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
		Thursday, 9th December 2004

1. MR JUSTICE DAVIS: Introduction
2. This is a claim, brought pursuant to the provisions of section 288 of the Town and Country Planning Act 1990 by proceedings issued on 29th June 2004, seeking to quash a decision to grant planning permission contained in a letter dated 19th May 2004. The decision was the joint decision of the First Secretary of State and of the Secretary of State for Trade and Industry.
3. The decision in question related to a very large area of land, well in excess of at least 200 hectares near Northwich in Cheshire. Most, if not all, of the land is owned by a company called Ineos Chlor Limited (formally ICI Chlor Limited). As is quite widely known, that part of Cheshire is geologically suited to brine and salt extraction which, historically, has taken place there for a very long time indeed; and Ineos Chlor Limited is a major employer in the region, engaged in such activities and other related activities, including the production of chlorine.
4. An initial planning application having been refused, a revised planning application was lodged by Scottish Power UK PLC on 18th February 2002. The application was for consent with regard to the site in question for "works including drilling of exploratory well and other boreholes, laying of pipelines (water/brine), controlled solution mining of rocksalt to create eight underground cavities for the storage of natural gas, conversion of six existing salt cavities to saturators, laying of natural gas pipelines, construction of above ground gas processing plant, access roads, landscaping and ancillary development at Holford Brinefield".
5. The application site was almost entirely within the area of Vale Royal Borough Council as local planning authority, although a small element was within the element of Congleton Borough Council, the other relevant local planning authority.
6. The site in question may broadly be described as rural, although quite near to towns such as Northwich, Middlewich and Knutsford. As the application connoted, there were a number of elements to the consent sought, including drilling and exploratory work; six existing wellheads associated with cavities in existing brine field site were to be converted to saturators; eight boreholes were to be constructed with a view to solution mining over a period of time; brine wellheads would be progressively replaced by gas wellheads; a gas processing plant would be constructed on the site of a disused airfield within the area; in addition, underground pipelines and electric cables were to be laid. Certain other works, including adaptation of an existing pumphouse were also proposed. Perhaps the major feature of the proposed works was the construction of eight huge underground salt cavities for the storage of natural gas. Convenient plans of the proposed works may be found in bundle A at pages 504 and 505. Extensive landscaping works were also proposed. It was asserted, all the same, on behalf of the applicants in evidence lodged in the course of the inquiry, that, of the total planning application site, less than 2 per cent would be developed above ground for the life of the storage projects. The construction works themselves were adjudged to be likely to last some four years.
7. Although the planning application had its supporters, Ineos Chlor Limited being one of them, it had very many opponents. At all events, Cheshire County Council (the application being considered a county matter) on 21st May 2002 resolved to refuse permission. Its ground of refusal, as revised, was that the scale and extent of the proposed development would be inappropriate within the open countryside and contrary to policy GEN3 of the Cheshire Replacement Structure Plan and policy GS6 of the Vale Royal Borough Local Plan. Against that refusal Scottish Power appealed.
8. In due course a planning inquiry was held. It lasted over some 19 days during November and December 2002. The appeal was fiercely contested in circumstances of considerable local publicity. I was told that around 5,000 written objections were lodged. Around 20 town and parish councils united to form a grouping called "Councils Against the Plant" and made submissions opposing the application. Local residents also formed a group known as "Residents Against the Plant", also united in opposition to the application. The site was, as has been said, primarily located within the Vale Royal Borough, and the Vale Royal Borough Council also opposed the plan, as did Congleton Borough Council. Much expert and other evidence was adduced at the inquiry.
9. It is not difficult to imagine or to sympathise with the concerns of the objectors, which concerns were fully deployed before the Inspector. Some were concerned, for example, at what they saw as the despoliation of the countryside at the expense of commercial profit. Some were concerned at the effect on their homes (and the value of their homes) and the effect on their families occasioned by the construction works, estimated, as they were, to last some four years. Some were concerned at the noise, emissions, increased traffic, ecological damage and general disruption that the works would entail. Many expressed grave concerns at the long-term health and safety implications of these vast subterranean natural gas stores. Many objectors would have held all of these concerns.
10. The principal issues falling for consideration were: (1) the need for the proposed development; (2) the effect of it on the open countryside; (3) health, safety and risk considerations; (4) ecological and conservation matters; (5) traffic matters; and (6) noise and "bad neighbour" issues. There were also issues as to human rights.
11. The Inspector issued his report (92 pages in length excluding appendices) on 1st May 2003. In preparing his report, the Inspector had had the assistance of advice from an expert technical assessor, whose 263 page report was annexed to the Inspector's report. Both reports would appear to me to be conspicuously thorough. The overall conclusion of the Inspector was that he considered that "the benefits of the proposal would be far outweighed by the disbenefits"; and he recommended to the Secretaries of State that the appeal be dismissed and that planning permission be refused. In the result, by their decision letter dated 19th May 2004, the Secretaries of State disagreed with the Inspector's recommendation. They allowed the appeal of Scottish Power UK PLC, who had also by now been joined as appellants by Scottish Power Gas Limited, and granted planning permission, subject to the conditions annexed.
12. The four claimants in these proceedings now seek to challenge that decision of the Secretaries of State. The first claimant is Cranage Parish Council, which had been part of the "Councils Against the Plant" group and which had actively participated in the inquiry. The application site lies in part within the area of the Cranage Parish Council.
13. The second claimant, Mr Bennion, lives and works at Stublach Dairy Farm, Byley. His farm is very close to the proposed gas wellheads and pipes. He is a tenant farmer, his landlord being Ineos Chlor Limited, farming 118 acres or thereabouts, the principal activity being milk production. He took over the tenancy from his father in 1993. The tenancy in question contains a reservation in favour of the landlord for mineral workings and the laying of pipes. Mr Bennion holds great concerns for the health and safety of himself and his family if the works are permitted. Further, he has concerns about the disruption to his home and family life caused by the works; and points out further that his dairy and cattle operations will be greatly impeded and affected whilst the construction works are being carried out, if not after also. Various of his objections are summarised in paragraph 6.36 to 6.38 of the Inspector's report.
14. The third claimant is Mr Oakley. He lives at Earnshaw House, near to Byley itself. The house was purchased by him and his wife in 2000 primarily for its peaceful location and excellent views. It lies some 500 metres from the site of the proposed gas processing plant and is very close indeed to the site of the proposed high pressure gas pipelines. He expresses concerns about emissions and noise levels during construction and increased traffic and risk from such traffic. He also has expressed very strong concerns indeed as to the health, safety and, in particular, risk considerations arising. In his particular case, it may be noted, the transfer to him of Earnshaw House included a reservation in favour of Ineos Chlor Limited's predecessor in title for mines and minerals and a right to use cavities under the property for, amongst other things, gas storage. Mr Oakley's objections advanced to the Inspector are summarised at paragraphs 6.1 to 6.5 of the Inspector's report.
15. The fourth claimant is Mrs Worthington, who also lives in Byley. Her principal objection, as summarised in paragraphs 6.31 to 6.32 of the Inspector's report, is as to the increased traffic levels during construction. She also expresses general concerns as to the risks involved in this proposed planning development.
16. Each of the individual claimants has, without objection, put in a witness statement for the purpose of these proceedings, expanding on their respective concerns.
17. The hearing before me lasted two days, taking place on 6th and 7th December 2004. The claimants were represented by Mr William Upton, who had also appeared at the inquiry. The Secretaries of State were represented by Miss Nathalie Lieven. The two Scottish Power companies were represented by Mr William Hicks QC and Mr Neil Cameron, both of whom had also appeared at the inquiry.
18. It is absolutely obvious that the decision of the Secretaries of State has given rise to the greatest concern on behalf of the objectors. Personally, I have no difficulty in understanding that, any more than I have difficulty in understanding the level of disappointment caused by the Secretaries of State's decision to depart from the recommendation of the Inspector.

Issues

19. I turn then to the issues. Before doing so, I should make one or two elementary observations, which, although very familiar to lawyers, may not necessarily be appreciated by others. First, it is not the function of this court to ask itself whether it would itself have granted or refused planning permission; that, by statute, is a decision conferred on the relevant decision maker: that is, in this particular case, the two Secretaries of State. Second, and as a corollary of that, this court is only entitled to interfere under section 288 by way of quashing the decision letter on what I might call proper public law grounds: for example, if the Secretaries of State have erred in law in reaching their decision, if they have failed to take into account relevant considerations or taken into account irrelevant considerations, or if they have reached conclusions to be categorised as unreasonable in the public law sense. A convenient summary of the applicable general principles to be applied in the exercise of powers under section 288 can be found in the much quoted decision of Forbes J in Seddon Properties Limited v Secretary of State for Environment [1978] JPL 385.
20. Mr Upton naturally emphasised before me that the claimants, and no doubt many other objectors, strongly disagree with many of the conclusions reached by the Secretaries of State; but necessarily he accepts that many of those conclusions are not open to challenge in this court having regard to the well-established legal principles. The points of challenge which he does pursue are, in summary, these.

(1) First, he submits that the Secretaries of State failed to give proper regard to the development plan.

(2) Secondly, he submits that the Secretaries of State have failed adequately or at all to consider (a) the availability of alternative storage sites, other than salt cavity storage sites, to meet the generalised need identified; (b) the nature of the adverse impact of the proposed development on the character and appearance of the countryside; (c) the public's perception of the risk posed by this proposed development; (d) all of the relevant considerations cumulatively in the balancing exercise the Secretaries of State purported to identify.

(3) Thirdly, he submits that the Secretaries of State have failed to give sufficient, clear and intelligible reasons for their decision.

(4) Fourthly, he submits that the Secretaries of State have failed to give proper consideration to the human rights of the individuals affected, specifically by reference to Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol to the Convention.

21. I will take those issues in the order advanced by Mr Upton.

Legal Framework

22. The legal framework for development plans and their place in the relevant decision making process is, in summary, as follows. By Planning Policy Guidance Note 1, revised as issued in February 1997, the Government's general policy and principles on various aspects of planning are set out. By paragraph 40 a commitment to a plan-led system of control is stated, it being said that the planning system as a whole, and the preparation of development plans in particular, is the most effective way of reconciling the demand for development and the protection of the environment: see, for example, paragraphs 39 to 41 and 54 to 55 of PPG1.
23. So far as legislation is concerned, section 36 of the Town and Country Planning Act 1990 sets out the requirement for local plans and stipulates certain prescribed contents. Section 54 provides a meaning for "development plan" outside Greater London and the metropolitan counties. Section 54A provides as follows:

"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

Section 70(2) provides as follows:

"In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."

