England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 July 2007

Introduction

1. This is an application under Section 287 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash aspects of the Weymouth and Portland Local Plan Review which was adopted by the Defendants ("the Council") on 15 December 2005.
2. The Claimants are developers and builders. They own land known as "Destiny Fields" which is located to the east of Littlemoor, where it is immediately adjacent to a residential area. To the east, between the site and Preston, there is Wyke Oliver Hill. To the north, there are Tout Downs, part of the South Downs Area of Outstanding Natural Beauty ("AONB"). To the south, there is open land (Southdown Ridge).
3. The site is very broadly rectangular in shape, and for the purposes of this case it is subdivided into approximate quadrants, albeit unequal in size. The south-west quadrant is Area C: the two eastern quadrants together, Area D: and the north-west quadrant is split by a north-west to south-east diagonal, into Areas A and B. Adjacent to Area A, to the west, there is a node, Area F.
4. Area C has already been developed, the Claimants having built a residential development on it, called "Harefields", in circumstances to which I shall return (see Paragraphs 10-11 below). As part of the development of Area C, a balancing pond was constructed in Area F (the Preston Downs Pond). This application concerns Areas A, B and D, which in aggregate comprise 5.3 hectares ("the objection site").
5. The Council is the local planning authority responsible for the preparation and adoption of the statutory local development plan for the area. On 15 December 2005, they adopted the Weymouth and Portland Borough Local Plan Review ("the Local Plan Review"), and on 19 December 2005 they published the relevant Notice of Adoption.
6. The Local Plan Review and its Proposals Map designated the objection site as lying:

(i) outside the Defined Development Boundary ("DDB") of Littlemoor, where policy D1 does not allow residential development;

(ii) within an Important Open Gap ("IOG"), where policy D2 restricts development; and

(iii) within an Area of Local Landscape Importance ("ALLI"), where policy N13 restricts development.

These designations mean that the Claimants are unable to develop the objection site. The plan also placed another near-by site owned by a third-party to the south-west of the objection site ("the Louviers Road site") within the DDB, and allocated it for housing development.

7. The Claimants seek to quash the Local Plan Review insofar as it made these designations. They do so on two grounds:

(i) The Natural Justice Issue: The Council acted contrary to the rules of natural justice and Article 6 of the European Convention Human Rights in failing to give the Claimants an adequate opportunity to put their case in respect of their objections to the plan, in that their expert evidence concerning drainage issues was excluded by the Independent Inspector who recommended the designations which the Council adopted.

(ii) The Reasons Issue: The Council have failed to give adequate reasons for making these designations. Again, because the Council merely adopted the recommendations of the Inspector (without giving any further reasons of their own), it is the Inspector's reasons that the Claimants submit were inadequate.

8. Before I deal with these issues, it would be helpful to set out some of the relevant background.

i)

ii)

iii) The 1997 Local Plan

9. In 1997, following a lengthy inquiry by an Independent Inspector (Mr John Davies) which began on 7 February and ended on 5 December 1995 (and which culminated in Mr Davies' Report dated 1 March 1996), the Council adopted the Weymouth and Portland Local Plan. This plan was premised on the route of the proposed Weymouth Relief Road running north-south through the Destiny Fields site ("the Brown Route"), and land was reserved in the plan for that purpose.
10. The Claimants sought to develop the Destiny Fields land to the west of the Brown Route (Areas A, B and C). In the 1997 plan, Area C was designated within the DDB, and allocated for housing. Area A was also placed within the DDB, although not allocated either to Class B1 - the Claimants wished to construct a petrol filling station on the relief road - or for residential development. Areas A and B were designated as neither IOG nor ALLI, on the basis that "the housing needs of the Borough presently outweigh the objection site's existing landscape and open gap value, and the land between Littlemoor and Wyke Oliver Hill is a logical extension of the built up area" (Mr Davies's Report, Paragraph 3.40.7). Area B (with the land to the east of the Brown Route, including Area D) was designated as IOG and ALLI, and fell outside the DDB.
11. The plan was encouraging for the Claimants, who wished to develop the whole of the Destiny Fields site or as much of it as they could. Area C had all of the relevant designations to enable its residential development: and, although the Inspector's Report recommended that "the policy should require that the development of the site [i.e. Area C] does not proceed until all procedures in connection with the Brown Route have been completed and finance is available for its construction" (Report, Paragraph 3.40 Recommendation), Area C was in fact developed by the Claimants before the relief road was commenced.
12. Furthermore, Mr Davies' Report gave them some hope for the future with regard to other areas. Although he considered the areas to have some landscape and open gap value, in considering the suitability of Areas A, B and C for housing he concluded:

(i) The site had easy access to the schools, shops and other facilities serving the Littlemoor area and was well served by public transport and generally complies with Government policies on the location of new housing development (Paragraph 3.40.5).

(ii) The site was well related in physical and visual terms to the existing built up area (Paragraph 2.12.6 and 3.40.7).

(iii) The land between Littlemoor and Wyke Oliver Hill was a logical extension of the built up area (Paragraph 2.12.6 and 3.40.7).

(iv) The site did not form a visual landscape link with the AONB to the north; the landscape link was through Wyke Oliver Hill which would not be disturbed if the site was developed (Paragraph 2.12.3).

(v) The site was not required to maintain visual separation between Littlemoor to the west and Preston to the east as Wyke Oliver Hill is a significant landscape feature that is more than adequate in itself to separate these built up areas (Paragraph 2.12.6 and 3.40.7).

(vi) Even if the relief road did not follow the Brown Route, the allocation of Areas A and C for housing would still be justified as at that time the need for housing outweighed the existing landscape and open gap value of the site. Without the hard boundary of the road, the boundary would have little logic in terms of physical features: but the appropriate boundary could be determined through the local plan review process (Paragraph 2.12.6 and 3.40.7).

Therefore, Mr Davies appeared to conclude that, even if the relief road did not follow the Brown Route, Area C was suitable for housing and that Area A was potentially suitable but that a different outer boundary may be required in that event.

