QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| PERSIMMON HOMES (NORTH WEST) LIMITED AND OTHERS
|- and -
|THE FIRST SECRETARY OF STATE
WEST LANCASHIRE DISTRICT COUNCIL
Hereward Philpot (instructed by The Treasury Solicitor) for the Defendants
Hearing date 16 October 2006
Crown Copyright ©
Mr Justice Bean:
(a) the management and release of housing land in the area;
(b) the regeneration of Skelmersdale;
(c) the use of the land and the character of its surroundings.
'… secure the development of previously developed land and buildings in urban areas as a first priority;
allow for the release of land for housing in phases over the period of the plan, the timing of release to take account of the need for co-ordinated vision of the necessary infrastructure and the overall availability of land for housing identified in the housing provision studies; and
take account of the potential housing land provision and policy framework in place in adjoining local authority areas to ensure a sub-regionally consistent approach that does not undermine urban renaissance in other districts'
'…the requirement for new housing allocations/approvals should consider the annual rate of provision within the particular phase of the Plan period. Districts should aim to meet the annual housing provision on a yearly basis as closely as possible… Most Districts are in a situation of over supply of planning permissions far exceeding the annual requirement. This is likely to be the case in most areas for a number of years. A District will move to a situation of undersupply, requiring the granting of further planning permissions, when the expected annual of number of completions that is estimated will arise from existing planning permissions is below the annual requirements set out in Policy 12.
The ability of current housing approvals and other planned housing land shown in a Local Plan/Local Development Framework to satisfy the annual provision figures will indicate whether additional sites should or should not be approved at that point in time…..
However, where the annual housing provision for a particular year or phase is exceeded, possibly because of higher than expected windfall developments, or sooner than anticipated implementation of housing approvals, a consequential adjustment will need to be made to the annual provision to be met in subsequent years…..'
'In Preston, there is only a limited need for green field development beyond existing planning permissions. A small amount may be required in West Lancashire District at Skelmersdale because of the very limited brown field capacity in the former new town. Policy 12 requires the provision of 3,390 dwellings over the Plan period in West Lancashire district. Of this total, at least 850 should be located at Skelmersdale in order to assist its regeneration.'
'The appellants [argue] that the allocation of the Whalleys site is unlikely given its green field status, and that it should not be assumed the 350 dwellings should necessary be constructed at that location…. Even if the Whalleys land is allocated, the 350 dwellings are likely to be built significantly later in the structure plan period than the council suggests. In contrast, if the appeal is successful the 56 dwellings would be built in two years – 2006/7 and 2007/8.'
'the council argues that even if this allocation [of 350] is removed from the trajectory, there would still be a considerable over-supply during most of the plan period – up to a cumulative excess of 722 dwellings in 2009/10. On this assumption, at the end of the plan period there would however have been an undersupply of 196 dwellings.'
'22. I am, of course, unable to make any predictions or observations about the matters which were considered at the local plan inquiry. I have to consider this appeal on the basis of the development plan and other material considerations as they currently exist. I have already indicated however that in view of the objections to the identification of the Whalleys land, I am unable to regard this as a firm allocation. I also have some sympathy with the appellants' view that even if it is allocated, the requirements of policy DE2 are such that it could be some time before the development actually commences. On this basis the over-supply predicted in the housing trajectory would not be as great as anticipated. However, this does not affect the existing excess of supply over the structure plan target – the target being a figure derived directly from the statutory plan. Indeed apart from the Whalleys site (which I acknowledge is specific to Skelmersdale), I have no reason to question the trajectories provided by the council.
23. Even without the 350 dwellings referred to in policy DE1, there is likely to be an excess except for the final two years of the structure plan period. For a substantial number of the projected years the excess amounts to several hundred dwellings – a disparity which can only be aggravated by the release of additional land. I consider in relation to this issue that, whatever may happen in relation to the Whalleys site, the existing over-supply is a sufficient basis to conclude that the proposed development would be incompatible with the proper management and release of housing land in the area. As such, I further conclude the proposal would be in conflict with structure plan policy 12, and with the purposes of RSS policies UR7 and UR8. I note in this context that the structure plan is a very recent expression of policy, and paragraph 6.3.10 of the Explanatory Memorandum records both the importance of the annualised rates, and that the provisions should be regarded as maximum requirements.'
'36. This case falls to be considered against a large range of plans and policies, set against a background of significant change locally and nationally. I have concluded in respect of the matters that I have identified that, notwithstanding the council's preference, the likely future of the land is as an extension of the new housing development. I have also concluded the proposed development accords with current development plan policy in relation to the regeneration of Skelmersdale. However, as far as the first part of the issue is concerned, I believe the scheme would further aggravate the over-supply of housing land and that to allow the appeal would undermine the proper management of the land supply in the area.
37. The management of housing land supply is an important aspect of the regional and strategic planning structure of the area – a status which is maintained in the new paragraph 42(a) of PPG3 issued as recently as January 2005. I am also conscious that the structure plan is the most recent expression of development of plan policy, and that it should therefore enjoy the most substantial weight in the event of conflict with the other parts of the development plan which indicate the opposite conclusion. In addition, I have also given substantial weight to the current and projected size of the over-supply. On balance, I conclude this aspect of the proposal is sufficient to outweigh the other town-wide and more localised benefits of the scheme which I have considered under the second and third sub-heading of the main issue. For the reasons given above and having regard to all other matters raised, I conclude that this appeal should be dismissed'.
'Under this section it seems to me that the court can interfere with the Minister's decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with the position when the court has power to interfere with the decision of a lower tribunal which has erred in point of law'.
'Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised.'
"1. The expressions used in the authorities that the decision maker has failed to take into account a matter which is relevant, which is the formulation for instance in Forbes J's judgment in Seddon Properties, or that he has failed to take into consideration matters which he ought to take into account, which was the way that Lord Greene put it in Wednesbury and Lord Denning in Ashbridge Investments, have the same meaning.
2. The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb "might", I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account
3. If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account.
4. As Hodgson J said, there is clearly a distinction between matters which a decision maker is obliged by statue to take into account and those where the obligation to take into account is to be implied from the nature of the decision and the matter in question.
5. If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category it is for the judge to decide whether it was a matter which the decision maker should have taken into account.
6. If the judge concludes that the matter was "fundamental to the decision", so that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid.
7. Even if the judge has concluded that he could hold that the decision is invalid, in exceptional circumstances he is entitled nevertheless, in the exercise of his discretion, not to grant any relief."
"Matters of planning judgment are within the exclusive province of the inspector. An application under section 288 is not an opportunity for a review of the planning merits of the Inspector's decision, and the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits" (see R (Newsmith Stainless Ltd.) v. Secretary of State for the Environment. Transport and Regions  EWHC Admin 74, per Sullivan J at paragraphs 6 to 8).
The weight (if any) to be attached to a material consideration in determining a planning appeal is entirely a matter for the decision-maker: Tesco Stores Ltd. v. Secretary of State for the Environment  1 WLR 759, per Lord Keith at p. 764G-H and per Lord Hoffmann at p. 780 F-H).
"The reasons given for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognizing that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision" (South Bucks District Council v. Porter (No. 2)  1 WLR 1953, per Lord Brown).'