Regulation 7 of the Town and Country Planning (Development Plan) (England) Regulations 1999 requires that a local plan contains a reasoned justification of the policies formulated in the plan.

24. The general approach to the application of section 54A (as well also to the court's reviewing role of decisions under that section with regard to it) is very conveniently set out in the decision of the House of Lords in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447. That was a decision on section 18A of the Town and Country Planning (Scotland) Act 1972, which is in identical terms to section 54A of the 1990 Act. Thus, Lord Hope of Craighead said this, reading from page 1450 of the judgment:

"It requires to be emphasised, however, that the matter is nevertheless still one of judgment, and that this judgment is to be exercised by the decision-taker. The development plan does not, even with the benefit of section 18A, have absolute authority ...

The presumption which section 18A lays down is a statutory requirement. It has the force of law behind it. But it is, in essence, a presumption of fact, and it is with regard to the facts that the judgment has to be exercised. The primary responsibility thus lies with the decision-taker. The function of the court is, as before, a limited one. All the court can do is review the decision, as the only grounds on which it may be challenged in terms of the statute are those which section 233(1) of the Act lays down. I do not think that it is helpful in this context, therefore, to regard the presumption in favour of the development plan as a governing or paramount one. The only questions for the court are whether the decision-taker had regard to the presumption, whether the other considerations which he regarded as material were relevant considerations to which he was entitled to have regard and whether, looked at as a whole, his decision was irrational. It would be a mistake to think that the effect of section 18A was to increase the power of the court to intervene in decisions about planning control. That section, like section 26(1), is addressed primarily to the decision-taker. The function of the court is to see that the decision-taker had regard to the presumption, not to assess whether he gave enough weight to it where there were other material considerations indicating that the determination should not be made in accordance with the development plan."

Lord Clyde said this in the course of his speech, reading from page 1458 of the report:

"Moreover the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it."

Lord Clyde went on to say this:

"Correspondingly the power of the court to intervene remains in principle the same as ever. That power is a power to challenge the validity of the decision ... Section 18A has not innovated upon the principle that the court is concerned only with the legality of the decision-making process. As Lord Hoffmann observed in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780:

'If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.'

In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of those considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed those considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse.

Counsel for the Secretary of State suggested in the course of his submissions that in the practical application of the section two distinct stages should be identified. In the first the decision-maker should decide whether the development plan should or should not be accorded its statutory priority; and in the second, if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration. But in my view it is undesirable to devise any universal prescription for the method to be adopted by the decision-maker, provided always of course that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. In the particular circumstances of the present case the ground on which the reporter decided to make an exception to the development plan was the existence of more recent policy statements which he considered had overtaken the policy in the plan. In such a case as that it may well be appropriate to adopt the two-stage approach suggested by counsel. But even there that should not be taken to be the only proper course. In many cases it would be perfectly proper for the decision-maker to assemble all the relevant material including the provisions of the development plan and proceed at once to the process of assessment, paying of course all due regard to the priority of the latter, but reaching his decision after a general study of all the material before him. The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in the light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate."

25. In R v Leominster District Council ex parte Pothecary [1997] 3 PLR 91 it was stated by the Court of Appeal in England that what Lord Clyde said represented the law of England as well: see per Schiemann LJ at page 98.

Submissions - First Issue

26. Against that background it is Mr Upton's submission that the Secretaries of State have failed to have proper regard to the policies forming part of the development plan. On the contrary, they have, he submits, wrongly concluded that one of such policies, PS1, lent "some support" to the proposed development, when, on its proper interpretation, he submits, it lends no such support. Consequently, so the argument goes, the decision of the Secretaries of State to grant planning permission is vitiated by an error of law and/or by the fact that the Secretaries of State have taken into account a consideration not properly open to them.
27. Policy PS1 is contained in chapter 10 of the Vale Royal Borough Council's local plan written statement. That chapter is entitled "Public Services". Policy PS1 is formulated in these terms under the heading "Public Service Development in the Open Countryside/Green Belt":

"Proposals for public service development within the open countryside, areas of special country value or areas of significant local environmental value will be allowed, where it can be shown that they are essential to:

(i) the maintenance of an existing service or undertaking;

(ii) an existing source of employment;

(iii) the provision of a new scheme or undertaking

and provided it does not conflict with the relevant policies contained in the built environment and natural environment chapters and in particular does not detract from the rural character of the locality.

In the case of proposals in the green belt all development in addition to meeting the above criteria, must also preserve the openness of the green belt."

28. It was common ground before me that such policy is to be purposively read. It was also common ground before me that the decision maker is required, in considering policy PS1, to take into consideration the introduction, reasons and explanations and implementation discussions contained in chapter 10; in short, the entirety of chapter 10. Thus, the introduction reads as follows:

"Public service providers include a variety of bodies, in both private and public ownership, who carry out functions of a public character under statutory powers. They include the provision of facilities such as gas, water and electricity supplies. The Borough Council supports improvements to existing public services. As the population of the Borough increases and there is pressure for further development, there will be a need for new and improved public services.

This chapter provides guidance about how proposals for new public service development will be dealt with by the Borough Council. Sites which have already been identified for future public service development are shown on the proposals map. The policies also deal with potential future proposals for the re-use of redundant public service buildings, such as hospitals and schools. These policies aim to ensure that the needs of the population of Vale Royal Borough are satisfied, in terms of public service provision and that, where redundant public service buildings exist, the buildings or sites are brought into an appropriate alternative use.

The Implementation Section, at the end of this chapter, explains how the provision of public services relates to the policies and proposals of this Written Statement."

29. The "Reasons and Explanations" read as follows:

"(i) Statutory undertakers include private and public bodies, who carry out functions of a public nature, such as water supply, education and road, rail and water transport.

(ii) The Borough Council recognises that it may be necessary for statutory undertakers to carry out certain kinds of development in order to maintain and improve the provision of services.

(iii) Every effort should be made to minimise the impact of such development on the existing rural software.

(iv) A development within the Open Countryside, Green Belt, Area of Special County Value/Significant Local Environmental Value to be carried out by a statutory undertaker will be allowed where it is a limited development which will form part of and be essential to the provision and improvement of public services and utilities. Where uses such as hospitals, electricity generating plant and substations, gas distribution substations, water and sewage treatment installations and public transport and related facilities are already established on sites within these special areas, this would not inhibit the continuation, improvement or reasonable extension of the use. However, where a proposal is made to locate within Areas of Significant Local Environmental or Special County Value an entirely new development, or a significant addition to or consolidation of an existing facility the Council will require the various public bodies concerned to show compelling reasons why a site outside these areas was not considered by them to be acceptable; and development of this kind will not be allowed, where no such compelling reasons appears to exist.

(v) Proposals for the redevelopment or change of use of such public buildings and facilities for purposes unconnected with operational requirements, will continue to be assessed on their merits. This means that development considered inappropriate in these special areas will not be allowed."

30. The discussion concerning implementation starts with these remarks, under the heading "Public Services":

"A variety of public bodies and private organisations are involved in the provision of services for the public, and therefore in the implementation of the policies of this Plan. The Borough Council will aim to provide a framework for the actions of others through the application of these policies and the identification of sites for future public service development on the proposals map."

Thereafter there is a treatment in the implementation discussion of water supply, drainage and sewage, waste disposal, education and social services. Most of such discussion includes references to "the plan area". There is no specific reference anywhere in chapter 10 to natural gas storage and related works of the kind or scale proposed in the present planning application.

31. Another relevant policy, GS6 of the Vale Royal Borough Council, was contained in chapter 2 of the Local Plan Written Statement. That chapter is entitled "General Strategy". That, in the relevant respects, reads as follows under the heading "Open Countryside": "The character and appearance of the open countryside will be protected".
32. Although the wording is not precisely identical, it is, I think, plain enough, and it was not disputed before me, that the reference in the proviso to policy PS1 by the words "and in particular does not detract from the rural character of the locality" mirrors and is in substance the equivalent of the corresponding wording in policy GS6.
33. Before the Inspector there was much debate as to whether policy PS1 lent any support to the proposed development. Scottish Power argued that it did. The Councils Against the Plant and the Residents Against the Plant argued that it did not. It may be noted that Vale Royal Borough Council, whose local plan it was, expressly accepted that the proposed development was a public service development within the open countryside and that all the elements of the proposals were essential to the provision of a new scheme or undertaking. However, Vale Royal Borough Council submitted to the Inspector that the proposed development would detract from the rural character of the locality and also was not of a scale envisaged by policy PS1.
34. The Inspector, in effect, adopted a two stage approach to this particular issue. He first asked himself whether this was a public service development in the open countryside the elements of which were essential to the new undertaking. He then asked himself whether such proposal would be contrary to relevant policies, and in particular whether it would detract from the rural character and appearance of the locality. Given the structure of policy PS1, in my view that was a perfectly legitimate approach for him to take. On that approach the Inspector concluded in this way by reference to policy PS1:

"The appellant claims that the proposal has the benefit of VRBLP policy PS1 as it is a public service development in open countryside. However, the development plan should be read as a whole. The very clear thrust of the Public Services chapter in the VRBLP, from its introduction and through its reasons and explanations, is that the public services that are envisaged are those that have the effect of supporting the citizens of the Borough. The support evinced in the VRBLP is for new and improved services to support the Borough as its populations increases, with associated increase in pressure for further development. It is not a willy-nilly support for development simply because it relates to a public service. In the case of this appeal, whilst the appellant claims that local benefits would accrue, those benefits are not simply to do with improved gas supply; the plain and clear intention of the proposal relates to national aspirations for gas supply, any local advantage would be incidental. I consider that the proposal does not have the benefit of policy PS1."

35. The Inspector then went on to consider the proviso to policy PS1, taking that, realistically enough, as in effect co-extensive with the policy GS6. His conclusion was as follows:

"I conclude that the part of the proposal associated with the gas wellheads would result in development that would fail to protect the character and appearance of the open countryside contrary to the development plan, and VRBLP policy GS6 in particular."