13. As I have indicated, Mr Davies also said (Paragraph 2.12.6) that "the land between Littlemoor and Wyke Oliver Hill is in my view a logical extension of the built up area" and "consequently, its allocation for housing would be justified even if the Brown Route were not proposed, although the development boundary would then have to be drawn differently, to follow existing physical features"; but this has to be seen in the context that the objection site was restricted to Areas A, B and C. His recommendation was that the DDB be moved to include just Areas A and C: and I am unconvinced from his report that he had Area D in mind at all when making these remarks. On the wording of the report, it is unlikely that he did. Nevertheless, the Claimants were given some encouragement that they may in the future be able to develop more than Area C.

The Plan Review

14. The 1997 plan was reviewed in 2001.
15. By then, Planning Policy Guidance Note No 3: Housing had been published by the Department of the Environment, Transport and the Regions (published 7 March 2001). In Paragraphs 30 and 31, this gave some guidance as to the identification of sites for housing development, as follows:

"30. In identifying sites to be allocated for housing in local plans and UDPs, local planning authorities should follow a search sequence, starting with the re-use of previously-developed land and buildings within urban areas identified by the urban housing capacity study, then urban extensions, and finally new development around nodes in good public transport corridors. They should seek only to identify sufficient land to meet the housing requirement set as a result of the RPG and strategic planning processes. In doing so they do not need to consider all the land in their area: they should not extend the search further than required to provide sufficient capacity to meet the agreed housing requirement.

31. In deciding which sites to allocate for housing in local plans and UDPs, local planning authorities should assess their potential and suitability for development against each of the following criteria:

the availability of previously-developed sites…;

the location and accessibility of potential development sites to jobs, shops and services by modes other than car, and the potential for improving such accessibility;

the capacity of existing and potential infrastructure…;

the ability to build communities…;

the physical and environmental constraints on development of the land, including, for example, the level of contamination, stability and flood risk, taking into account that such risk may increase as a result of climate change.

In short, the Guidance required the identification and allocation of brown field sites first, before green field sites: and gave some criteria for selection between competing sites.

16. In their review, the Council considered that there were insufficient brown field sites in their area to meet their housing requirements: and consequently they proposed to identify and use green field sites (as well as available brown field sites) in the reviewed plan.
17. On 16 January 2001, the Council published the First Deposit of the Weymouth and Portland Local Plan Review. At this time, it was still proposed that the relief road followed the Brown Route. The plan identified 20 sites for housing allocation (12 brown field, 7 green field and one mixed site) including, as a green field site, the Louviers Road site. However, it designated the Destiny Fields site (other than Area C, which by now had been developed) as outside the DDB, and within the IOG and ALLI designations. These designations made the site subject to policies D1, D2 and N13 referred to above (Paragraph 6) which effectively prevent residential development of the site. It represented a change from the 1997 plan in that in the review Area A had been excluded from the DDB, and had been designated as IOG and ALLI. Furthermore, it included the Louviers Road site as within the DDB and allocated it to housing (policy H1t), and outside the IOG and ALLI designations, which were changes from 1997. There were no other relevant changes in designations.
18. On 8 March 2001 the Claimants submitted objections to the First Deposit Draft on the basis that, if the Brown Route was abandoned in favour of an alternative that did not run through the Destiny Fields site ("the Orange Route"), then the whole of the Destiny Fields site should be (i) included within the DDB, (ii) excluded from the IOG and ALLI designations (although whether a valid objection to the ALLI designation is in issue: see Paragraphs 64 and following below) and (iii) allocated for housing. The Claimant further objected to the allocation of the Louviers Road site for housing, on the basis that, if housing requirements meant that both sites could not be allocated for housing, the Destiny Fields site was the preferable site.
19. Counter-representations by various interested parties were made to the effect that the proposal was premature pending a decision on the relief road route: and, in any event, there was objection to "impact of development on traffic, flooding, nature conservation and amenity space" (Council's Report on Objection Sites). The Council's officer considering the objections recommended that the Claimants' objections be rejected, and that the Louviers Road site retain its housing allocation as it was, "More sustainable than alternative green field sites….". That recommendation was accepted by the Council on 11 December 2001. The Claimant's objections in relation to the IOG and ALLI designations were not specifically dealt with.
20. The issue of flooding and drainage raised by the counter representations in the 11 December 2001 report led to the Claimant entering into discussions with the Council, the details of which are sparse. However, as a result of the discussions, the Claimants say that they understood that an in principle agreement had been reached with the Council on this issue which would not prevent the development of Destiny Fields for housing. I shall return to that shortly.
21. In May 2003 the Local Plan Review Revised Deposit was published by the Council. By this time, the Orange Route had been substituted for the Brown Route as the preferred route for the relief road. This meant that the relief road was no longer proposed to run through the Destiny Fields site.
22. However, the Revised Deposit made no change to the position and status of either the objection site or the Louviers Road site. The latter was still allocated for housing, and the plan retained the exclusion of the Destiny Fields site from within the DDB and its inclusion within the IOG and ALLI designated areas. The Claimants lodged objections to the Revised Deposit on a similar basis to their objection to the First Deposit Draft. In particular, they submitted that:

(i) In the absence of the Brown Route, the present development of Area C represented an unsatisfactory unfinished edge to the settlement and that at least Area A should be included within the DDB.

(ii) The previous Inspector (Mr Davies) had indicated that, in the absence of the Brown Route, Wyke Oliver Hill would provide adequate separation to enable housing to take place on the site. The objection site was not required to maintain separation of Littlemoor and Preston.

(iii) The objection site was preferable to the Louviers Road site in terms of (a) landscape, and (b) drainage/potential for flooding.

It is to be noted that submission (iii) is specifically based upon a comparison of merits of the objection site and Louviers Road, in relation to both landscape and drainage.

23. The Claimant's objections were not regarded by the Council as new, but rather the same as the objections to the first Deposit Draft which had been considered. Consequently, they did not consider these objections further.

The Inquiry

24. A Local Plan Inquiry into the various objections that had been made in respect of the Review Plan Deposit - including the Claimants' objections - was held by an Independent Inspector, Mr William Cunningham ("the Inspector"). At the pre-inquiry hearing on 4 November 2003, "The Inspector encouraged those objectors who wished to present their case at the Inquiry to do so and not to be put off by the apparent formalities" (Notes of the Pre-Inquiry Meeting, Paragraph 6). Further:

"It was stated that objector's Proofs of Evidence must be submitted 6 weeks before the date of the inquiry session dealing with that matter. These deadlines are not negotiable." (Notes of the Pre-Inquiry Meeting, Paragraph 9).

