Village site before Phase 2. Whilst there is an apparent anomaly, I suspect that the explanation for the anomaly is that it is no more than an illustration of the dynamic situation referred to by the inspector. Whilst the council was happy to adopt the inspector's recommendation, by the time of the statement in October 2003 it had become clear that development at the Talbot Village site would not in fact commence before Phase 2, but the inspector's recommendation was allowed to remain, even though the proviso suggested by him had been overtaken by events.
52. That leads me on to one final matter, discretion. That issue would have arisen if I had felt that the reference to "implementation commencing" meant that the defendant's reasoning in the statement and responses was inadequate. For the reasons set out above, I am satisfied that it is plain which sites the defendant was referring to. It is equally clear that whilst it was relying in October 1993 and February 1994 upon preapplication discussions rather than building on those sites, planning permissions have now been granted in the case of two of the sites. The Seldown site on which a minimum of 75 dwellings was allocated in table H1(f) has planning permission for 86 dwellings. Pitwines, shown as a minimum of 430 in table H1(f), has planning permission for 504 dwellings. On the Goods Yard Site there is no permission, but preapplication discussions indicated 225 dwellings as opposed to a minimum in table H1(f) of 190. Thus, even if I had been satisfied that there was some infelicity in the council's reasoning, there would have been little point in quashing the policies and sending the matter back to the council to enable it to say, with the benefit of hindsight: "the reason we gave for not sharing the inspector's concern has proved to be justified". The point is, in any event, academic since I am satisfied, for the reasons set out above, that the defendant did grapple with the inspector's underlying concern which led him to propose greater flexibility and hence the allocation of the claimant's site.
53. For these reasons, this application is dismissed.
54. MR LEWIS: I am obliged to your Lordship. I would ask your Lordship formally to so order. My Lord, albeit that this has been a case which lasted longer than a day, I know that my instructing solicitors has prepared a summary schedule of costs. I don't think it has come to the court yet, but I have one here which I will hand up. It has gone to the other side, albeit very recently.
55. MR HARRIS: I make no complaint about that and I don't resist the application.
56. MR JUSTICE SULLIVAN: Either in principle or in detail.
57. MR HARRISN: As to either. I have seen the figure, I have seen the way it is broken down, we make no complaint about it. My learned friend is about to ask for his costs and he should have them.
58. MR JUSTICE SULLIVAN: Just to make sure I say the right figure in the order it's £12,330, yes?
59. MR LEWIS: Yes, my Lord, thank you.
60. MR JUSTICE SULLIVAN: Then the formal order is that the application is dismissed, the claimant is to pay the defendant's costs, those costs are to be summarily assessed in the agreed sum of £12,330. Thank you.
61. MR HARRISN: My Lord, the White Book tells me there are five good reasons why I should apply for leave to appeal now in the event that that is a prospect. My Lord, there are criteria with which your Lordship is very familiar. The only one that I can see is vaguely relevant to this application is that there are real prospects of an appeal succeeding. Given your Lordship has just given judgment, I don't hold much hope of that submission succeeding before your Lordship, but I make an application that leave be granted for permission to appeal on the housing limb of the reasons challenge for the reasons I set out in my skeleton argument. We say that that is an argument which has a real prospect of success before an appellate court. That is the application.
62. MR JUSTICE SULLIVAN: Thank you very much, Mr Harris. Since you very kindly, as it were, made your submissions by reference to the submissions you made earlier I will respond, as it were, in kind by reference to the reasons for the judgment I have just given. For the reasons that I have just given, I am not satisfies that there is a real prospect of success and therefore I refuse permission.
63. MR HARRIS: I am grateful.
64. MR JUSTICE SULLIVAN: Thank you very much.