He went on to say this at paragraph 9.46:

"Even if it the proposal did have the benefit of policy PS1, and I describe in paragraph 9.23 above that it should not, the benefits claimed for the proposal would not outweigh the harm to the open countryside that I describe. Underlining my conclusions on the matter of the effect on the open countryside is the very important consideration of PPG7, paragraph 2.14 of which says that the countryside should be safeguarded for its own sake."

36. The Secretaries of State, however, took a different view with regard to policy PS1. They said this in paragraph 16 of their decision letter:

"The Secretaries of State have considered the Inspector's conclusion on the application of VRBLP Policy PS1 [IR 923]. They have also taken into account VRBLP Chapter 10, 'Public Services', and the specific policies that relate to local public services, such as PS2. In the Secretaries of States' opinion, in the context of a Local Plan, it is understandable that such policies should focus on the future infrastructure requirements of public service providers that most directly affect the administrative district. However, the introduction to Chapter 10 refers to the provision of gas, water and electricity supplies and, in the Secretaries of States' opinion, such public services are most appropriately considered in a wider context, as they are provided over areas which stretch beyond the administrative boundaries of local authorities. The Secretaries of State also note that VRBLP Policy PS1 does not explicitly refer to 'local' public services or expressly exclude public service development that may make provision for facilities affecting people living outside Vale Royal's area. The supporting text to VRBLP Policy PS1 similarly refers to statutory undertakers who carry out functions of a public nature, such as water supply, education, and road, rail and water transport. In the Secretaries of States' opinion, the examples given in that supporting text indicate that VRBLP Policy PS1 contemplates the provision of public service facilities of benefit to the wider community. Overall, the Secretaries of State disagree with the Inspector and consider that the appellant is entitled to derive some support from VRBLP Policy PS1 although the proposed development is primarily in the national public interest with any local advantage being incidental [IR 9.23]. The Secretaries of State have also taken into account the supporting text to VRBLP Policy PS1 which indicates that, where such development occurs outside settlements, an open countryside location is preferred to a location within Areas of Significant Local Environmental or Special County Value."

37. The Secretaries of State dealt, as had the Inspector, separately with the proviso to policy PS1, in effect subsuming it into a consideration of policy GS6.
38. There was a detailed section, at paragraphs 24 to 36 in the decision letter, on the effect on the open countryside, which indeed the Secretaries of State in terms described as "an important consideration". The Secretaries of State accepted that policy GS6 applied here. The Secretaries of State concluded in this way on this point:

"VRBLP Policy GS6 seeks to protect the character and appearance of the open countryside. This is consistent with local (CRSP Policy GEN1), regional and national policies that seek to direct development to sustainable locations, mainly the larger settlements, using suitable previously developed land, which are accessible by non car modes of transport. The Secretaries of State consider that VRBLP Policy GS6 is of general application and that it does not purport to deal with any specific type of development. However, they accept that Policy GS6 applies to the proposed development. They also consider that, as the proposed development may be described as essentially industrial in character, its location in the open countryside would, in principle, be inconsistent with the objectives of Policy GS6. However, Policy GS6 does not purport to prevent all development in the open countryside."

The Secretaries of State went on to explain, however, why they were not persuaded to give the development's impact on the open countryside the weight ascribed to it by the Inspector: see, in particular, paragraphs 35 and 36 of the decision letter.

39. Then, in the overall concluding paragraphs, the Secretaries of State said this at paragraph 50 of the decision letter:

"The Secretaries of State conclude that there are no site specific or development specific policies in the Development Plan which apply to the proposed development. In their opinion, the Development Plan policies of most relevance to the proposed development are CRSP Policy GEN1 and VRBLP Policies GS6 and PS1. The spatial strategy of the Development Plan is consistent with government guidance in seeking to locate development in sustainable locations, mainly the larger settlements, and seeking to protect the open countryside. However, neither the national nor local policies preclude development in the countryside and, in the Secretaries of States' opinion, there will be occasions when necessary development cannot be located within a settlement. On such occasions, protection of the countryside will need to be balanced against the need for that development. VRBLP Policy PS1 acknowledges that public service development may occur in the open countryside. The Secretaries of State consider that VRBLP Policy PS1 applies to the proposed development. Policy PS1 provides support to 'essential' public service development in the open countryside, areas of special county value or areas of significant local environmental value. The Secretaries of State consider that the proposed development, as a whole, gains some support from VRBLP Policy PS1 but conflicts with VRBLP Policy GS6, and so is not in accord with the Development Plan."

40. Having so concluded, the Secretaries of State went on further to consider and weigh the arguments about the impact of the proposed development on the countryside against the need for the proposals. Detailed consideration was given to that, in significant part reflecting the conclusions previously set out in the decision letter. That section of the decision letter ended in this way at paragraphs 55 and 56:

"55. The Secretaries of State do not consider that there are any health, safety, ecological, nature conservation, traffic, noise, 'bad neighbour', or other matters which cannot be either adequately mitigated (whether by condition or as proposed in the planning obligation) so as to prevent the grant of planning permission, or which individually or cumulatively would justify the refusal of planning permission.

56. Having considered and weighed the countryside issues and the national public interest issues relating to energy needs, the Secretaries of State conclude that the energy benefits of the proposed development do outweigh identified concerns relating to the impact of the proposed development on the surrounding countryside."

41. Mr Upton submitted that the Secretaries of State were not entitled to conclude that policy PS1 "applied" to the proposed development and therefore lent "some support" to it: just because, as the Secretaries of State themselves concluded, in agreement with the Inspector, the development was not in accordance with GS6, and therefore by necessary implication was also not in accordance with the proviso to policy PS1 in that the proposed development would have detracted from the rural character of the locality. Either policy PS1 applied or it did not apply, he submitted, and here the application of the proviso meant that it did not.
42. But in a planning context such as the present, I find that approach, with respect, all too legalistic. It is perfectly possible and perfectly sensible to read policy PS1 in what I might call a bipartite way. The first part sets out a generalised policy approach of approval for public service development in open countryside where the necessary essential element or elements are satisfied; but that general statement is then qualified by the overriding requirement, by way of proviso, that there is to be no conflict with or detraction from other relevant policies there mentioned. Thus, the Secretaries of State were entitled to adopt the approach (which had also been, as it happens, the Inspector's approach) that they did adopt in treating policy PS1 in that way. Such an approach certainly comfortably fits within the choice of approach open to the decision maker; a freedom which Lord Clyde had expressly endorsed at pages 1459 and 1460 of the report of his speech in the City of Edinburgh case.
43. Mr Upton's second and more substantial point was this. He submitted that policy PS1 did not bear, and was not capable of bearing, the interpretation placed on it by the Secretaries of State. He, in effect, adopted the reasoning of the Inspector as set out in paragraph 9.23 of the Inspector's report.
44. This then gave rise to some debate before me - I am afraid in part somewhat encouraged by myself - as to the interpretative approach to be adopted in this context. After all, section 54, on the face of it, lends itself readily to what may be styled an ostensibly orthodox approach; that is to say, ascertain, on ordinary principles of purposive construction, taking the words used, the relevant surrounding circumstances and underlying policies into account, the true meaning of the development plan; then make the determination in accordance with that plan on its true interpretation; and then consider, where appropriate, whether material considerations indicate otherwise. But there are two difficulties with that. First, so schematic an approach to section 54A does not accord well with Lord Clyde's observations in the City of Edinburgh case. Secondly, and perhaps more fundamentally, such an approach to the interpretative task (what in Mr Fordham's Judicial Review Handbook, fourth edition, at paragraph 29.5.10, is styled the "hard edged" approach) is, in my view, established by a number of recent authorities not to be the correct approach in a planning context such as the present.
45. In Gransden & Co Ltd v Secretary of State for the Environment [1986] 54 P&CR 56, Woolf J, in dealing with issues relating to policies promulgated by the Secretary of State in circulars, commented by way of general observation at page 94:

"... it is essential that the policy is properly understood by the determining body. If the body making the decision fails to properly understand the policy, then the decision will be as defective as it would be if no regard had been paid to the policy."

46. In R v Derbyshire County Council ex parte Woods [1997] JPL 958, Brooke LJ said this:

"If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy (see Horsham DC v Secretary of State for the Environment [1992] 1 PLR 81, per Nolan LJ at 88). If there is room for dispute about the breadth of the meaning the words may properly bear, then there may in particular cases be material considerations of law which will deprive a word of one of its possible shades of meaning in that case as a matter of law.

This, in my judgment, is the underlying principle of law which Auld J was putting into words in his judgment in Northavon DC v Secretary of State for the Environment [1993] JPL 761. When discussing the meaning of the expression 'institutions standing in extensive grounds', the report reads at 763:

'The words spoke for themselves and were not readily susceptible to precise legal definition. Whether a proposed development met the description was in most cases likely to be a matter of fact or degree and planning judgment. He [the judge] said "in most cases" because it was for the Court to say as a matter of law whether the meaning given by the Secretary of State or one of his Officers or Inspectors to the expression when applying it was outside the ordinary and natural meaning of the words in their context. See Gransden (EC) v Secretary of State for the Environment (1987) 54 P&CR 86, per Woolf J, as he then was (upheld by the Court of Appeal [1987] JPL 465). The test to be applied by the court was that it should only interfere where the decision-maker's interpretation was perverse in that he has given to the words in their context a meaning that they could not possibly have or restricted their meaning in a way that the breadth of their terms could not possibly justify.' ...

If in all the circumstances the wording of the relevant policy document is properly capable of more than one meaning, and the planning authority adopts and applies a meaning which it is capable as a matter of law of bearing, then it will not have gone wrong in law."