25. The Claimants requested an oral hearing to consider their objections in respect of the Destiny Fields and Louviers Road sites: and one day (22 April 2004) was allocated in the inquiry timetable for these objections to be heard. They duly lodged their written evidence as required six weeks in advance, i.e. on 11 March 2004.
26. The Claimants' evidence comprised statements from Mr Andrew Patrick and Mr Will Pulling, both experts in respect of landscape issues. In particular, as the Council had come to the view that there were insufficient brown field sites to accommodate the relevant housing requirements (so that there would have to be some recourse to green field sites), the evidence particularly sought to show that, from a landscape point of view, the objection site was a preferable site for housing than the Louviers Road site which had been given a housing allocation in the proposed plan.
27. The Claimant's evidence sought to demonstrate the following:

(i) The objection site (Areas A, B and D) was sustainably located, well related to local facilities and public transport (as found by the Inspector in respect of Areas A, B and C) and whilst comparable in this respect to the Louviers Road site was in fact marginally preferable.

(ii) There would be no infrastructure problems with the development of the objection site and in particular that an in principle agreement had been obtained with the County Council in respect of a solution for surface water drainage of the site in the event of its development for housing and that preliminary approval had been given by Environment Agency.

(iii) Indeed it was the Claimant's understanding at that time that there were no in principle infrastructure objections, including flooding and drainage, to the development of the Destiny Fields site for housing and that it was agreed between the Claimants and the Council that appropriate schemes could be developed to accommodate these issues. Indeed there is no indication in the officer's earlier recommendation that this was an issue.

(iv) In the absence of the Brown Route, the objection site was well constrained on all its boundaries and would provide a logical boundary through the use of existing physical features and landscape planting (as suggested would be required by Mr Davies); indeed the objection site provided an opportunity to provide an improved eastern boundary to Littlemoor.

(v) The development of the objection site would not prejudice the open gap between Littlemoor and Preston as Wyke Oliver Hill performed an adequate role for the purpose of separation (as found by the previous Inspector); the objection site did not therefore warrant the designation as an IOG.

(vi) The objection site did not warrant the inclusion within an ALLI and indeed to do so would reduce the true value of adjacent more attractive and valuable land.

(vii) Development of the objection site for housing would fit in with the existing and identified landscape and visual pattern of Littlemoor and not cause any harm.

(viii) In contrast to the objection site, the Louviers Road site:

(a) was not constrained to the south or east by any natural physical and/or vegetated boundaries and its development for housing would damage the landscape and visual integrity of the Southdown Ridge and wider visual links within the area particularly to the AONB to the north; and

(b) broke fundamental landscape and visual guidelines for constraining new development in sensitive areas and in particular would breach the skyline of the Southdown Ridge and would generally be visually intrusive in this attractive landscape.

28. The thrust of the evidence was therefore that, on landscape grounds, the objection site should be preferred over the Louviers Road site for housing and so allocated, and the constraint designations over it should be deleted.
29. Neither Mr Patrick nor Mr Pulling purported to be expert in issues other than landscape, e.g. drainage issues. The only evidence in relation to drainage of the objection site was in one short section of Appendix G to Mr Patrick's report, which was in the form of a technical report prepared by Mr David Webb of the Claimants on 5 March 2004. Mr Patrick's own report merely asserted that "there are no flooding or drainage problems" (Paragraphs 1.6 and 5.9(e)). Section 6 of Appendix G indicated that Dorset County Council had "agreed in principle" that the Preston Downs balancing pond would be removed, and the Chalbury Close balancing pond upgraded to accommodate the additional surface water from the Orange Route relief road upgrade, the new development and the removal of the Preston Downs pond. There were no technical details as to how this was to be achieved. Therefore, although Mr Patrick's substantive report boldly says (at Paragraph 6.6), "The Technical Note at Appendix G demonstrates clearly that there would be no problems with regard to flooding, contamination and ground stability"; in truth, Appendix G did nothing of the sort.
30. It was said on behalf of the Claimants that the explanation for the absence of any cogent evidence in relation to drainage is that Mr Patrick and Mr Pulling were told by the Claimants that there was no in principle issue concerning drainage, and the only live issue concerned landscaping. Their evidence exclusively focused on that. The Claimants believed that drainage was not an in principle issue because of a meeting between Mr Webb of the Claimants and Mr Mike Read of Dorset County Council on 27 November 2003. There is very little evidence of what was said at that meeting. The only note of the meeting is in a letter of Mr Webb dated 4 March 2004. That was written 4 months after the meeting, and the day before Mr Webb settled the technical note at Appendix G to Mr Patrick's report. The letter does not expressly refer to any in principle agreement with regard to drainage, but rather says (as "a summary of the matters discussed so far"):

"We are proposing to remove the balancing pond on Louviers Road due to its unsightly appearance and to improve the use of the land, which could be incorporated into our new development, adjacent to the Louviers Road and Littlemoor Road.

My discussions with you indicated that the Chalbury balancing pond would be upgraded due to its history of flooding.

We would be interested in a combined balancing pond at the Chalbury pond. The design of the road widening aspects and balancing pond are at present being completed by Dorset County Council Highways Department, and hence the calculations for the balancing pond is in process. Could the calculations for a combined balancing pond be incorporated into the design proposals, taking into account the removal of our balancing pond and proposed new development?"

31. Mr Towler for the Council said it was difficult to understand how this letter could have been written only the day before the technical note, which suggested there was in principle agreement in respect of drainage. I agree. However, what is very clear from the evidence as a whole submitted by the Claimants is that, for whatever reason, they did consider that there was an in principle agreement in relation to drainage. Whilst there is considerable evidence submitted on the landscape issue, there is effectively none on drainage. The consistent message in their evidence is that they did not consider that there was any issue in relation to drainage.
32. It is equally clear from the evidence submitted on behalf of the Council that this was a misunderstanding. Upon receipt of the Claimants' evidence, Dorset County Council wrote a letter to the Council (dated 29 March 2004) saying that they had given no indication that the objection site would be acceptable "in principle": and the Environment Agency wrote indicating that they had very real concerns about the drainage and flooding potential of the objection site (letter dated 31 March 2004). These letters were annexed to the statement of Miss Karyn Punchard (of the Council's Planning Department) in response to the Claimant's evidence. Miss Punchard (in her Proof Summary) said that all of the allocated sites were "sequentially preferable" to the objection site in terms of not increasing flood risk.
33. Although there is a sparsity of evidence, on the evidence I do have before me I find that:

(i) At the time of lodging their evidence for the inspection hearing, the Claimants understood that there was no in principle issue in relation to drainage.