47. It is true that ex parte Woods was a decision on a renewed application for leave to appeal. But both parties, it would appear, were legally represented; the judgment of Brooke LJ is detailed and fully reasoned; and the other two members of the Court of Appeal expressly agreed. Moreover, that approach was adopted by the Court of Appeal in the case of Wandsworth London Borough Council v Secretary of State for Transport, Local Government and Regions, 19th February 2003, [2003] EWCA Civ 142. It also has been adopted in numerous first instance decisions, including decisions by reference to section 54A of the 1990 Act.
48. Miss Lieven cited to me in this context a selection of cases both reported and unreported; she also being anxious that I should note (as I do) that those were decisions of judges with particular expertise in planning matters. Of these I may note by way of example the observations of Ouseley J in R v Oxford City Council ex parte J A Pye (Oxford) Ltd [2002] 2 P&CR 568, [2001] EWHC Admin 870 at page 581 of the report; and of Keene J in R v Secretary of State for Environment, Transport and Regions ex parte Tesco Stores Limited (19th October 2000) at paragraphs 27 and 28 of that judgment. Moreover, such an approach is not inconsistent with Lord Hope's and Lord Clyde's observations in the City of Edinburgh case.
49. There are in fact pragmatic reasons for this being the approach to be adopted in this particular planning context: which approach by no means of course mirrors the approach ordinarily otherwise adopted by the courts in other civil contexts: for example, interpretation of statutory instruments or of commercial contracts. For one thing, in the planning field policies and development plans of this kind are commonly drafted by planners for planners and often are very loosely drafted. They are not, putting it broadly, intended to be legally binding documents in the strict sense. For another, the relevant phrases used will often be hardly sensible of bearing a strict hard edged interpretative approach and resort will be needed to elements of value judgment: for example, "institutions standing in extensive grounds" (the Northavon case) or "existing town centre" (the Wandsworth case). Thus, the ex parte Woods approach can in fact be operated, as Miss Lieven observed, so as to reduce the potentiality for legal disputes.
50. All the same, I would, speaking for myself, sound a note of caution. The courts must be wary of an approach whereby decision makers can live in the planning world of Humpty Dumpty, making a particular planning policy mean whatever the decision maker decides that it should mean. I make the following observations.

(1) First, it is plain that ex parte Woods does not sanction such an approach. As Brooke LJ makes clear, the court will need to assess, as a preliminary matter, whether the interpretation propounded by the decision maker is one that the words used are in law properly capable of bearing.

(2) Second, and following on from that, if, in any particular planning case, one meaning is, on any viewpoint, highly probable but a counter meaning is advanced on behalf of the decision maker which can at best justify no epithet better than "tenuous", that, I apprehend, is not likely in the ordinary case to avail the decision maker; and in such a context the parties should not be surprised if the courts choose to adopt a robust approach. As stated by Mr George Bartlett QC (sitting as a deputy judge of the High Court) in Virgin Cinema Properties Limited v Secretary of State for the Environment [1998] PLCR 1 at page 8, there may be instances, on a point of interpretation in a relevant planning context, where the ambit of reasonableness is narrow or even nil.

(3) Third, there may be instances where, even if the words of the policy taken on their own prima facie support the interpretation of the decision maker, consideration of the purpose and underlying objective of the policy in question may show that such linguistic interpretation simply will not accurately represent the true policy: see Patter and Harris v Secretary of state for Environment, Transport and the Regions [2000] 79 P&CR 214 as an example of that.

(4) Fourth, decision makers will of course need to bear in mind that the adoption of a particular interpretation of a policy in a development plan in a particular case will make it difficult, at all events in the absence of convincing explanation, for them to adopt a different interpretation in another case without attracting a challenge on the ground of arbitrariness or collateral purpose or the like.

51. On that approach, and applying the principles of ex parte Woods to this case, I ask myself whether the interpretation of policy PS1 adopted by the Secretaries of State, as set out in particular in paragraphs 16 and 50 of the decision letter, was one properly open to them.
52. In my judgment, it was.
53. The first point is that the actual words of this part of the policy, PS1, unquestionably strongly support the Secretaries of State's interpretation. Almost self-evidently the proposals here were for "public service development within the countryside"; and it could also readily be concluded that they were essential for a new scheme or undertaking. Indeed, Mr Upton expressly accepted that, even on a hard edged approach, the position here accorded with the actual wording of policy PS1.
54. But that, as Mr Upton rightly said, is not necessarily the end of the matter. Regard must be had to the underlying purpose and objectives of policy PS1 and to the statements contained in that regard in chapter 10. In that context Mr Upton drew attention to the words of the introduction: for example, he said, they connoted contemplated improvements to existing public services designed to benefit the increasing population of the borough. He drew attention to the reasons and explanations section, saying, amongst other things, that those suggested that the approval of the developments carried out by statutory undertakers was aimed at improving the provision of services for those within the borough. He says that for a development within open countryside, only limited developments are contemplated, essential for the provision of such services, with some modification of approach for already established public service developments. He also says that the section in chapter 10 relating to implementation is to like effect and focuses on the area of and residents of the Vale Royal Borough. But for the present proposed development, he submits, none of these considerations apply. On the contrary, the proposed development is accepted by the Secretaries of State as being for the benefit of the wider community, that is to say the country as a whole, and is indeed sought to be justified as being in the national interest. Thus, local advantage (as the Inspector had put it in the Inspector's report) would simply be incidental. Yet further, Mr Upton makes the point that chapter 10 carries with it no specific plan or policy for natural gas storage sites and related works of this kind. That, he says, is to be contrasted with the position for Aldbrough in Yorkshire, where there is a similar geological site to that in this part of Cheshire. In that case the relevant development plan made specific provision for gas storage facilities; but here there is no such specific provision and the general policy provisions enunciated in chapter 10 cannot, he submits, be utilised to justify a specific development of this particular kind and of this particular scale.
55. I cannot agree with those submissions. Considerations of land use are, amongst other things, in issue here: although it is of course understandable that chapter 10, in places, puts emphasis on the borough itself and on the residents of the borough. But I can see nothing in chapter 10, taken as a whole, which would necessarily confine the ambit of the wide general words of policy PS1 itself (which is drafted indeed as a permissive policy) in the way Mr Upton would suggest. As the Secretaries of State expressly note in paragraph 16 of the decision letter, public services commonly are provided over areas stretching beyond boundaries of individual local authorities. Further, the view there expressed by the Secretaries of State, that there is no explicit exclusion in chapter 10 of public service development making provision for people living outside the Vale Royal Borough, is also justified; as is the view that the supporting text in chapter 10 contemplates the provision of benefits to the wider community. Indeed, as Mr Hicks observed, it may be thought rather odd that a development plan can be taken to permit public developments of local importance but exclude those of national importance.
56. All that being so at all events, in my view, the Secretaries of State were entitled to disagree with the views expressed by the Inspector in paragraph 9.23 of the Inspector's report. Moreover, it is a point of comment that, on this particular aspect of policy PS1, the Vale Royal Borough Council, whose development plan it was, itself agreed with such approach and interpretation.
57. As to the scale of the proposed development, that was pre-eminently, as I see it, a matter for the Secretaries of State's assessment in the interpretative task undertaken by them. As to Mr Upton's point that policy PS1 and the surrounding text makes no specific provision for a development of this particular type (that is, natural gas storage) that seems to me to be a rather two-edged argument, if only because the actual words of policy PS1, as is conceded, are in general terms consistent with such a development, and also because the supporting text plainly has in mind statutory undertakings and a development relating to, for example, gas.
58. Accordingly, I hold that the Secretaries of State were entitled to conclude that policy PS1 applied here and were entitled to conclude that it lent "some support" to the proposed development. In reaching such conclusion, it is also clear they were reading chapter 10 as a whole, and taking policy PS1 in context.
59. I should add for completeness on this point that Miss Lieven, supported by Mr Hicks, suggested as an alternative that, in any event, even if the Secretaries of State were wrong on that, it would have made no difference to the eventual outcome and therefore this claim should still be refused. She points out, first, that the Secretaries of State expressed themselves cautiously in simply saying "some support" was lent by policy PS1; second, that the Secretaries of State expressly concluded that the proposed development in any event conflicted with policy GS6 and thereby, by necessary implication, with the proviso to policy PS1 and "so is not in accordance with the development plan"; and, third, that the Secretaries of State nevertheless then went on, in paragraphs 51 to 56 of the decision letter, to find other material considerations justifying a determination in favour of the grant of planning permission.
60. I would have rejected that particular submission. First, it seems to me to adopt a two stage schematic approach to the operation of section 54A, which Lord Clyde had rather deprecated in the City of Edinburgh case as the only means of approach to be utilised. Second, and perhaps reflecting that, it does not fit easily with Miss Lieven's frequently stressed, and in my view correct, submission made on a number of occasions in her argument that the decision letter must be read as a whole. Third, the very fact that the decision letter twice thought it appropriate to mention that policy PS1, as interpreted by the Secretaries of State, lent "some support" to the proposed development, suggests in itself, in my view, that it was indeed a consideration lending some support to the Secretaries of State ultimate decision. It is the case, of course, that section 54A permits a decision which is entirely contrary to the development plan, and it is also the case that aspects of a development plan in any individual case may support, and aspects may conflict, with a development proposal. But, as Mr Upton tellingly observed, there is potentially a great deal of difference between a decision which has no support from a development plan to one which has at least some support from it. Thus, in my view, there is a real possibility that such consideration would have made a difference to the ultimate decision itself. However, I say no more on that point in view of my conclusion that the Secretaries of State were indeed properly entitled to take that consideration into account as they did.

Second Issue

61. I turn then to the second issue, that of alternatives. Mr Upton accepted, rightly in my view, as a general proposition, that the assessment by the Secretaries of State of material considerations could only be challenged on the grounds of irrationality. However, in the present case, the Secretaries of State having concluded that there was a generalised need for increased gas storage in the country as a whole (see, in particular, paragraphs 18 to 22 of the decision letter), they should, submits Mr Upton, have gone on to consider whether there was a need for such a facility in this particular open countryside location as opposed to other possible facilities.
62. This issue had generated considerable debate and evidence before the Inspector at the inquiry. The Inspector had concluded, adopting in effect the assessor's advice, that salt cavity storage sites had certain advantages over other types of site. The Inspector also concluded, again essentially in agreement with the assessor, that different forms of gas storage were, to a greater or lesser extent, substitutable, and that there was no overriding national need for this development at Byley, either in terms of security of supply or in terms of economic need. Given that conclusion the Inspector did not, it would seem, expressly go on to deal further with the question of alternative sites. I gather from what I was told that at the inquiry, although reference was made to the Aldbrough site in Yorkshire, for which planning permission has been granted but not yet implemented, no specific alternative sites, at all events involving salt cavity storage, were put forward by the objectors.
63. In my view, in considering the grant of planning permission, the Secretaries of State were required to consider alternatives on the basis of the second and third principles enunciated by Simon Brown J in Trusthouse Forte Hotels Ltd v Secretary of State for the Environment [1985] 56 P&CR 293 at page 299.
64. The difficulty for the claimants here, however, is that the Secretaries of State did precisely that in the decision letter, and at considerable length: see, in particular, paragraphs 18 to 23, paragraph 35 and paragraph 52. Thus, this is said:

"18. The Secretaries of State have considered the Inspector's comments and conclusion on need [IR 9.6 to 9.19]. They agree with the Inspector that security of supply is of national importance and it is prudent to add to supply [IR 9.9]. In their opinion, this is an important consideration that carries considerable weight. The Secretaries of State agree with the Inspector that the proposed development would increase storage capacity by about 10% and that this would assist the security of supply [IR 9.9]. In their opinion, this is a benefit of the proposed development that is of national importance. The Secretaries of State accept that, in addition to salt cavity storage, there are other ways to increase the security of supply [IR 9.12]. However, national energy policy does not purport to establish any hierarchy of, or state a preference for, particular methods for adding to security of supply. In the opinion of the Secretaries of State, salt cavity gas storage is a type of storage that will assist with the security of supply and the proposed development is consistent with national energy policy. The Secretaries of State consider that this weighs in favour of the proposed development...

21. The Inspector separately considers the beneficial impact of gas storage on the traded market for gas [IR 9.15]. The Secretaries of State agree with the Inspector's conclusion that the gas market would benefit from having greater storage and that salt cavity storage is good in terms of efficiency of the market [IR 9.19]. In the Secretaries of States' view, the fact that other types of gas storage also have a beneficial impact on the traded market for gas, does not detract from the benefits provided by the proposed development. In their opinion, the proposed development is entitled to have this benefit weighed in its favour in determining the appeal. The Secretaries of State have taken account of the Inspector's comments about the Aldbrough decision [IR 9.18]. The Secretaries of State cannot speculate about the implementation of the Aldbrough, or other, planning permissions. In their opinion, this proposal has to be assessed on the evidence before them.

22. The Secretaries of State have also had regard to the Inspector's conclusion and evidence relating to alternative locations for salt cavity storage [IR 9.19]. The Secretaries of State have given relatively little weight to the consideration of alternative sites given their findings on the effect of the proposed development on the open countryside set out in paragraphs 24 to 36 of this letter. In any event, the Secretaries of State consider alternative locations are limited in that onshore salt cavity storage can only occur where there are significant onshore salt deposits. In their opinion, the evidence indicates that the only comparable alternative location for salt cavity storage is in Yorkshire. The Secretaries of State consider that there is no reason to believe that the impact of such development in Yorkshire would be any less than the impact on the appeal site.

Overall Conclusion on Need

23. Security of supply is of national importance and the available evidence shows that, within the next seven years, there is a significant likelihood of a supply-demand gap. The proposed development provides an opportunity to increase the security of supply and should help meet a supply-demand gap. The proposed development will have a beneficial impact on the traded market for gas. Overall, the Secretaries of State consider that need for the proposed development has been established in the context of national energy policy and, as the proposal is consistent with national energy policy, these considerations will have considerable weight in the determination of the appeal [IR 9.19]"

In the last sentence of paragraph 35 of the decision letter this is said:

"While the Secretaries of State will have regard to general countryside planning policies, they will also have particular regard to the need for the proposed development, in terms of national considerations, in this instance national energy policy, and to physical constraints relating to potential alternative locations for onshore salt cavity storage (see paragraphs 18 to 23 of this letter)."

And in the section of conclusions, this is said at paragraph 52:

"The Secretaries of State consider that alternative locations for the proposed development are limited as onshore salt cavity storage can only take place where appropriate salt deposits exist. On the information available to them, the Secretaries of State do not consider that there is likely to be any alternative site for the proposed development which shows a significant benefit over the proposals before them."

65. Mr Upton's criticism, in summary, however, is that the Secretaries of State have focused solely on the consideration of salt cavity storage sites as an alternative and not on other alternative types of storage or site; and have not had sufficient regard to the view of the Inspector and assessor that other types of storage or supply were available and substitutable for salt cavities.
66. In my judgment, this criticism is misplaced. The Secretaries of State expressly acknowledge that there were other ways of increasing security of supply (see paragraph 18 of the decision letter). But the Secretaries of State were taking the view, for which reasons were given, that salt cavity storage facilities were, in this context, the preferable option and that there was a need for such a development. That was a view which, as decision makers, having regard to the materials before them, they were entitled to hold. That being so, they were entitled to consider alternatives in the context of alternative salt cavity storage sites; that is to say, on a like for like basis. I can see no inconsistency or unreasonableness in that. Moreover, the Secretaries of State had made it clear that they had given consideration to that point, notwithstanding that in their assessment it, in any event, had little weight given their assessment of the effect of this proposed development on the open countryside: see paragraphs 22 and 52 of the decision letter in particular.

Third Issue

67. The next issue is the adverse impact on the countryside, comprising, as Mr Upton put it, construction impacts, in particular during the four years in total the construction process was found to be likely to take; other adverse impacts; and cumulative impacts. On this the Secretaries of State had adopted an ultimately different assessment to the Inspector in the Inspector's report. I add that it is not suggested that the Secretaries of State had been obliged to revert back to the parties on this aspect.
68. These matters are dealt with at length in the decision letter, in particular at paragraphs 24 to 36. In paragraph 27 of the decision letter the Secretaries of State had expressly concluded that the construction activity would have a significant impact on the countryside, but overall, being of time limited duration, the Secretaries of State concluded that that would not "in itself" be contrary to policy GS6.
69. I find it difficult to see how there can be any realistic criticism on public law grounds of this conclusion. Four years is indeed a long time. The Secretaries of State in terms accepted that it was a significant period. But it is time limited. That was a view the Secretaries of State were entitled to reach, just as they were entitled to conclude that such construction activity, time limited as it was, was not "in itself" contrary to policy GS6. The criticism seems particularly arid when it is borne in mind that elsewhere, in paragraph 50 of the decision letter, the Secretaries of State have expressly accepted that the proposed development, taken as a whole, was in conflict with policy GS6.
70. I also reject the assertion that the Secretaries of State had failed to give adequate reasons for rejection of the various adverse impacts. In my view, sufficient reasons are given, in particular in the paragraphs mentioned above; that is, paragraphs 24 to 36 of the decision letter. Indeed, many of the criticisms advanced are, in public law terms, plainly unsustainable, and some, in my view, are really quibbles for present purposes: although I can well see that such considerations would properly have loomed large at the inquiry. It is now said, for instance, that no account was taken of the Inspector's conclusion that the gas processing plant would be a "de facto industrial complex in the open countryside". But in paragraph 32 of the decision letter the Secretaries of State stated that they expressly agreed with that proposition and so had taken it into account. It is said that the Secretaries of State failed sufficiently to consider the airfield as open countryside. But the Secretaries of State expressly gave detailed consideration in the decision letter to the airfield. A criticism is also made of the alleged failure of the Secretaries of State to deal with the solution mining aspects of the proposal. But in paragraph 24 of the decision letter the Secretaries of State indicated their agreement with the Inspector on this.
71. It is, however, then submitted that the Secretaries of State failed to take account of the additional impact that might arise if permitted development rights were exercised. It is said, in particular, that a condition or restriction on the permitted development rights of a kind imposed in the case of the Aldbrough planning permission should have been imposed in this case.
72. It does appear that this point was not expressly addressed in the decision letter by the Secretaries of State. It is said in a witness statement of the solicitor for the Scottish Power companies that in fact no such condition had been propounded on behalf of the objectors in meetings convened to discuss conditions held during the inquiry. However, it may also be said that the Inspector in his report does note that as having been a point raised in the concluding submissions to him.
73. In my view, the clear inference is that the Secretaries of State had not thought such a condition necessary or appropriate: and it is to be noted that the imposition of such a condition would have been, as Mr Upton did not dispute, an exceptional course: Mr Hicks having cited to me in this regard paragraph 85 of Circular number 11/95 entitled "The Use of Conditions in Planning Permissions".
74. It is plain from the whole series of conditions annexed to the decision letter that the Secretaries of State had given consideration generally to the imposition of conditions. I consider it unsurprising in all the circumstances that the Secretaries of State had regarded the exclusion of such a condition with regard to the exercise of planning development rights, as now suggested, as being of insufficient fundamental importance or centrality to warrant express reference in the decision letter.
75. The final criticism on this particular aspect is that the Secretaries of State, in their decision letter, dealt with the adverse effects on the open countryside individually, not cumulatively. But in my view the reasoning and wording of the decision letter and the generalised conclusion in paragraph 36, as well as in paragraphs 50 to 56, shows that the adverse effects had been considered cumulatively as well as individually. The Secretaries of State may have made an overall assessment with which the objectors profoundly disagree, but that does not provide a public law basis for this court to intervene on the bases now advanced.

Fourth Issue

76. I turn next to the issue of risk. It was predictable that many of the objectors would have strong concerns as to the risk involved in the storage of natural gas in these sites; a concern doubtless since increased in the light of explosions at Moss Bluff in Texas on 19th August 2004, a site apparently itself involving natural gas stored in salt cavities, and an explosion at Ghislenghein in Belgium on 30th July 2004, involving a ruptured pipe line carrying natural gas. These incidents, I stress, postdate the decision letter. They are referred to in Mr Oakley's witness statement of 30th November 2004. Clearly, however, the decision letter cannot be impeached by reference to matters postdating it.
77. There was much evidence at the inquiry on the issue of risk and safety. The question was considered at great length by the Inspector and his assessor. The Inspector, agreeing with the conclusion at paragraph 8.217 of the assessor's report, concluded (see paragraphs 9.47 to 9.63 of his report) that there was no reason to refuse permission on safety grounds. He went on to say in paragraph 9.63 of the report that he found nothing to substantiate the fears of the objectors and considered that the perception of fear by members of the public should be given little weight.
78. The Secretaries of State dealt with that issue in the decision letter at paragraph 37 in these terms:

"The Secretaries of State have considered the Inspector's comments and conclusions on health and safety issues [IR 9.47 to 9.63]. They acknowledge that these matters are of considerable concern to local residents and many objectors. The Secretaries of State accept that in determining this appeal, public fear and concern about health and safety issues is a material consideration. They have also taken into account the general guidance set out in PPG23 that the planning system should not be operated so as to duplicate controls that are the statutory responsibility of other bodies. The Secretaries of State are aware that, in addition to planning permission, the proposed development requires other consents to operate. For the reasons set out at IR 9.51 to 9.62, the Secretaries of State agree with the Inspector's conclusion that there is no safety reason to refuse the grant of planning permission, subject to the imposition of appropriate planning conditions, and providing all relevant safety requirements are satisfied [IR 9.63]. (See also paragraph 48 of this letter in relation to the issue of the potential for vulnerability to earthquakes [IR 9.56].)."