(ii) That was a misunderstanding. It is clear from the Council's evidence that the Council considered there to be significant unresolved issues in relation to drainage of the objection site. It is unclear how the Claimants' misunderstanding arose.

(iii) From wherever the Claimants' misunderstanding derived, the Defendants did nothing to give rise to it. The misunderstanding was not in any way the fault of the Defendants.

34. The Council's response to the Claimants' evidence was also filed on time (1 April), arriving with the Claimants on 5 April 2004.
35. In response to the Claimants' evidence, the Council produced "rebuttal" statements on planning policy (Statement of Miss Karyn Punchard), landscape (Statement of Mr Burden), and a comparison with the Louviers Road site (Statement of Mr Steven Birkinshaw). They also filed two technical rebuttal reports in respect of the flooding and drainage technical note, i.e. Appendix G to Mr Patrick's statement (Reports of Mr Michael Lakin and Mr Mike Read). This evidence, amongst other things, compared the drainage and flood potential of the objection site with that of the Louviers Road site (see, e.g., Appendix 6 to Mr Birkinshaw's Statement, which was prepared by Mr Lakin).
36. That evidence sought to demonstrate:

(i) The objection site and the Louviers Road site shared similar characteristics in terms of accessibility.

(ii) There was an in principle objection to the development of the Destiny Fields site in relation to matters of flooding and drainage: and, as indicated above, no agreement had been reached with the Council, the County Council or the Environment Agency on drainage issues. In particular technical evidence produced by the Council suggested that:

(a) the existing flood attenuation facilities within the locality at Chalbury and Preston Downs Ponds had no further capacity to cope with flooding if the Destiny Fields site were to be developed for housing; and

(b) the Claimants had not demonstrated that it was possible to create an adequate and sustainable on-site attenuation of surface water run-off for the site's development for housing. Of course, Appendix G had no supporting technical data at all: and in any event proposed part off-site attenuation.

(iii) The Louviers Road site was preferable in drainage/flooding terms.

(iv) The development of the objection site would adversely affect the open gap between Littlemoor and Preston and Wyke Oliver Hill.

(v) The development of the objection site would destroy the link with the AONB to the north.

(vi) The development of the Louviers Road site would not have the landscape effects suggested by the Claimants.

(vii) The Louviers Road site was to be preferred in terms of landscape and drainage.

37. That evidence made clear that, in relation to the Claimant's objections, there were two vital issues between the Claimant and the Council namely (i) landscaping, and (ii) drainage/flooding potential. Given that (i) the Council had accepted that some green field sites would have to be included to meet the demand for housing, and (ii) the Louviers Road site had not had any designation adverse to development and indeed had been placed within the DDB and allocated to housing, these were essentially issues of comparison between the objection site and the Louviers Road site. If the Claimants could show that the objection site was preferable to the Louviers Road site as they suggested, then their objection was good and they sought the replacement of the Destiny Fields site for Louviers Road site in terms of the DDB and housing allocation designation. If they could not show such a favourable balance, then their objection was bad. For the reasons given above, until receipt of the Council's evidence, the Claimants had understood this balancing exercise to be in respect of landscaping matters only. After the receipt of that evidence, they appreciated (for the first time) that, in addition to landscaping, the respective merits of drainage were also in issue - because there was an in principle issue of drainage in relation to the objection site but not in respect of the Louviers Road site.
38. On 13 April 2004, the Claimants instructed their own drainage expert, Mr Anthony Dilke. They did not tell either the Council or the Inspector that they intended now to rely upon such further evidence. The report was completed on 21 April - the day before the hearing of the issue - and the report was given to the Council and to the Inspector on the morning of that hearing. Mr Dilke also attended the hearing that day, prepared to give oral evidence.
39. Mr Dilke's report purported comprehensively and conclusively to answer the drainage concerns of the Council, and show:

(i) Adequate storage requirements could be effectively incorporated into the Destiny Fields site. This was supported by relevant calculations.

(ii) The existing balancing facility at Preston Downs (Area F) could be relocated to the Destiny Fields site in order to provide adequate capacity for the existing development is served together with future development on Destiny Fields.

(iii) Development of the Destiny Fields site would have nil effect on the Chalbury Pond facility.

(iv) Development of the Louviers Road site could cause additional flooding at Wyke Oliver Farm.

(v) Whilst either site could be developed without an increase of flooding, the Destiny Field site was more suited to development as it was able to incorporate desirable design features which would be more suitable in the landscape rather than the type of facility that would be required at the Louviers Road site that would give rise to significant excavations up the hill.

Again, the comparison between drainage and flooding potential for the objection site and the Louviers Road site should be noted.

40. This evidence purported to deal with all of the Council's concerns about the drainage of the objection site. It is abundantly clear that this evidence would have been relevant to one of the two vital issues arising out of the Claimants' objections: and, if accepted, almost certainly determinative on that issue. In particular, as opposed to the drainage proposed by Mr Webb in the technical note (which proposed a partially off-site solution, using a stream for drainage), Mr Dilke proposed an on-site solution using (primarily) an enhanced Chalbury Balancing Pond. The scheme was substantially different from that suggested by Mr Webb in the written evidence.