79. In the light of that expressed conclusion by the Secretaries of State, Mr Upton does not challenge the Secretaries of State's conclusions with regard to risk at such: in the sense that, whilst the claimants most emphatically do not agree with those conclusions, they have to accept that it was an assessment open to the Secretaries of State. His point here was that there has been an inadequate consideration by Secretaries of State of the perception of risk: and all counsel before me agreed that perception of risk was a relevant planning consideration.
80. In my view, however, quite simply, the point is disposed of by the Secretaries of State by their statements in paragraph 37 of the decision letter, which referentially adopt the reasons and conclusions of the Inspector on this point and as is confirmed by paragraph 55 of the decision letter. That, in my view, adequately covers the issue of perception of risk.
81. Mr Upton accepted that some of the concerns as to risk can be addressed under other relevant regulatory regimes: for example, The Control of Major Accident Hazards Regulations 1999 and the Planning (Hazardous Substances) Act 1990. He nevertheless says, by reference to paragraph C3 of Annex C to PPG1, that even where consent is needed under other legislation, the planning system may have an important part to play in deciding whether a development is appropriate for the particular location; a particularly apposite point, he says, where what he calls a "major hazardous installation" is to be located in a rural area. All that may indeed be so. But those were points before the Inspector and were points before the Secretaries of State. The objectors may have concerns as to which particular public body, if any, will accept the ultimate responsibility for safety matters for this proposed development; but for these purposes it is the Secretaries of State who have the responsibility for making the decision at this stage. They were entitled, for that purpose, to have regard to the existence of other regulatory regimes. In reaching their planning conclusion, the Secretaries of State were, in my judgment, in short, entitled to assess the matter as they did in paragraph 37 of the decision letter.
82. In my view, that approach also disposes of another point made by Mr Upton that the Secretaries of State should have imposed a condition for obtaining more geological information before the project could proceed, as contemplated by the Inspector in paragraph 9.55 of his report. But in my judgment the Secretaries of State could reasonably have taken it that the applicants would do that, given the prospective requirements of the safety regulations. In any event, subsequent evidence indicates that permission for appropriate exploratory works has in fact since been obtained and implemented: so that point could not, in itself, in any event justify the grant of relief under section 288.
83. The final stage of Mr Upton's argument on the Secretary of State's assessment is to refer to paragraph 56 of the decision letter, which I have already cited, and to say that the Secretaries of State erred in balancing solely "countryside issues" against the national interest relating to energy needs. He further says that the Secretaries of State have, in paragraph 55 of the decision letter, summarily dismissed all considerations not in themselves individually capable of being reasons for refusal, have not addressed the position of persons such as Mr Bennion, with his special position as farmer of Stublach Dairy Farm, and have not considered all the adverse considerations cumulatively.
84. I intend no respect to that particular argument if I deal with it shortly. In my view, it completely ignores the fact that the decision letter must be read as a whole. Paragraphs 55 and 56 are summary paragraphs of conclusion. The whole body of what has gone before in the decision letter must also be taken into account. Those show that various adverse points were assessed (for example, by reference to paragraph 55, in paragraphs 37 to 49 of the decision letter) both individually and, as the conclusions make clear, cumulatively. As to Mr Bennion, his special position is expressly addressed in paragraph 40 of the decision letter, where the Secretaries of State adopt the Inspector's position on this and accept that, whilst Mr Bennion's position weighs against the proposed development, it would not itself lead to a refusal of planning permission. As to the position of Mr Oakley (whose position has been expressly addressed in the report), that is sufficiently to be taken as included in the objections variously recorded in the decision letter. In my view, the Secretaries of State were not required to spell out separate conclusions by reference to Mr Oakley in the decision letter; nor were they with regard to the fourth claimant, Mrs Worthington. Indeed, the points that they raise, although of course in some ways personal to them, are, if I may put it this way, generic points and as such fully covered by the decision letter and, referentially, by the report which addressed their individual concerns.

Fifth Issue

85. The next issue is the asserted failure of the Secretaries of State to give sufficient, clear and intelligible reasons. Mr Upton accepted that this argument is parasitic on the arguments which I have already rehearsed. The relevant approach is very helpfully summarised in the speech of Lord Brown of Eaton-under-Haywood in South Bucks District Council v Porter (No 2) [2004] 1 WLR 2000 1953, [2004] UKHL 33 at paragraphs 35 and 36. In the light of the conclusions I have already expressed, and adopting the overall approach advanced by Lord Brown, it is clear that this head of challenge must fail.

Sixth Issue

86. I turn then to the final issue raised, which is that of human rights. Reliance is placed on Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol.
87. The rights concerned are qualified rights. It follows, as Mr Upton puts it, that there is a need to strike a balance between the interests of the individuals affected and those of the state, the public interest. The Inspector had addressed this point in his report at paragraph 9.82. He said this:

"CAP says that the proposal may have an adverse effect on the human rights of people nearby if the correct balance is not struck between the public interest and the interests of the individual. It asserts that the Secretaries of State could only grant planning permission for this case if there was some overwhelming public interest to be achieved. CAP provides reference to a number of human rights cases. I consider that the analysis that I have carried out has the balance of such interests at its heart, and that the eventual decision would have the same considerations in mind. It so happens that my analysis brings the balance down in favour of the objectors to the scheme; it may be that the Secretaries of State go the other way. In either case, I do not consider that the decision would amount to a suppression of human rights."

88. In the decision letter the Secretaries of State said this:

"In relation to human rights, the Secretaries of State have considered the submissions made by interested parties and the Inspector's comments and conclusions on whether the proposed development would result in a breach of the European Convention on Human Rights [IR 9.81 to 9.82]. The Secretaries of State agree with the Inspector's conclusions in IR 9.81 that there has been no breach of Article 6 and 9.82 that the decision on this appeal, whether to grant or refuse planning permission, would not amount to a suppression of human rights. In the Secretaries of States' opinion, the grant of planning permission for the proposed development would not result in the breach of the European Convention on Human Rights."

89. That approach, as it happens, in effect accords with the position since enunciated by the Court of Appeal in the case of Lough v First Secretary of State [2004] 1 WLR 2557, [2004] EWCA Civ 905. Lough was itself, as it happens, a case where planning permission had been granted in circumstances involving departure from a development plan. It was pointed out in that case that, in the planning context, the role of Article 8 and of Article 1 of the First Protocol has to be set in the context of competing rights, including the rights of land owners and of the community as a whole. In the course of his judgment, Pill LJ reviewed a number of relevant authorities, including, amongst others, Hatton v UK [2003] 37 EHRR 611. Pill LJ also noted that the phrase "a wide margin of appreciation" was used in relation to planning policies. Pill LJ went on to express himself in this way at paragraphs 43 and following of his judgment:

"43. It emerges from the authorities:

(a) Article 8 is concerned to prevent intrusions into a person's private life and home and, in particular, arbitrary intrusions and that is the background against which alleged breaches are to be considered.

(b) Respect for the home has an environmental dimension in that the law must offer protection to the environment of the home.

(c) Not every loss of amenity involves a breach of Article 8(1). The degree of seriousness required to trigger lack of respect for the home will depend on the circumstances but it must be substantial.

(d) The contents of Article 8(2) throw light on the extent of the right in Article 8(1) but infringement of Article 8(1) does not necessarily arise upon a loss of amenity and the reasonableness and appropriateness of measures taken by the public authority are relevant in considering whether the respect required by Article 8(1) has been accorded.

(e) It is also open to the public authority to justify an interference in accordance with Article 8(2) but the principles to be applied are broadly similar in the context of the two parts of the article.

(f) When balances are struck, the competing interests of the individual, other individuals, and the community as a whole must be considered.

(g) The public authority concerned is granted a certain margin of appreciation in determining the steps to be taken to ensure compliance with Article 8.

(h) The margin of appreciation may be wide when the implementation of planning policies is to be considered.

44. I add that the present alleged breach of Article 8 is based on a departure from the development plan but, following the reasoning in Hatton, where a Government scheme regulating movement of aircraft was under consideration, the Court would adopt the same approach whether it is in a departure from the development plan or an application of the development plan itself which is alleged to be in breach of Article 8. Of course, the contents of the development plan, and the procedure by which it is adopted, should be Convention compliant.

Conclusions

45. In the light of the authorities, and the inspector's findings of fact, Article 8 made no significant impact upon the task to be performed by the Inspector. Article 8 does not achieve the radical change in planning law inherent, although not acknowledged as such by the Appellants, in the submission summarised at paragraph 22 of this judgment that consideration should have been given to the possibility that the benefits achieved by the grant of permission could have been achieved in some other way or on some other site. Article 8, with its reference to the protection of the rights and freedoms of others, and Article 1 of the First Protocol with its reference to a person's entitlement to the peaceful enjoyment of his possessions, acknowledge the right of a landowner to make beneficial use of his land subject, amongst other things, to appropriate planning control. As Sullivan J stated in Malster, at paragraph 89, in relation to Article 1, the prospective developer 'is equally entitled to the enjoyment of its possessions.'

46. I am far from persuaded that, in circumstances such as the present, domestic law in general, and the planning process followed in this case in particular, fail to have regard to the Article 8 rights of people in the vicinity of the appeal site, including the Appellants. Departure from a development plan, even if it is from a provision entitled 'Protection of Amenity' does not of itself involve a breach of Article 8. In his approach to his task, the Inspector struck a balance which was entirely in accord with the requirements of Article 8 and the jurisprudence under it. There has been nothing arbitrary about the procedure followed and the striking of the balance provided that reasonable and appropriate measures were taken to secure the Appellants' rights in accordance with Article 8(1). The approach the Court should adopt was stated by Lord Bingham of Cornhill in Daly at paragraph 23: 'domestic courts must themselves form a judgment as to whether a Convention right has been breached (conducting such inquiry as is necessary to form that judgment)'.

47. I find no breach of Article 8(1). Resort to Article 8(2) is not in my judgment necessary to uphold the decision, for the reasons I have given, but, if I am wrong about that, it provides, on the Inspector's findings, justification for the permitted development. I refer to the findings at paragraph 56 of the inspector's decision together with an acknowledgement of the right of a landowner to make use of his land, as a factor to be considered...

49. The concept of proportionality is inherent in the approach to decision making in planning law. The procedure stated by Dyson LJ in Samaroo, as stated, is not wholly appropriate to decision making in the present context in that it does not take account of the right, recognised in the Convention, of a landowner to make use of his land, a right which is, however, to be weighed against the rights of others affected by the use of land and of the community in general. The first stage of the procedure stated by Dyson LJ does not require, nor was it intended to require, that, before any development of land is permitted, it must be established that the objectives of the development cannot be achieved in some other way or on some other site. The effect of the proposal on adjoining owners and occupants must however be considered in the context of Article 8, and a balancing of interests is necessary. The question whether the permission has "an excessive or disproportionate effect on the interests of affected persons" (Dyson LJ at paragraph 20) is, in the present context, no different from the question posed by the Inspector, a question which has routinely been posed by decision makers both before and after the enactment of the 1998 Act. Dyson LJ stated, at paragraph 18, that 'it is important to emphasise that the striking of a fair balance lies at the heart of proportionality'.

50. I am entirely unpersuaded that the absence of the word 'proportionality' in the decision letter renders the decision unsatisfactory or liable to be quashed. I acknowledge that the word proportionality is present in the post-Samaroo decisions and the judgments of Sullivan J in Egan and Elias J in Gosbee but I do not read the conclusion reached by either judge as depending on the presence of that word or on the existence of a new concept or approach in planning law. The need to strike a balance is central to the conclusion in each case. There may be cases where the two-stage approach to decision making necessary in other fields is also appropriate to a decision as to land use, and the concept of proportionality undoubtedly is, and always has been, a useful tool in striking a balance, but the decision in Samaroo does not have the effect of imposing on planning procedures the straight-jacket advocated by Mr Clayton. There was no flaw in the approach of the Inspector in the present case."

90. In my view, just such a balancing exercise has been undertaken by the Secretaries of State in the decision letter. The relevant considerations have been assessed and weighed and a conclusion reached accordingly, in a way and by a procedure which is Article 8 compliant. The concerns and rights of the three individual claimants and other individuals here (which had been detailed by the Inspector in his report) are subsumed in, and covered by, the reasons given by the Secretaries of State in the decision letter. It is true that the Secretaries of State have not expressly used the modish word "proportionality", but (as Pill LJ makes clear in Lough) that does not, of itself, render a decision of this kind liable to be quashed. As Pill LJ also said, the need to strike a fair balance is central to the conclusion in a case of this kind. In my judgment, considering the circumstances of this case, a fair balance has been struck by the Secretaries of State and there has been no unjustified infringement of the individual claimants' human rights.