The Natural Justice Issue

41. During the course of the inquiry - including as an advocate at the pre-hearing meeting and at the inspection hearing itself - the Council were represented by Counsel. The Claimants were represented throughout by Mr James Cleary of Pro Vision Planning and Design, a firm of non-legally qualified planning advisers. Given that the Claimants understood that the only issue was to be landscaping and the Inspector had encouraged objectors not to be put off by formality, Mr Cleary thought that there would be no "forensic type cross examination" and there was therefore no need for legal representation (Statement 31 January 2006, Paragraph 4).
42. When Mr Cleary sought to introduce Mr Dilke's report, the Council objected: and the Inspector ruled that the evidence could not be relied upon and Mr Dilke could not be called.
43. The circumstances of and reasons for this ruling are important but unfortunately not entirely clear. Initially, there was no evidence before me as to either. Mr Towler (who was present at the objection hearing) frankly said that he could not recall a great deal about it - except that Mr Dilke's report was handed in to the Programme Officer, and "Mr Dilke's report was not shown to either the inspector or the Council" (Skeleton Argument, Paragraph 14). The Inspector did not look at Mr Dilke's report at all before ruling as to whether it would be admitted.
44. Miss Ornsby initially submitted that the only reason for the Inspector refusing to admit the evidence was that it was too late. He had made it clear that the time for filing evidence was "not negotiable" (see Paragraph 24 above), and he was not prepared to countenance any further evidence being admitted whatever the circumstances. He regarded lateness as an absolute bar, and did not exercise any discretion as to whether this evidence should have been admitted in the circumstances in which it was brought forward by the Claimants.
45. Had that been the case, the Inspector would clearly have been acting improperly. Whilst case management is essentially a matter for the tribunal (whether it be judge, tribunal chairman or independent inspector) and robust case management is to be commended, where someone seeks to admit evidence then the tribunal must exercise its discretion as to whether to allow it to be adduced. If a party without good reason fails to submit evidence in accordance with unequivocal orders requiring evidence to be filed by a particular time and makes a very late application to have the evidence admitted, he may receive an unsympathetic response. However, lateness and non-compliance with orders or directions for service of evidence by a particular date are only two factors which the tribunal will bear in mind in exercising its discretion as to whether to extend time for the evidence to be admitted. The reason for the lateness, and importance of the evidence to the determinative issues, are other important factors. For a tribunal to refuse a party permission to rely upon evidence without a proper exercise of its discretion is a procedural irregularity: and, depending upon its consequences, may be such a serious irregularity to render the hearing unfair to the party denied.
46. However, during the course of the hearing before me, Miss Punchard found and produced her hand written note of the hearing of 22 April 2004 before the Inspector. This indicated that the Inspector did not simply bar reliance on the evidence without any consideration of any other relevant factors at all. The note reads (insofar as it can be made out):

"James Cleary

Drainage - not an issue when evidence submitted. Highways not important. Was an attempt to formalise mtgs resisted. No mtg took place. Work on drainage not carried out - didn't anticipate drainage issue - some detailed work done by LPA - complete surprise/out of the blue. Instructed civil engineer ? technical issue now exists - in their view. Mr Dilke & [illegible] - agree common ground in a room today.

[Mr Towler] Letter asking questions - not summarising mtg? Letter dated March.

Strongly object to new [material] on morning of hearing.

? Insp - not sufficient time for Council to resend to it.

Not precluding adjournment.

Experts to see if any common ground.

Feel [?] - Need an adjournment of some weeks.

James C[leary] - innocence/naivety. EA - will be drawn out. Informal mtgs - yes - at early stages - clear impression consensus.

[Dorset County Council] not able to produce forecasts as money not available until Dec 03. They had impression drainage OK - perception. "Call it an illusion". Where is evidence?

[Insp] Will not allow new evidence today.

Concern - it will come in thro back door.

Mr Patrick can comment on proofs of [Mr Read] and [Mr Lakin].

Object - doesn't help to know something coming up on horizon.

[Therefore] no new evidence & witness."

47. From this note it appears that:

(i) The Inspector had in mind the lateness of the evidence, and the difficulties that this would make for the Council properly to respond, or at least properly to respond that day. He also no doubt had in mind his own direction that objectors' evidence must be filed at least 6 weeks before the hearing, and this was said in the direction to be "not negotiable".

(ii) He had in mind at one stage at least the possibility of an adjournment.

(iii) He was told that the Claimants had not put forward this evidence earlier because they had understood that drainage was not an in principle issue: and, although he did not read the evidence himself, he was told by Mr Cleary that Mr Dilke's report comprehensively answered the Council's concerns about drainage in the objection site.

(iv) He had in mind the possibility that Mr Dilke, Mr Read and Mr Lakin might be able to agree something, if given an opportunity.

(v) He was concerned that, even if the evidence were not admitted, it might "come through the back door", e.g. presumably in the form of questions in cross-examination of Mr Read and Mr Lakin.

(vi) He thought that Mr Patrick could give oral evidence in response to the reports of Mr Read and Mr Lakin.

48. The Claimant's objections were due to be heard to a conclusion in one day, i.e. 22 April 2004, the day on which the application to rely upon Mr Dilke's report was made. Unfortunately, they were not completed that day, and the objections were heard over 4 days (22, 23 and 29 April, and 8 June 2004). As Mr Towler says in his written submissions (Paragraphs 15-16), "During that time the drainage issues were examined in some detail with extensive XXN of both Lakin and Read by Mr Cleary, presumably on the basis of Mr Dilke's proof…. Thus, although the Inspector did not allow Mr Dilke to give evidence he did allow the issue to be explored in depth, including the landscape implications of the Claimant's proposed balancing ponds." The suggestion of the Claimants that the Inspector was trying unduly to rush the issue does not seem to have any substance.
49. Where an inquiry is held the holder of the inquiry is required to conduct a fair hearing, and act in accordance with the rules of natural justice. Amongst other things, although the procedure need not have the formality or rigidity of a civil court hearing, he must ensure that an objector knows the case he has to meet and is afforded an adequate opportunity to meet that case: Fairmount Investments Ltd v The Secretary of State for the Environment [1976] 1 WLR 1255. Where, as in the case before me, "a council is both proposer and judge, the obligation to deal thoroughly, conscientiously, and fairly with any objection is enhanced" (Stirk v Bridgnorth District Council (1996) 73 P&CR 439 at page 444, per Thorpe LJ). I respectfully agree with both Counsel before me that the rights of an objector to a fair trial under Article 6 of the European Convention on Human Rights are coterminous with - or at least no greater than - the right to a fair trial at common law. Usually in a human rights context this is put in terms of the right to "equality of arms" which involves striking a fair procedural balance between the parties (see, e.g., Neumeister v Austria (1968) 1 EHRR 91, at Paragraph 22).
50. Of course, the facts of Fairmount and Stirk are very different from the facts of the case before me: and, "All cases in which the principles of natural justice are invoked must depend on the particular circumstances of the case" (Fairmount, at page 1265H, per Viscount Dilhorne). I have considered the circumstances of this case with especial care. I have considerable sympathy for the Inspector who wished to press on with his inquiry, and was faced with an application on the morning of 22 April 2004 for the expert evidence of Mr Dilke to be admitted with the possibility that this would lead to an adjournment of the Claimants' objections and some more general disruption to the inquiry timetable. Every judge, tribunal chairman or inspector would have sympathy with him in the situation he faced.
51. However, having considered the circumstances of this case, I am afraid I have come to the conclusion that the Inspector failed to give the Claimants an adequate opportunity to make their case and to respond to the case the Council sought to make. In coming to that conclusion, I have in particular taken into account the following:

(i) In considering whether the Claimants had a fair hearing, I have to consider the circumstances of the case as a whole. A single decision of the holder of an inquiry cannot be looked at in isolation. I have to consider whether, looking at the inquiry as a whole, the Claimants had a fair hearing.

(ii) Mr Towler frankly accepted that, with the benefit of hindsight, the Inspector's decision not to allow in the evidence of Mr Dilke was unfortunate. It led to increased time on the drainage issues, because Mr Cleary cross-examined Mr Read and Mr Lakin on the substance of Mr Dilke's views without having the benefit of being able to refer directly to his report. However, the Inspector cannot be criticised for not having the benefit of hindsight. Furthermore, it is equally irrelevant that other Inspectors faced with the same dilemma might well have made a different decision on the application to admit Mr Dilke's report. The discretion in an inspector as to what evidence to admit is wide. The question for me is, did this inspector stray outside that wide discretion and thereby act unlawfully?

(iii) In exercising his discretion, the Inspector had to take into account the strength of the evidence sought to be admitted. First, it was clear (and must have been clear to the Inspector) that Mr Dilke's report went to one of the two determinative issues in the Claimants' objections, i.e. the drainage issue. Second, the Inspector had to consider the strength of the evidence in relation to that issue. He did not look at Mr Dilke's report before deciding not to admit it. However, Mr Cleary submitted that it emphatically and entirely answered the Council's concerns about the drainage of the objection site. He could not properly not have accepted the submission, without reading the evidence or allowing the Council to consider and respond to it. If the submission was correct, then it is difficult to see how the Inspector could properly have refused to admit evidence that was conclusive on a vital issue before him.

(iv) The Inspector had set aside one day in which to hear the Claimants' objections. Without the Council or the Inspector himself having looked at Mr Dilke's report, it was difficult to see how either of them could have come to a view as to how long it might take for the Council (and, particularly, Mr Read and Mr Lakin) to consider the evidence and respond. Although the Inspector referred to the possibility of an adjournment and the possibility of the experts considering the evidence together and trying to find some common ground, in fact he apparently proceeded to decide not to admit Mr Dilke's evidence without giving an opportunity for either: and without even giving Mr Read and Mr Lakin (who were at the hearing) time to consider Mr Dilke' evidence to come to a view as to whether it would require time to respond, and if so how long. In properly exercising his discretion, when the issue arose on 22 April bearing in mind the potential importance of the evidence the Inspector was bound to consider ways in which the evidence might be admitted without unreasonable disruption to the inquiry timetable. This he failed to do.

(v) The Inspector had hoped to deal with the Claimants' objection to a conclusion that day (22 April). When it became apparent that they were not going to finish - they in fact went on over another three days between 23 April and 8 June - the Inspector had an opportunity to review and should have reviewed his decision not to admit Mr Dilke's report. If he had thought that he could prevent the evidence "coming through the back door", by the end of the 22 or 23 April he must have realised that he had failed. There were opportunities at least to allow the Council to consider Mr Dilke' evidence and respond. Given the length of the overall hearing - it went on into July - the Inspector should have considered more carefully and more often the possibility of rearranging the inquiry timetable to allow the Council to consider Mr Dilke' evidence with an appropriate adjournment to later in the inquiry hearing timetable if necessary. Given that Mr Cleary was not legally qualified, and he had had an application to rely on Mr Dilke's evidence turned down on the first date of the objections hearing, I do not consider he can be said to be at fault in not renewing his application. The Inspector was in charge of the management of the inquiry, and the burden of reconsidering the position of Mr Dilke's evidence fell primarily upon him.

(vi) Having refused to admit Mr Dilke's report, the Inspector did allow the lengthy cross-examination of Mr Read and Mr Lakin on the basis of his views. Mr Towler submitted that this should be taken into account in the Inspector's favour when the fairness of the hearing as a whole is considered. However, as Mr Cleary said (Statement, 31 January 2006, Paragraph 11), without referring to Mr Dilke's report, "trying to address the flooding issues raised by the Council was impossible. I did try my best to question the Council's witnesses but in the absence of being able to call Mr Dilke or rely on is report I found this impossible. My hands were tied…". There is force in this evidence.

(vii) The Claimants may have been "naïve": but they genuinely considered that drainage was not an in principle issue between them and the Council.

(viii) The Inspector clearly considered that it would be helpful to the balance of arms if Mr Patrick commented upon the evidence of Mr Read and Mr Lakin. However, this was misconceived. Mr Patrick was not a drainage expert, nor did he profess to be. He could not deal with drainage issues with any professional expertise, experience or authority. That Mr Patrick was to give evidence was an improper matter for the Inspector to take into account in relation to this issue.

52. Therefore, the Inspector failed properly to exercise his discretion as to whether to admit Mr Dilke's evidence and in so doing he denied the Claimants the opportunity of relying upon important evidence in relation to a crucial issue. He denied the Claimants a fair crack of the procedural whip (see Fairmount at page 1266A, per Lord Russell of Killowen). In so doing he substantially prejudiced the Claimants' ability to present their case on the objections so far as a vital issue was concerned. Without the evidence of Mr Dilke, they could not have satisfied the Inspector with regard to the in principle drainage issues: because they had understood there was no such issue, they had no evidential basis upon which to do so. Nor could they have persuaded him that the objection site was preferable to the Louviers Road site, as they sought to do.
53. For all these reasons, I do not consider that the procedure as a whole was fair to the Claimants: and, in the circumstances of the case, they were not provided with an adequate opportunity to put their case or respond to that of the Council on a patently determinative issue. They were consequently substantially and unfairly prejudiced in the hearing.
54. That is sufficient to dispose of the application in the Claimants' favour. However, given I heard considerable argument on the adequacy of the Inspector's reasons I should deal briefly with this issue.