Conclusion

91. At the end of his closing written submissions to the Inspector, Mr Upton had submitted to the inquiry that this was a project prepared by men in suits behind desks who had not properly assessed the risks and "disbenefits" and who had not been able to justify this hazardous development in the open countryside. At the end of his opening written submissions to me, he submitted that, at its heart, this case is about the unexpected introduction of a major accident hazard in the middle of a rural community. I revert, however, to the starting point here, that the decision in question is one that has been entrusted by Act of Parliament to the Secretaries of State. The Secretaries of State have made their assessment as a matter of planning judgment. No sufficient public law grounds entitling this court to interfere with that judgment, whether taking the various claims advanced individually or cumulatively, are made out; nor has any unjustified infringement of rights under Article 8 or the First Protocol been established.
92. That being my conclusion, it follows that I am bound also to conclude that this claim must be dismissed.
93. MISS LIEVEN: In those circumstances, on behalf of the first and second defendants, I ask that the claimants should pay their costs, such costs to be subject to detailed assessment if not agreed.
94. MR JUSTICE DAVIS: You are asking for an order for costs, are you?
95. MISS LIEVEN: Yes. I understand that this is not a case where the claimants are publicly funded, they are privately funded, and so in my submission -- I have not discussed with my learned friend whether he is resisting such an order, but it would be standard.
96. MR JUSTICE DAVIS: That is what you are asking for. Mr Cameron, what is your position on costs?
97. MR CAMERON: My Lord, although it might be possible to put arguments forward indicating that there was a separate interest that needed protecting, it is the view of the third and fourth defendants that it would be inappropriate to make an application for costs, and therefore I do not do so.
98. MR JUSTICE DAVIS: I am very pleased to hear that.
99. Mr Upton, what do you say about costs?
100. MR UPTON: My Lord, can I just briefly check on the status of the claimants.
101. MR JUSTICE DAVIS: Please take instructions, yes.
102. MR UPTON: My Lord, thank you for the time to do that. Firstly, on the matter of the principle of costs, I do not think it would be possible for me to resist that for the Secretary of State, but in terms of who the costs might be made against, I would like to submit that it would be appropriate to make it against the first claimant, the parish council, because the way this case has actually been brought, they have agreed to indemnify the three individual claimants.
103. MR JUSTICE DAVIS: Well, in the ordinary way then the order for costs would be against all four claimants, with the three individuals having the right of indemnity consequent --
104. MR UPTON: That certainly would be one approach to take. The caution is, I suppose, it would be inappropriate for the three individual claimants to be pursued individually when there is one claimant who is prepared to stand --
105. MR JUSTICE DAVIS: I am afraid, Mr Upton, if Miss Lieven's instructions are to ask for costs, then I think the costs order must be made against all four claimants, leaving the individuals to claim on their indemnity as appropriate.
106. MR UPTON: My Lord, that is certainly an effective way of doing it.
107. MR JUSTICE DAVIS: Is there anything else you can say about costs?
108. MR UPTON: Not in these circumstances, my Lord.
109. MR JUSTICE DAVIS: Miss Lieven, I will make an order for costs in your clients' favour. May I suggest your clients carefully consider whether or not they wish to implement such an order in their favour. I certainly expect consideration to be given whether, in the particular circumstances, it would be desirable, but that is a matter for your clients' decision.
110. MISS LIEVEN: I will certainly pass those views on and make sure they are considered by my client.
111. MR JUSTICE DAVIS: Thank you.
112. MR UPTON: My Lord, there is one further potential matter, which would be asking for permission to appeal. In these particular circumstances I do not feel in a position to make such a submission today. In the normal way, obviously, there would be, under the rules, 14 days in which it to be considered, but given your careful and detailed judgment I wonder if it might be appropriate to ask for an extension of time --
113. MR JUSTICE DAVIS: It is customary to deal with applications for permission to appeal at the time a judgment is delivered. You know this case backwards, Mr Upton, you have had to listen to me delivering my judgment. What arguable points do you say can be identified? I appreciate you have been writing hard and perhaps have not had that much time to think while you have been writing, but --
114. MR UPTON: It is just really, my Lord, in these circumstances where there are obviously three individual claimants but also the parish council itself, I do not have instructions from them at the moment whether they wish to pursue it further.
115. MR JUSTICE DAVIS: Well, that is a different point together. No doubt your instructions extend to at least applying for permission to appeal. Whether or not you actually then seek to appeal --
116. MR UPTON: I appreciate that obviously it does not shut the door on perhaps taking it further even if you were to consider that it would not be possible to appeal the decision.
117. MR JUSTICE DAVIS: You would like some time to reflect on the position?
118. MR UPTON: Yes, my Lord. It is not something that people wish to rush into, and it is really in those circumstances.
119. MR JUSTICE DAVIS: It is one thing asking for permission to appeal, it is quite another actually appealing. There is a difference.
120. Miss Lieven, can you help on this. Ordinarily, a judge ought to deal with a permission to appeal application at the time judgment is delivered or handed down.
121. MISS LIEVEN: Absolutely, my Lord.
122. MR JUSTICE DAVIS: Is there provision in the rules for me to defer -- unless I defer the operation of my judgment, I suppose.
123. MISS LIEVEN: My Lord, I have never come across quite this situation, but it is quite normal for an extension of time to be given for the production of a transcript, and I do not see any immediate reason why your Lordship should not defer the making of the order, and therefore the time --
124. MR JUSTICE DAVIS: I certainly have deferred applications to the Court of Appeal for permission to appeal, but I am just not so sure that I can defer the application to myself.
125. MISS LIEVEN: My Lord, I have never come across it, and I have not brought the White Book.
126. MR JUSTICE DAVIS: I think I have come across it. Mr Cameron, can you assist on this? I have a feeling there is some rule on this or practice direction or something?
127. MR CAMERON: As far as I have, it is CPR part 52.3.
128. MR JUSTICE DAVIS: Page?
129. MR CAMERON: I am afraid I am in the Green Book.
130. MR UPTON: 1430.
131. MR CAMERON: That provides that an application for permission to appeal may be made --
132. MR JUSTICE DAVIS: That is right, "at the hearing at which the decision", that is what I had in mind. I can always, I suppose, use the overriding objective -- If you do then want to appeal we may have to convene a further hearing and Miss Lieven and Mr Cameron may have to attend, and it could become a little complex.
133. MR UPTON: My Lord, I appreciate that, I was not wanting to rush into a stage which my particular clients may not wish to engage, given the importance of the matter.
134. MISS LIEVEN: Can I make just clear on behalf of the Secretary of State that, in the particular circumstances of this case, we would have no objection, if your Lordship was minded to do this, for Mr Upton to make a written application to your Lordship for leave to appeal and for us to deal with it in writing.
135. MR JUSTICE DAVIS: So I should depart from the rule and what is said at 52.3.4 in the White Book?
136. MISS LIEVEN: I am certainly not inviting your Lordship to do that, I am just indicating we would not have any objection if your Lordship wished to do that.
137. MR JUSTICE DAVIS: Mr Cameron, what is your position?
138. MR CAMERON: My Lord, my position is that the rule should be adhered to. The application should either be made now or an application can be made to the Court of Appeal. It is not as though these claimants are shut out from appealing if it is not deferred, and in my submission the proper approach to take is to perhaps give the claimants extended time in which they can make their application to the Court of Appeal, that is extending the 14 days, which no doubt would run from the receipt of the transcript --
139. MR JUSTICE DAVIS: If they make an application to me now, I might grant them permission to appeal, in which case they would not need to go to the Court of Appeal for permission. You want me to deal with the application for permission now?
140. MR CAMERON: Yes, please.
141. MR JUSTICE DAVIS: Mr Upton, I think you better make your application now in all the circumstances.
142. MR UPTON: I much prefer to take the very clear steer that I should do.
143. My Lord, as you will be aware, obviously the statutory challenge itself was divided into essentially three headings, and I would ask for leave to appeal on all of them. Of course, the test is whether they have a real prospect of success or whether there is some other compelling reason. Regarding the matter of the interpretation of the development plan, I would submit that that is not a matter that is clear beyond doubt, there is substantial submissions, as you have heard, that can be made to suggest that this development plan should be interpreted more strictly, if I can put it in that way, and, as you have indicated, were that to be the case and PS1 could not be prayed in aid, then this is a case where it would have had an effect on the outcome, so therefore on that --
144. MR JUSTICE DAVIS: I would have some sympathy with that if it were not for the fact that, as really bound to by authority, I have adopted the ex parte Woods approach. If this was a hard edged point of interpretation, I could see where you are coming from, but the question of whether the decision maker can reasonably make such interpretation is a rather lower level, is it not?
145. MR UPTON: My Lord, yes. In that sense there are two aspects to this, one is the application of ex parte Woods and the cases that have followed that to this particular case, the second is the way that one can interpret a policy as to whether it can be split up into the approach that obviously you considered was appropriate or whether it is, as actually strongly arguable, that it has to be seen as one policy and cannot be divided in the way that was suggested.
146. MR JUSTICE DAVIS: It is common ground that chapter 10, including PS1, had to be read as a whole, it is just the question of whether an approach can reasonably be taken -- some people might say that the obvious approach is that the first part of PS1 sets out one policy and the second part then sets out what you may call a proviso policy.
147. MR UPTON: As I understood the way that it had been accepted it could be interpreted was that it was possible to approach it in that two stage process rather than overall, and my argument would be that interpretations of policy where, in this instance, there are a series of provisos, they all must apply, and that would be the argument that we would wish to be pursued.
148. MR JUSTICE DAVIS: Right.
149. MR UPTON: The other grounds which I would obviously wish to pursue regarding the relevant considerations. As you indeed did indicate, that is a slightly lesser test regarding the interpretation of the decision letter, and really it is a question of saying whether or not it is arguable that the interpretation that this court has put upon it is open to challenge. I would submit that it is certainly arguable that the letter should be given a less generous interpretation, I can put it no higher than that at the moment in broad terms. In terms obviously of the reasons, that would be essentially parasitic and I accept that in a sense cannot be seen as a separate ground for which to ask for permission, but regarding the human rights point I do submit that there is still a serious issue that could potentially remain unaddressed, which is regarding the way one deals with individual claimants rather than the generic points that people may make, and when a decision letter is, as in this case, silent when it comes to conclusions about what account is taken of those individuals and their particular burden and whether or not that burden is disproportionate or not, that is a matter that should have been addressed and one cannot reach a conclusion in this case that it has been properly addressed --
150. MR JUSTICE DAVIS: Notwithstanding the express paragraph in the decision letter addressing the point?
151. MR UPTON: It is the way that it is addressed, by saying that it is an adverse effect and there is, in my submission, no account then taken of whether that is an additional factor given those individuals' position, rather than just a generic factor in the planning balance. This really goes to the heart of whether or not human rights does raise an additional factor in the planning equation where particular individuals can point to their particular adverse effects. You can imagine, when it is just a housing estate, then there is no particular distinction between the generic effect and the individual, it is the same consideration. Here we are dealing with a much, much larger scheme. There are particular individuals who are affected way and above the general public, and the question then is do those people's rights and do their particular interests raise the question whether the balance that is struck should give particular regard to them, or does one just deal with them in the generic sense, and I would submit at it is just all a matter of balance overall rather than actually looking at the individuals as individuals. My Lord, that is, in my submission, a matter that Lough certainly leaves open, and this is the type of case where it should have been addressed, and on that ground I would ask for leave to appeal because of course it is still a discrete point.
152. MR JUSTICE DAVIS: Miss Lieven?
153. MISS LIEVEN: My Lord, I do oppose leave to appeal on this case on both grounds, no reasonable prospect of success and no wider interest. My Lord, I have broken it down in this way. In terms of the first ground, the policy, I appreciate your Lordship's unease about ex parte Woods. As I submitted to your Lordship at length, it is an authority which has been --
154. MR JUSTICE DAVIS: I do not think "unease" is the necessarily the right way of approaching it, although it is obviously very specific to the planning context, it is just that ex parte Woods should not be flogged to death in every case, but the principle is clear and there is a clear reason for the principle, and it is also, I would have thought, binding to Court of Appeal level as well.
155. MISS LIEVEN: Indeed. My Lord, I am sorry, I was using a shorthand with "unease". The constraints upon ex parte Woods are dealt with in some of the other cases your Lordship has referred to, so in my submission there is no reasonable prospect on that ground. So far as the interpretation of PS1 on the facts of the particular case is concerned, once ex parte Woods is accepted, there is no reasonable prospect the Court of Appeal is going to say that my client's interpretation was irrational for the reasons your Lordship has given.
156. So far as the second ground of potential appeal is concerned, relevant considerations, that depends entirely on the particular case, and your Lordship has set out in his judgment why my client took those matters into account to a sufficient degree in the decision letter.
157. So far as human rights is concerned, my Lord, in my submission all the points raised before your Lordship were decided in Lough, and Lough deals with the matter. I should perhaps say in relation to the last point made by my learned friend, Lough was a case that concerned very specific impacts on individuals. There was a block of flats to be built less than 20 metres from their bedroom windows, so we were not talking about generic effects on the entire group of population, and in my submission, on the facts, having been in Lough, the actual impact on the individuals was much more direct --
158. MR JUSTICE DAVIS: In this case we are not simply talking about generic effects because the Inspector addressed the individuals' complaints.
159. MISS LIEVEN: Absolutely, my Lord.
160. MR JUSTICE DAVIS: In paragraph 37 the Secretary of State went down the same road, so the individuals were subsumed into the consideration of human rights.
161. MISS LIEVEN: Absolutely, my Lord, and there is no reasonable prospect.
162. MR JUSTICE DAVIS: Certainly Lough is significant authority in this field, is it not?
163. MISS LIEVEN: Yes.
164. MR JUSTICE DAVIS: Of course, the objectors here could not have known about it at the time because it only came up earlier this year.
165. MISS LIEVEN: Your Lordship may also wish to remember that, in terms of a reasonable prospect of another part of the Court of Appeal disagreeing with Lough, Lough itself followed a number of first instance decisions, so it is not been an area of legal controversy.
166. MR JUSTICE DAVIS: Yes, it is a very clear statement of what many people have always thought in this particular context, very lucidly put by Pill LJ.
167. MISS LIEVEN: So I would submit no reasonable prospect on that ground either.
168. MR JUSTICE DAVIS: Mr Cameron, what is your position?
169. MR CAMERON: I also oppose the application. I do not repeat what Miss Lieven has said, but I rely upon it and adopt it. The only point that I can add is on the third element, the human rights point. Mr Upton says, in effect, this case is different because there is a particular way in which individuals are affected above and beyond that of the general public. That, my Lord, is true in almost every planning case because some people live closer to the proposed development, some people live further away, and that does not make this case different.
170. MR JUSTICE DAVIS: Mr Upton, is there anything you wish to add?
171. MR UPTON: My Lord, only two points. Obviously, on the first point, this would be a matter where ex parte Woods and the way it applies could be considered in the round. One really comes back to this point about people seem to rely upon it as a general statement of (inaudible) policy, whereas in this context of development plan there is clearly a much finer line that needs to be drawn. Really, my Lord, on the last point about the human rights, the question that still remains essentially unaddressed is this point about whether or not it was a disproportionate burden. The absence of the phrase is clearly not that significant, but one has to say was the test actually properly considered rather than just a matter of balance, one actually has to look at the point about proportionality specifically, but I cannot take it further than that at this stage.
172. MR JUSTICE DAVIS: On the view I take, the relevant legal principles are settled and I am afraid I cannot see any realistic arguable grounds of appeal on the points now raised by reference to the facts and circumstances of this particular case. I also do not take the view that there is any other compelling reason for there to be permission to appeal, so I refuse permission to appeal.
173. MR UPTON: Just one potential matter is regarding the reconsideration, if one did want to take it further.
174. MR JUSTICE DAVIS: You want an extension of time? How long would you like on that if you do want to take it to the Court of Appeal?
175. MR UPTON: I was going to link it to the availability of the official transcript.
176. MR JUSTICE DAVIS: I understand, obviously it is quite a mouthful of a judgment for the transcriber to do, I am afraid, but I am told that they may be turn it round within five days. Then of course I will have to approve the text. But if we assume that you may be able to get a revised transcript within a fortnight. Would 28 days suffice for your purpose?
177. MR UPTON: My Lord, I would certainly ask for slightly longer than the normal 14 days because of the intervention of Christmas and New Year.
178. MR JUSTICE DAVIS: We have that too to consider.
179. MR UPTON: I would have thought 28 days after the receipt of the authorised transcript.
180. MR JUSTICE DAVIS: I would rather give you a fixed time limit from now rather than against a contingency. You want six weeks from today?
181. MR UPTON: It if I could, my Lord. Miss Lieven, what do you say? There are commercial considerations here, so we do not want this, as it were, in the air for too long.
182. MISS LIEVEN: My Lord I have no difficulty with that.
183. MR JUSTICE DAVIS: Mr Cameron, what do you say about this?
184. MR CAMERON: Do you mind if I take instructions on those commercial considerations, it depends in effect when we would otherwise hope to start.
185. MR JUSTICE DAVIS: Your clients obviously want certainty, as indeed I suppose everyone does in one sense.
186. MR CAMERON: My Lord, my instructions are that this matter has to go to the board of the public limited company for decision and that the board papers have to be prepared by 19th January, and therefore, from a commercial point of view of certainty, we ask that the time not be extended beyond that date so that the company knows what it can or cannot do, but I do not think I can push is any further than that. The only thing I would add is, on practical terms, it would give a reasonable period after Christmas for Mr Upton and his clients to consider it if 19th January was the deadline.
187. MR JUSTICE DAVIS: Mr Upton, you and your solicitors do of course have a note of what I have said. In the circumstance I take the view that I will extend time to a period of four weeks from today.
188. MR UPTON: Just to confirm, it is 6th January, my Lord. 13th January, I think.
189. MR JUSTICE DAVIS: It is four weeks from today anyway.
190. MR UPTON: I am grateful, my Lord.
191. MR JUSTICE DAVIS: Thank you all very much indeed.