The Reasons Issue

Introduction

55. Under Regulation 27 of the Town and Country Planning (Development Plan) (England) Regulations 1999 (SI 1999 No 3280, "the 1999 Regulations"), where a local planning authority have caused a local inquiry to be held for the purposes of considering an objection to a local plan, the authority are required to consider the report of the person holding the inquiry and to prepare a statement of the decisions they have reached in the light of the report and any recommendations contained within it.
56. By Section 42(6) of the 1990 Act, Section 10 of the Tribunals and Inquiries Act 1992 applies to a decision taken by a local authority which effectively places a duty upon a local authority to give reasons for the decisions they reach in the light of the report and recommendations received, whether or not they decide to take any action. However, they only have a duty to give reasons in addition to those given in the inspector's report for any "decisions… which do not follow a recommendation contained in the [inspector's] report". Where they follow the recommendations (as in the case before me), they are under no duty to give further reasons. They can effectively rely upon the reasons given in the inspector's report insofar as they follow his recommendations.
57. An inspector must make findings on disputed issues which are material to the result. He must give reasons for any such findings. The absence of reasons is the subject of legitimate complaint. In making findings, the inspector must not of course take into account irrelevant considerations or leave out of account relevant ones. Where the complaint is that the reasons given are inadequate, the correct approach was set out in Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 (especially at pages 167C-198E per Lord Bridge), and by Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 at Paragraph 36. Briefly, the reasons must be intelligible, and adequate to enable a party to understand the conclusions on the "principle important controversial issues", and disclosing how those conclusions were reached. 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. The enhanced obligation on a planning authority which acts as both proposer and decision maker applies to the giving of reasons as much as to any other aspect of the duties of procedural fairness (Stirk v Bridgnorth District Council (1996) 73 P&CR 439). The planning history in relation to a site is a material planning consideration, so that where an inspector departs from an earlier conclusion reached in respect of similar issues he must give reasons which are adequate and intelligible for so doing (R v London Borough of Richmond-upon-Thames ex parte Spencer Chisnell [2005] EWHC 134). The burden of proving the inadequacy of reasons falls upon the applicant.
58. In February 2005 the Inspector produced a report into the objections to the Local Plan. The Claimants complain that the reasons for the designations attached to both the objection site and the Louviers Road site are inadequate in a number of respects. Given my earlier findings, I need only refer to four.

The Drainage Issue

59. In relation to the drainage issue, the Inspector concluded that no changes should be made to the plan in response to the Claimants' objections.
60. Of course, this conclusion is undermined because of the manner in which the Inspector dealt with Mr Dilke's evidence. For the reasons given above, without the evidence of Mr Dilke, the Inspector was bound to find that the Claimants had failed to satisfy him in respect of the drainage issue. Leaving aside the scant Appendix G, the only evidence before him in relation to the downstream risk was that of Mr Read and Mr Lakin (see Paragraph 2.3.13 of his report).
61. However, I find manner in which the Inspector's dealt with the Claimants' objections on the drainage issue unsatisfactory in any event. In Paragraph 2.3.14, he said:

"A surface water balancing scheme was presented on behalf of the objector at the Inquiry. This had not been fully assessed technically by the appropriate bodies; its visual impact, including its effect on the local landscape, had not been fully considered; and it required a considerable area of land to the east of the objection site. I have concluded that although a solution to the surface water drainage constraint outlined above may be possible, in the absence of a Flood Risk Assessment carried out in accordance with Appendix F to PPG25 I have not been convinced by the evidence presented in writing and at the Inquiry that the precautionary principle promoted in PPG25 can in this case reasonably be set aside."

62. I think it is a reflection of the confused manner in which the Inspector dealt with Mr Dilke's evidence - not admitting the report, but them effectively allowing it to be put to other witnesses - that it is unclear as to what "surface water balancing scheme" the Inspector is referring. Miss Ornsby suggested that it might be Mr Webb's scheme in Appendix G, because that was in evidence and Mr Dilke's report was not. However, if it is a reference to that scheme, it is unsurprising that the Inspector was unconvinced: as that technical note was put in at a stage when the Claimants considered drainage not to be an issue, and they wished to rely upon the different scheme proposed by Mr Dilke in the event that it was an issue. Mr Towler submitted that it was a reference to the scheme in Mr Dilke's report, which was effectively put to the witnesses in cross-examination. If that be the case - and, on balance, it seems to me probably so - then the Inspector considered a scheme that was not in evidence before him.
63. I am not sure whether on proper analysis this complaint of the Claimants can be described as one of inadequate reasons: because, once the Inspector had refused to allow in Mr Dilke's report, the Claimants' had no evidential basis for their case on the drainage issue. In my judgment, this lack of clarity on the Inspector's part is really the consequence of him dealing with the issue of the expert drainage evidence in less than an adequate way.

The ALLI Issue

64. The Claimants submitted that the Inspector failed to give any reasons for designating the objection site as ALLI: and in particular for designating Area A as ALLI, as it was not so designated in the 1997 Plan. The Council's primary submission was that the Claimants had never made a valid objection to the ALLI designation, and so the Inspector did not err in failing to deal with the issue (Skeleton Argument, Paragraph 10). Alternatively, Mr Towler submitted that the ALLI designation was "rolled up" with the IOG and DDB designations. The Inspector dealt with the DDB in Paragraph 2.3 of his report: and specifically with the IOG issue in Paragraphs 2.3.9-11. He makes no reference to the ALLI designation.
65. By Section 40(7) of the 1990 Act, an authority cannot adopt a local plan or review plan until they have considered any objections "made in accordance with the regulations". "The regulations" are the 1999 Regulations, Regulation 23 of which provides that:

"Objections and representations shall be made in writing and addressed to the local planning authority in accordance with the details given in the published notice."

66. The notice has to be by way of advertisement in Form 6 (Regulation 22). The notice in this case was placed in the London Gazette on 16 January 2001, and it merely required:

"Objections and representations should specify the matters to which they relate and the grounds on which they are made."

They had to arrive by 13 March 2001.

67. The Claimants' objections were lodged in time and, although there is no reference to the ALLI designation in the schedule or Council form of objections, that form is not mandatory and it is abundantly clear from the narrative that they objected to the ALLI designation given Areas A, B and D. This is perhaps clearest from the Claimants' Plan 3 lodged as part of the objections: but also from Paragraphs 1.2, 1.3(b) and 2.3 of the narrative, as well as Mr Patrick's evidence (especially Paragraph 2.6 of his report, but also Paragraphs 1.2, 1.3, 1.7, 2.5, 2.7 and 3.10 and also the plan attached to his report). Furthermore, the Council well understood that the Claimants were specifically objecting to the objection site being included within the ALLI designation (see Miss Punchard's Statement, Paragraph 1.0, "Summary of Objections": and Paragraph 2.1): and the evidence of Mr Pulling and Mr Burden deal with the ALLI designation issue.
68. There is no doubt that there was a duly made objection by the Claimants to the ALLI designation of the objection site: and they were entitled to a reasoned decision as to why their objection was not upheld.
69. Mr Towler's fall back position was similarly untenable. The Inspector did not refer to the ALLI designation at all. It cannot be said that his determination and reasons were some how "rolled up" into the Development Boundary and IOG designations. The criteria for each are different. The Development Boundary and IOG are essentially related to the function of land: ALLI to the quality of land. The ALLI designation objection needed separate consideration, determination and reasons.
70. Again, in my view this is not really a reasons issue. In relation to this objection, the Inspector made no decision at all. The ALLI designation would have to be quashed in any event: and, because the ALLI designation may be relevant to the DDB, the designation of the objection site as falling outside that boundary would also be compromised (because whether an area is not a designated ALLI is an indicator of sustainability (Sustainability Assessment of Proposed Housing Sites: Table 1 (Indicators of Sustainability)).

The Landscape Issue

71. A main criticism of the Inspector's report is that (in Paragraph 5.31.6), in preferring the Louviers Road site to the objection site on landscape grounds, he relies apparently exclusively upon the Sustainability Assessment of Proposed Housing Sites produced by the Council in 2001. The Claimants' complaint is that this evidence was by then 2-3 years old, and further the assessment was "a general overview rather than a detailed in depth analysis". They submit that the Inspector should have conducted an exercise of specifically comparing the Louviers Road and objection sites, an issue with which he simply did not grapple.
72. I am not satisfied that the report would have been found wanting on this ground alone. The 2001 assessment was in evidence before the Inspector, and it contained a comparison which he was entitled to take into account. On the basis of Paragraph 5.31.6, I am unconvinced that the Inspector failed to take into account the other evidence put before him on this issue: but simply that, having done so, he found the evidence of the assessment determinative.

Divergence from Mr Davies's Report

73. Similarly, leaving aside the Inspector's failure to deal properly with Mr. Dilke's evidence, I was not impressed by the Claimants' submission that the Inspector had failed properly to explain why he diverged from Mr Davies's Report. The only substantial difference between the reports was the designation of Area A as outside the DDB and within the IOG designation. The Inspector was entitled to take a different view on these designations, given the difference in circumstances since 1997, particularly the re-routing of the relief road. Although Mr Davies made some comments in relation to Areas A and C in his report on the basis that the Brown Route was not adopted, he made clear that no development (even of Area C) should go forward unless and until the road was routed through Destiny Fields and, if the road was re-routed, boundaries would have to be reconsidered as part of the plan review. That is what happened. The Inspector clearly had Mr Davies's Report in mind but, on all of the evidence, he came to a different conclusion with regard to the designations for Area A. The possibility of such a decision on the boundaries for the development was clearly in the mind of Mr Davies: who found that Area A had IOG and ALLI value. With regard to Area D, Mr Davies kept this outside the DDB and within the IOG and ALLI designations. His comments concerning the importance of Wyke Oliver Hill as gap land etc, were made in the context of the proposed boundary of the relief road running through Destiny Fields: as I have found (see Paragraph 13 above), the comments were not made with Area D specifically in mind.
74. Had this ground stood alone, I would not have allowed the claim.

Relief

75. However, for the reasons given above I shall grant the application.
76. In relation to relief, it is agreed between the parties that, if there was a breach of rules of natural justice, the designations for Areas A, B and D should be quashed. Given that the Inspector's decision with regard to the DDB involved a comparison of the objection site and the Louviers Road site - that was how the objection was put by the claimants and how it was contested by the Council - it seems to me inevitably to follow that the inclusion of the latter site within the DDB and the allocation of the Louviers Road site for housing under policy H1t must also be quashed, leaving both the objection site and the Louviers Road site as "white land", without designation. However, I am sensitive to the fact that those interested in that site have not been parties to, or played any part in these proceedings, and they should be given an opportunity to make representations in respect of the relief insofar as it directly affects the site in their ownership.
77. Therefore, I propose making the following order (the plan referred to being the plan attached to the Particulars of Claim):

(1) The Weymouth and Portland Local Plan Review adopted on 15 December 2005 be quashed in the following respects:

(i) the Defined Development Boundary shown on the Proposals Map shall be quashed insofar as it excludes Areas A, B and D: and insofar as it includes the Louviers Road site:

(ii) the Important Open Gap and Area of Local Landscape Importance shown on the Proposals Map shall be quashed insofar as it excludes Areas A, B and D: and

(iii) the allocation of the Louviers Road site for housing under policy H1t shall be quashed."

(2) Within 14 days a copy of this Order shall be sent by the Defendant Council to all persons with an interest in the Louviers Road site of which they are aware.

(3) Those persons are given permission to apply in respect of the relief granted in Paragraph (1) hereof, conditional upon any application being made with supporting written submissions by 4 pm on 31 August 2007. The Claimants and Defendants have permission to respond in the form of written submissions to be lodged and served within 14 days of receipt of the application. Any application is reserved to His Honour Judge Hickinbottom unless expressly released by him or Mr Justice Collins. Subject to further order, any application shall be dealt with in writing.

(4) The Defendants shall pay the Claimants' costs of the claim to be the subject of a detailed assessment on the standard basis if not agreed.

: