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 WC2A 2LL
		11 July 2007

1. MR JUSTICE SULLIVAN:

Introduction

2. In this application for judicial review the claimant challenges the decision of the defendant (then the First Secretary of State, now the Secretary of State for Communities and Local Government) not to call in for determination by the Secretary of State an application for planning permission made by the second and third interested parties to the first interested party ("the council"). The defendant's decision is contained in a decision letter dated 14 March 2006.
3. The planning application was submitted to the council on 5 July 2005. The application site is just over 78 hectares of agricultural land on the south eastern side of Banbury, bounded on the east by the Oxford Canal and to the north and west by Bankside Road and existing development on Oxford Road at Bodicote ("the Bankside site").
4. The application sought outline planning permission for 2,200 sq m. of employment development, residential development and associated facilities including primary school, playing fields, local shops, community facilities and public open space. The application was accompanied by an environmental statement. The environmental assessment in the environmental statement was based on the provision of 1,070 dwellings as the residential component of the development proposals.

Factual Background

5. The planning history of the site and the policy background is set out in considerable detail in the officers' report for the meeting of the council's North Area Planning Committee on 16 February 2006 ("the report"). In summary, the Statutory Development Plan comprises Regional Planning Guidance 9 for the south-east ("RPG9"), the adopted Oxford Structure Plan 2001-2016 ("the structure plan") and the adopted Cherwell Local Plan 1996-2001 ("the local plan"). The Bankside site is not allocated for development in the local plan. The Council had originally intended that the local plan would be replaced by the Cherwell Local Plan 1996-2011 ("the 2011 Local Plan").
6. In February 2001 the First Deposit Draft of the 2011 Local Plan was published. It included an allocation of 900 houses on the Bankside site. There was a substantial number of objections to the allocation of the Bankside site. Notwithstanding those objections, the site was included in the Revised Deposit Draft of the 2011 Local Plan when it was published in September 2002. Again there was a substantial number of objections to the allocation of the site, but it was retained as an allocation when the Pre-inquiry changes to the 2011 Local Plan were published in June 2004. What then happened is explained in paragraph 3.11.1 of the Report:

"However the decision was taken by the Council to discontinue work on the plan on the 13 December 2004 and withdraw it from the statutory local plan process as there was no realistic prospect of it being adopted prior to Government changes to the planning system coming into force that could prevent its subsequent adoption. The council has been working on the preparation of a Local Development Framework (LDF) since December 2004. However to avoid a policy void the Non-Statutory Cherwell Local Plan 2011 (NSCLP) was approved by the Council as interim planning policy for development control purposes on the 13 December 2004. Whilst the NSCLP had progressed through much of the local plan process but was withdrawn before the local plan inquiry. Therefore it does not carry the weight of an adopted local plan but as interim planning policy it is a material consideration in the consideration of the current application."

The Report went on to explain:

"Of particular relevance to the current proposal is Policy H10 which identifies the land for a sustainable urban extension. The policy is set out below; ..... "

7. The Officers recommended that planning permission should be granted, subject to a Section 106 agreement being entered into and to the application being referred to the defendant as a departure from the Development Plan. The Report recommended the following Summary Reasons for granting planning permission:

"The Council as local planning authority, has determined the application having had careful regard to the development plan and other material considerations. Although the site is not allocated for development in the adopted Cherwell Local Plan the Council considers the following material considerations sufficient to justify the granting of planning permission as a departure from the adopted plan policy. The site is identified for a sustainable urban extension in the non-statutory Cherwell Local Plan 2011, the need for the site to be developed to accord with the council's strategy for meeting the Structure Plan housing requirement, the timescale for production of an LDF to replace the adopted local plan, the provision of a sustainable mixed use development that minimises and mitigates landscape and other impacts has led the Council to consider the proposal acceptable. The proposal is in accordance with Oxfordshire Structure Plan Policy G1, G2 and G3."

8. After the Summary Reasons for granting permission there followed a lengthy (over 60 pages) section of the Report headed Consultation/Representations which set out in very considerable detail all of the very many objections (and a few statements of support/non-objection) to the proposal. There were numerous grounds of objection. Many of those objecting to the application included among their grounds a complaint that because the Council had resolved to discontinue work on the 2011 Local Plan, they had been deprived of an opportunity to object to the Bankside site through the Local Plan process. Thus, the Bodicote Parish Council said:

"At an early stage the application site was pushed as the best possible site without proper in-depth analysis of alternative sites. Statements have been made that to gain appropriate infrastructure and facilities this is the only feasible site, yet developers have told the parish other sites could work just as well but they have been denied the opportunity of putting forward alternative proposals.

.....

Throughout the consideration of the site Bodicote has had no proper representation because District Council representatives have had prejudicial interests and this is considered undemocratic. Concern is expressed over the handling of the consultation on the local plan and that even though the number of objections resulted in the abandonment of the plan that it is proposed to use it to guide planning policy. It is considered unlikely that there would be an inquiry and that CDC should send the application straight to GOSE with a request that it be called in and setting out why this is a special case."

9. The Cherwell Heights Housing Action Group ("CHHAG") said that the application should be refused for the following reasons:

" .....

2 The 55,000 objections to the Non-Statutory Cherwell Local Plan ("NSCLP") under which it would buy assessed.

3 The total lack of independent scrutiny of the process and the plans, particularly in the light of the dubious methods by which they became policy.

4 CDC's failure to properly assess the alternative sites ..... "

10. Adderbury Parish Council referred to -

"Loss of Democratic Process - the application is being considered because the District Council abandoned the Local Plan. Residents have therefore been denied the opportunity to object through a Local Plan Inquiry.

.....

Above all, the most compelling reason for refusing this application is to give back to local residents of Bodicote and Cherwell Heights the right to an independent hearing before a planning Inspector ..... "

11. The elected county councillor for the area, Mr Mitchell, said under the heading Loss of Democratic Process -

"1 This application is not in conformity with the last, properly adopted Local Plan. It is being considered because it is in the partly completed Local Plan that was abandoned before completion of all due process. The reasons appear to be:

i abject failure to deal adequately with the huge volume of objections

ii pressure from the Government Office for the south East to move to the 'reformed' Local Development Framework process in order to speed up the rate of development in the Cherwell District.

2 If the Local Plan process had been followed properly, it would have included a public hearing before an Inspector appointed by the Deputy Prime Minister. Bodicote Parish had prepared for this including Bodicote Parish Council precepting £10,000 on its council tax payers after a referendum approved this levy and for the express purpose of funding the necessary legal fees to appear at inquiry. Now finding the village of Bodicote denied its 'day in court'."

12. On behalf of certain other house builders, Smith Stuart Reynolds said, inter alia:

"2 Alternative Development Sites

..... it is acknowledged that the application is accompanied by an environmental statement which contains an indicative plan of 'Alternative Development Sites for Housing'. However this is based on the Council's consultation paper entitled 'Banbury 2011: Accommodating Necessary Development', published in 1999. Detailed representations were submitted to this document on behalf of Banner, Gleeson and Timms Homes who have interests in the land fronting Broughton Road. The advantages and opportunities having been previously made.

3 The assessment of the site's suitability.

My clients have objected to firstly the possible identification of the land off Bankside/Oxford Road and then its subsequent allocation in the draft local plan at every appropriate stage of the process. At the same time, they sought to engage fully in the precious and existing development plan systems and have sought to promote the suitability of their alternative proposal throughout this process, only to be thwarted by the Council's decision to abandon the final, and most important stages, of the local plan process. Consequently those who have sought to work within the system will be prejudiced unless this application is not only refused planning permission but refused, partly, on the grounds of prematurity in advance of the full and fair consideration of the suitability of alternative sites by an independent Inspector. This can only be realistically undertaken as part of the examination process in the emerging LDDs.

4 Prematurity Considerations

In objecting to the application on prematurity grounds, due consideration has been given to government advice on this matter as set out in paragraphs 17-19. Having done so, it is clear that the proposed development at Bodicote can only be regarded as 'so substantial' that granting permission would prejudice the preparation of the DPD by predetermining decision about the scale, location or phasing of new development which will need to be addressed therein."

13. The Report summarised the numerous objections made in the 1,449 letters of objection. Those objections included:

"24 I feel very strongly that the people of Bodicote should have a public inquiry into the whole matter.

.....

54 Such a development would be contrary to the wishes of local residents, particularly if the process of an independent planning inquiry is to be replaced by a government quango."

14. Further information was requested from the second and third interested parties by the Council. When it was received on 10 November 2005 the Council re-consulted on the application. Many of those who had previously objected took the opportunity to re-state and amplify their objections. Yet more information was provided by the second and third interested parties on 12 January 2006, and the Council undertook a second re-consultation. Yet again the objectors re-stated their cases. Thus the Bodicote Parish Council said:

"We have never had the opportunity of putting our case to an independent Inspector at a Public Inquiry, which would have been the case if the District Council had not run out of time. Thus there has been no independent consideration of the District Council's decision."

15. The County Council as Structure Plan authority supported the application in principle. The South East England Regional Assembly's observations included the following:

"1 The District Council should be confident that the application is not premature in the absence of an adopted local plan which allocates the site for development, and that there is sufficient evidence of the need to release the site having fully considered all alternative capacity on previously developed land, in line with policy Q1 of the Regional Spatial Strategy (RSS)."

16. Having set out the responses to the three consultation exercises, the Report described the application, the planning history and the Planning Policy background. At paragraph 3.9.1, the Report noted that a Consultation Paper on a new Planning Policy Statement 3 ("PPS3") was published on 6 December 2005. The Report stated:

"Although PPS3 is only a consultation draft at the present time it gives an indication of the current government approach to housing delivery but as a consultation document can only be accorded limited weight .....

..... the draft statement also contains the following advice that is pertinent [to] the current application:

When considering any applications for housing which are received in advance of the relevant development plan document being reviewed (particularly the first development plan document), local planning authorities should take into account the policies in this statement as material considerations, as they may carry greater weight than the relevant policies in the development plan. In these circumstances or for sites not allocated in the development plan, local planning authorities should consider favourably planning applications for housing development:

(a) where there is evidence of an imbalance between housing demand and supply, having regard to affordability issues and housing market conditions;

(b) if the site is suitable for housing development including land allocated or previously used of industrial or commercial use, which is no longer needed for that use; and

(c) the planning proposal makes an efficient use of land, offers a good housing mix, is of high quality design and does not have an unacceptable impact on the environment."

17. The Report then addressed the following topics: The Need for More Housing (chapter 4), Prematurity (chapter 5), Assessment of Alternative Sites (chapter 6), Extent of Compliance with NSCLP (chapter 7) and "Other issues raised by Objectors" (chapter 8) before drawing threads together in a number of conclusions in paragraphs 8.10.1-8.10.10.
18. Paragraph 4.6 summarised the position in respect of housing need as follows:

" ..... Since 1 April 2001, the start of the plan period of the adopted Oxfordshire Structure Plan 2016, total net completions have been 2055. This is 442 dwellings less than the annualised requirement of 2497. A total shortfall of some 505 dwellings is currently expected by 31 March 2016, the end of the Structure Plan period, and this will need to be addressed in the preparation of new Development Plan Documents. The development of 1070 dwellings at Bankside would enable part of this shortfall to be met on one of the Council's non-statutory allocations and would reduce the remaining shortfall to 385. The failure to deliver the dwellings at Bankside would result in a very significant shortfall in housing delivery equating to 1455 dwellings."

19. In view of the basis on which the defendant's decision not to call in the application is challenged, it is helpful to read the whole of chapter 5 dealing with prematurity and much of chapter 6 dealing with alternative sites:

"5 Prematurity

5.1 Advice and the statutory duty that planning decisions should be made in accordance with the development plan unless material considerations indicate otherwise is referred to above (see para 3.1.2). The Development Plan comprises the RPG9, adopted Structure Plan and adopted Local Plan. The Structure Plan has recently been adopted and sets out the number of new dwellings that need to be accommodated within the District and the Banbury area. Local plans normally contain site specific policies to accommodate the growth required by the Structure Plan. However the adopted Local Plan dates back to 1996 and covers the period to 2001 and therefore does not address the whole of the current Structure Plan housing requirement. The adopted Local Plan was to be replaced but due to the changes in the planning system the replacement plan as described above on para 3.10, now known as the Non Statutory Cherwell Local Plan (NSCLP), was withdrawn from the statutory plan process. NSClP contains proposals that would meet the Structure Plan housing requirement to 2011 but does not form part of the development plan. The adopted statutory Cherwell Local Plan 2001 will therefore be replaced by the LDF in due course.

5.2 The document The Planning System: General Principles published in 2005 by the Office of the Deputy Prime Minister (ODPM) advises:

17 In some circumstances, it may be justifiable to refuse planning permission on grounds of prematurity where a DPD is being prepared or is under review, but it is not yet adopted. This may be appropriate where the proposed development is so substantial, or where the cumulative effect would be so significant, that granting permission could prejudice the DPD by predetermining decisions about the scale, location and phasing of new development which are being addressed in the policy of the DPD. A proposal for development which has an impact on only a small area would rarely come into this category. Where there is a phasing policy, it may be necessary to refuse planning permission on grounds of prematurity if the policy is to have an effect.

18 Otherwise, refusal of planning permission on grounds of prematurity will not usually be justified. Planning applications should continue to be considered in the light of current policies. However account can be taken of policies in emerging DPDs. The weight to be attached to such policies depends on the stage of preparation or review, increasing as successive stages are reached. For example:

1 Where a DPD is at early consultation stage, with no early prospect of submission for examination, then refusal on grounds of prematurity would seldom be justified because of the delay which this would impose in determining the future use of the land in question.

2 Where a DPD has been submitted for examination but no representations have been made in respect of relevant polices, then considerable weight may be attached to those policies because of the strong possibility that they will be adopted. The converse may apply if there have been representations which oppose the policy. However much will depend on the nature of those representations and whether there are representations in support of particular policies.

19 Where planning permission is refused on the grounds of prematurity, the planning authority will need to demonstrate clearly how the grant of permission for the development concerned would prejudice the outcome of the DPD process.

(paras 17, 18 and 19)

5.3 The guidance set out above suggest that where a proposed development 'is so substantial, that granting permission could prejudice the DPD by predetermining decisions about the scale, location and phasing of new development which are being addressed in the policy of the DPD' that it might be justified to refuse permission on grounds of prematurity. The current application has attracted a lot of objections and a number have raised the issue of prematurity given the current position on the LDF. The current application is for a large new development, the scale of which reflects only part of the adopted Structure Plan's existing housing requirement and therefore in terms of scale it is not considered premature. The location, on a greenfield site, has been shown to be necessary through the work done on the Urban Housing potential study wich has demonstrated that there is not sufficient land available in the urban areas to meet the Structure Plan housing requirement and the Council's assessment, by virtue of the NSCLP, is that the location of the application site is suitable. The monitoring of housing delivery within the District has shown that delivery of new housing has been [below] Structure Plan annualised targets and therefore the present application is not considered to adversely affect phasing of development within the District. However there is no doubt that the Banbury site allocations DPD will define the location and phasing of development in the future and, if the present application had not come forward the DPD could have included consideration of development on the application site. However it is necessary to consider at what stage the LDF has reached before concluding that refusal is justified on grounds of prematurity.

5.4 Work on the LDF has commenced with the preparation of the Core Strategy. Evidence gathering for the Banbury site allocation DPD has also commenced but no proposals have yet emerged. The adoption of the Banbury site allocations DPD is programmed for adoption in 2008. Paragraph 18 of The Planning System: General Principles indicates that in those circumstances refusal on grounds of prematurity would seldom be justified.

5.5 Monitoring of the adopted Local Plan and housing delivery has identified a shortfall on housing delivery. With the adoption of the Core Strategy and Banbury allocations DPD not programmed until 2008 there has been a need for the Council to look at how housing delivery can be managed in the interim. Set out above are the details of the measures that are being taken to address the problems of housing delivery. This includes the resolution to adopt the NSCLP for development control purposes and work with developers to bring forward the identified sites. The need for more housing is a material consideration and the delay in providing more housing that would result from waiting for the adoption of the DPD would be significant. The consultation draft of PPS 3 reflects the advice set out above. The refusal of the application on grounds of prematurity is not therefore considered justified.

6 Assessment of Alternative Sites

6.1 The preparation of the non statutory Cherwell Local Plan 2011 included the consideration of different directions of growth for Banbury and the various sites for housing. The first step was the production of a paper, entitled 'Banbury 2011 Accommodating Necessary Development' produced in 1999 for public consultation. This document looked at brownfield sites, windfalls and greenfield sites as potential locations for further housing, including the location of the current application site and land south west, west, north west and north east of Banbury as potential locations for further greenfield housing. Only two areas were suggested as unsuitable for consideration, land to the east of the M40 motorway due to the impact on the rural character of the area and its remoteness from existing facilities and land east of the Oxford Canal and south of Grimbury which includes land liable to flooding, identified as ecologically important, affected by the existing sewage treatment works and development would impact on the Cherwell Valley.

6.2 The outcome of the consultation was considered by the Council's Development Committee on 1 December 1999 when it was concluded that the current application location would be the site incorporated in the emerging plan. This was reconsidered by the Development Committee on 13 December 2000 when it was again accepted as the preferred location for the required development .....

6.3 Other locations were not pursued and the following reasons were included for discarding locations:

South of Salt Way (Bloxham Road)

1 Linkages with the rest of the town are poor

2 It would put pressure on existing features ie Salt Way, County Wildlife Site, Wykham Park

3 Would not make a positive contribution.

Western Edge (Broughton Road)

1 Difficult to create a critical mass.

2 Does not relate to the rest of the urban area.

3 Threatens the value of Crouch Hill, a local landmark.

North West (Warwick Road)

1 Linkages to the rest of the urban area are poor.

2 Areas would be too small to accommodate all the required growth and split by roads.

North (Southern Road)

1 Relationship with existing employment uses.

2 Existing features affected ie historic buildings and archaeology

3 Any development on the rising ground would be very prominent.

4 The site is remote from other residential areas and therefore social integration could be difficult.

6.4 Following the consultation the deposit draft Cherwell Local 2011 (February 2001) was produced and consultation again carried out. The plan identified land the subject of the current application for an urban extension to accommodate 950 dwellings. A considerable number of objections were received to the proposal and these were considered by the Council's Executive on the 1 October 2001 when the decision was taken to retain the allocation of land the subject of the current application and reject alternatives put forward.

6.5 A second deposit draft Cherwell Local Plan 2011 was published in September 2002 and subject to a further period of consultation. The responses to this were considered by the Council's Executive in March 2004 and it was resolved to maintain the allocation of the application site for development. Pre Inquiry Changes were subsequently produced in July 2004 and subject again to consultation. The representations received as a result of the pre inquiry changes were considered on the 6 December 2004 and again the allocation was retained.

6.6 Throughout the Local Plan making process there has been extensive consultation and consideration of the issues associated with the most appropriate direction for Banbury to grow. The details of the consideration of the issues raised and the responses can be seen in the Committee reports referred to above. The Council has continued to consider that the application site includes land that is the most appropriate location for housing development to meet the Structure Plan requirements.

6.7 Consultation responses have indicated that two applications can be anticipated for large greenfield sites on the edge of the existing built up limits of Banbury. These are a site to the north west of the town off Warwick Road (approx 500 dwellings) and land to the west of the town off Broughton Road (approx 400 dwellings). An application was also submitted for land to the south of Bodicote, west of the Oxford Road (approx 85 dwellings) which has been refused. None of these sites are allocated in the adopted Local Plan or supported by the NSCLP. They are also not of sufficient size individually to deliver the comprehensive scheme with the range of uses on site proposed by the current application. Applications have not been received to date but if they are received in the future they will be assessed on their merits."

20. The first of the "Other Issues raised by Objectors" dealt with in chapter 8 was -

"8.1 The Opportunity to be heard before an Independent Inspector.

8.1.1 Representations have highlighted the strong feeling held locally that with the withdrawal of the NSCLP local people have lost their opportunity for their arguments and concerns relating to the proposed development to be heard by an inspector who was independent of the Council. The current application is a departure from the adopted Development Plan and therefore if the Council were to resolve to approve it, notification is required to the Secretary of State via the Government Office for the South East (GOSE).

The Secretary of State then has the opportunity to review the proposal and consider whether he wishes to call in the application for his own determination and to hold a public inquiry into the proposal. If the Council refused the application the applicants would have the opportunity to appeal and they or the Council could request that the appeal was heard at a public inquiry.

8.1.2 The concern relating to the absence of the public inquiry is related to the process by which the application is decided and the opportunities that local people have to influence the decision. Prior to application being submitted a consultation event, run by staff of Oxford Brookes University, was held in March 2005 with invited consultees including community representatives. Through the planning application itself consultation has been undertaken in line with this Council's current practice which provides for the advertising of the application in the local press, site notices and individual letters of notification advising people of where details can be viewed and seeking written response to the proposals. All those who made representations regarding the site in respect of the NSCLP were notified of the application by letter. The application proposals have also been put on the Council's website. The consultation was repeated on receipt of both the Further Information documents. Many people have taken the opportunity to write in and the issues raised in their letters are summarised above and have been carefully considered. A copy of all the representations has been placed in the Members' Room. The issues raised are therefore set out for Members of this Committee to consider in reaching their decision on the application, as is the case with all planning applications the Committee considers. The letters received in respect of the application will also be sent to the Secretary of State, with the information required by departure procedures, for his consideration in determining whether or not to call in the application for his own determination."

21. Other issues dealt with in chapter 8 included a particular concern that had been expressed by very many objectors - "coalescence with Bodicote".
22. Members accepted the Officers' recommendation and resolved to grant planning permission subject to a Section 106 agreement and to referring the application to the defendant as a departure from the Development Plan. On 17 February 2006 the Council referred the application to the defendant providing him with the following information in accordance with the Departures Direction:

"1 Copy of the application, including plans and certificate of ownership.

2 Copy of the requisite notice.

3 Copy of representations made to the authority.

4 Copy of officer's report to relevant Planning Committee incorporating a statement of the material considerations involved.

5 Copies of any statement of views by government department, other planning authority or parish council."

23. On 27 February 2006, the Pegasus Planning Group wrote to the defendant on behalf of the claimant requesting that the application should be called in. In a lengthy letter, Pegasus Planning Group said, inter alia:

"On behalf of my client Persimmon Homes, I wish to object to this development proposal and request that the application is called in for consideration by the Secretary of State. I set out the grounds for this view below. Persimmon Homes are currently in the process of preparing an application for residential development on land at Warwick Road, Banbury.

There are a number of grounds for objection to this application in relation to current policy, land use aspects and also in respect of deficiencies within the application itself. I cover these aspects broadly below. Given the nature of this application, and the fact that it is a very significant departure from the development plan, the impact of the proposals on a very wide area, and, that there will be at least one other application submitted in the local area to meet the housing requirements of Banbury, it is in my view inconceivable that this application will not be called in for determination by the First Secretary of State."

24. Under the heading "The Adopted Development Plan", the letter pointed out in bold type:

"The application site is not identified as an allocated site to meet these requirements ..... "

of RPG 9 and the Adopted Structure Plan. Under the heading the Non Statutory Local Plan, Pegasus said:

"The Local Authority were pursuing a replacement Cherwell Local Plan, but this has now been abandoned. The Authority now regard this document, which has been subject to major objection and has not undergone an inquiry, as a non statutory Local Plan. The Bankside site is 'allocated' for development in this plan but this site has through its size and location, very serious repercussions in respect of overall strategic planning and housing delivery objectives for Banbury itself and is a site which has little public support and indeed has been subject to a very significant level of objection by way of representations to the Plan.

The plan, in accordance with government policy, is of very little weight because firstly, of the very many objections to the plan and to Bankside specifically, and, secondly, proposals for alternative sites have not been considered at inquiry.

Whilst, therefore, there is a need for housing land to be identified to meet the needs of Banbury, there is no policy support for this particular site to be developed within the Development Plan.

In the absence of specific policy support for the release of this site, this application is therefore premature, because there is a need to consider the opportunity of alternative sites in bringing forward the necessary housing, within the policy time frame."

25. Under the heading "Alternatives", Pegasus said:

"Indeed the objections to the now abandoned local plan, clearly indicate that there are other sites which can meet the requirements for housing development within Banbury, and can be released as alternatives to this site at this time.

The public and indeed my clients have, through the abandonment of the local plan, been denied a proper opportunity to present the case for an alternative to Bankside and for this matter to be considered by an independent Inspector. The Bankside application is therefore coming forward as an application in isolation. The only way therefore for this consideration to be undertaken now is by way of an application on my client's site. It would then be inequitable for the Bankside application to be granted now without further independent consideration of the alternatives that are available and which are likely to ensure that housing needs for the district can be met. A failure to consider alternatives is likely to lead to significant shortfalls in dwelling provision in the short to medium term in the district.

As stated above, my clients Persimmon Homes are in the process of preparing an application on land to the north of Banbury off Warwick Road. In the light of this proposed application and in the light of the lack of specific site specific policy support for the Bankside proposal in the development plan, it would be premature to reach a decision on the Bankside application until full consideration is given to alternative proposals."

26. Pegasus then set out its view of the land use aspects of the Bankside proposal. Under the heading "Prematurity", it said:

"In terms of current government advice on this aspect it is set out in the companion document to PPS1 the Planning System General Principles, published in 2005. This considers prematurity in paragraphs 17-19. The DPD is now being prepared and the development proposed is so substantial that it would predetermine decisions on scale, location or phasing or new development which will be addressed. In particular the development of just this site, and without proper consideration of the alternatives, would severely restrict the amount of housing that will come forward in order to meet strategic housing requirements for the area."

27. The material parts of the defendant's decision letter dated 14 March 2006 are as follows:

"2 As you know, our general approach is not to interfere with the jurisdiction of local planning authorities unless it is necessary to do so. Parliament has entrusted them with responsibility for day-to-day planning control in their areas. Local planning authorities are normally best placed to make decisions relating to their areas and it is right that, in general, they should be free to carry out their duties responsibly, with the minimum of interference.

3 There will be occasions, however, when the Secretary of State may consider it necessary to call in a planning application to determine himself instead of leaving it to the local planning authority. His policy is to be very selective about calling in planning applications. He will, in general, only take this step if planning issues of more than local importance are involved and if those issues need to be decided by the Secretary of State rather than at a local level. Each case is, however, considered on its own matters.

4 We have carefully considered all the matters raised about this application. Bearing in mind that the issue before him for decision is not whether the application should be granted planning permission but whether or not he should call it in for his own determination. The Secretary of State considers that the main matters relevant to his decision are the development plan for the area (that is, Regional Spatial Strategy 2001, the Oxfordshire Structure Plan 2016 and the Cherwell Local Plan 1996) and his policies regarding Housing (PPG3); Industrial and Commercial Development and Small Firms (PPG4); Sustainable Development in Rural Areas (PPS7); Transport (PPG13); and Development and Flood Risk (PPG25).

5 In considering the application, the Secretary of State has paid particular regard to the promotion of housing, including affordable housing, and making efficient use of land, the development of residential, retail, community, office and leisure uses that will be accessible by public transport, walking and cycling, while also considering the impact of flood risk and the need to strictly control new building development away from existing settlements.

6 Although generating opposition locally, it has not given rise to national controversy, or substantial regional controversy. Having considered carefully these and other relevant planning issues raised by this proposal, and having regard to his call in policy, the Secretary of State has concluded that there is not sufficient conflict in this case with national policies on the above matters, or other sufficient reason, to warrant calling in the application for his own determination. Therefore the decision as to whether to grant planning permission will remain with Cherwell District Council."

28. Before turning to the claimant's grounds of challenge, it is helpful to set out the defendant's call-in policy which has remained unchanged since it was set out by the then Minister for Planning in June 1999. Part of the then Minister's statement is reproduced in paragraph 26 of "The Planing System: General Principles, the Accompanying Document to PPS1" ("the General Principles"). The criteria for calling in applications for determination by the Secretary of State are as follows:

"The policy is to be very selective about calling in planning applications. The Secretary of State will, in general, only take this step if planning issues of more than local importance are involved. Such cases may include, for example, those which, in his opinion,

• may conflict with national policies on important matters;

• could have significant effects beyond their immediate locality;

• give rise to substantial regional or national controversy;

• raise significant architectural or urban design issues; or

• may involve the interests of national security, or of foreign Governments.

However each case will continue to be considered on its individual merits."

The Grounds of Challenge

29. The claimant submits that the defendant's decision not to call in the Bankside application is unlawful on three grounds:

(1) The defendant failed to have regard to material considerations, namely (a) national policy on community involvement, (b) national policy on prematurity, and (c) the impact of the consequences of his decision not to call in the Bankside application on alternative sites;

(2) The defendant took into consideration immaterial factors, namely the planning merits of the Bankside application;

(3) The defendant's decision was Wednesbury perverse or irrational.

Ground 2

30. I can deal quite shortly with ground 2. In his submissions on behalf of the claimant, Mr Kingston QC relied on the decision of the House of Session (2nd Division) in Lakin Ltd v Secretary of State for Scotland (1988) SLT 780. In that case there were two rival superstore proposals. The petitioner's proposal at Corbiewood had been refused planning permission and was the subject of an appeal to the Secretary of State. The Central Regional Council had resolved to grant planning permission for a rival superstore proposal at Broadleys Farm. Because the latter proposal was a departure from the Development Plan it was referred to the Secretary of State who declined to call in the application. On the petitioner's application for judicial review of that decision evidence was filed on behalf of the Secretary of State by Mr Graham, the head of the Planning Division of the Scottish Development Department.
31. In his judgment the Lord Justice-Clerk, Lord Ross, with whom Lords Dunpark and Mayfield agreed, considered Mr Graham's affidavit in some detail and said:

" ..... the earlier paragraphs of the affidavit are entirely consistent with the first respondent's having applied his mind to the national issues involved. However it is quite clear from the later paragraphs of the affidavit that the first respondent in fact considered much more than merely the national issues involved. In paragraph 5 it is stated that the first respondent gave consideration to the information which was available to him as to whether a better alternative site might be available for a development of the proposed nature. Reference is then made to various documents which were before him dealing with the comparative merits of the two sites. In paragraph 6 it is stated that the first respondent considered all this information in reaching his decision about Broadleys because the first respondent had to consider the merits of the proposed location with some care. It is also stated that the first respondent was aware inter alia of the fact that the granting of approval for the Broadleys proposal by the regional council which is likely to follow the first respondent's decision not to call in the application would affect other comparable proposals including Corbiewood. In paragraph 8 the point is made that like the second respondents the first respondent was obliged to consider the Broadleys Farm case 'on its planning merits'.

Having regard to what Mr Graham says in these later paragraphs of his affidavit, I am clearly of opinion that the procedure which the first respondent adopted in deciding not to call in the Broadleys Farm applications involved unfairness; there was unfairness in the manner in which he arrived at his decision. Indeed it appears to me that the approach described by Mr Graham is misconceived. What the first respondent required to decide was whether to call in the applications under s. 32 [Section 77 of the 1990 Act] and not how the applications should be determined. On reading the affidavit, it is plain that what was being done was determining the merits of the Broadleys Farm applications. There are, in the affidavit, repeated references to 'the merits' of the applications. In my opinion it was no part of the first respondent's duty at this stage to consider the merits of the applications at all. What he ought to have been considering was whether the applications should be called in by him so that he could then proceed to determine the merits of the applications. When considering whether to call in the applications, the first respondent should not have been considering the merits of the applications at all. The fact that the first respondent approached the question of calling in the applications in the wrong manner, in my opinion, amounts to procedural ..... unfairness. This is particularly so in the present case where the first respondent deliberately considered the question of whether a better alternative site might be available for the proposed development in the knowledge that he had pending an appeal at the instance of the petitioners which raised this very issue of alternative sites ..... "

32. Mr Kingston submitted that it was plain from paragraph 5 of the decision letter that the defendant had fallen into the trap of considering the planning merits of the Bankside proposal. He appeared to have carried out a balancing exercise, paying "particular regard" to the perceived merits of the proposal in the first part of paragraph 5, "while also considering", on the other side of the balance, some of the potential disadvantages in the latter part of that paragraph. Mr Kingston emphasised the repeated view of Lord Ross that the Secretary of State "should not have been considering the merits of the applications at all" (my emphasis). That was what the Secretary of State had done in paragraph 5 of the decision letter.
33. I do not accept that submission. The words of the Lord Justice-Clerk must be considered in the factual context of the case with which he was concerned. When Lord Ross said that it was no part of the Secretary of State's duty to consider "the planning merits", he was referring to the fact that what the Secretary of State had done in that case was to determine the merits of the Broadleys Farm application, including the question of whether there might be a better alternative site (Corbiewood) for the proposed superstore development.
34. The proposition that the Secretary of State "should not have been considering the merits of the application at all" should not be taken out of context and applied literally to the very different factual circumstances of the present case. When considering whether or not to call in an application for planning permission that has been referred to him (now her) under the Departures Direction, the Secretary of State must be entitled to carry out a preliminary assessment of what appear, on the papers submitted by the Local Planning Authority, to be the "planning merits" of the application to the extent that it is necessary to do so in order to enable a judgment to be made as to whether, for example, there may be a conflict with national policy and, if so, whether that conflict appears to be on "important matters", and whether in any event the application raises issues that are of more than local importance.
35. That is precisely what the defendant did in the present case. In paragraph 4 he reminded himself that "the issue before him for decision is not whether the application should be granted planning permission but whether or not he should call it in for his own determination".
36. In saying that the issue was not whether the application should be granted planning permission, the defendant was expressly reminding himself that he should not consider "the planning merits" for the purpose of deciding how the application should be determined, but should simply consider the question: who should determine the application on the planning merits, the Secretary of State or the Local Planning Authority? It is wholly unrealistic to suppose that, having expressly drawn that distinction in paragraph 4 of the decision letter, the defendant then overlooked it in the following paragraph, and thought that it was appropriate to embark on a balancing exercise weighing some of the advantages of the application against some of the disadvantages.
37. Having identified certain Government policies, for example, PPG3 in respect of housing and PPG13 in respect of transport, as being among "the main matters" relevant to the decision in paragraph 4 of the decision letter, all that the defendant was doing in paragraph 5 of the decision letter was to identify those aspects of those central government policies in respect of, for example, housing and transport to which he had paid "particular regard" in deciding whether or not the application should be called in. Since there are very many policies in the PPGs listed in paragraph 4 of the decision letter it was entirely reasonable for the defendant to identify, for example, the policy within PPG13 (accessibility by public transport, walking and cycling) to which he had paid particular regard.
38. I accept Mr Brown's submission on behalf of the defendant that in any event it is not right to characterise the two parts of paragraph 5, divided by the words "while also considering" as representing the two sides of a balancing exercise, with the advantages identified in the former and the disadvantages identified in the latter part of the paragraph. There was no objection to the Bankside development on the basis that it was "away from existing settlements". Rather the reverse was being forcefully argued by very many objectors: that it would cause the coalescence of Banbury with Bodicote. While many local objectors had expressed concerns about flooding, the Report made it clear that there was no objection on flooding grounds from the responsible authorities, namely the Environment Agency and the Council's Chief Engineer. Paragraph 5 is not an attempt to weigh advantages and disadvantages. It merely summarises the positive aspirations of certain national policies and the negative injunctions contained in other national policies; what the policies seek to provide and what they seek to avoid respectively.
39. I will deal with the "alternative sites" submission in more detail when considering ground 1 below. At this stage it is sufficient to note that, unlike the position in Lakin where the Secretary of State had compared the merits of two rival sites when deciding whether or not to call in the application for one of them, there is no suggestion in this decision letter that the defendant was embarking upon a comparison of the merits of alternative sites. At the time when the decision letter was written the claimant had not made a planning application for its site to the north of Banbury at Warwick Road. That application, for residential development up to a maximum of 400 dwellings, was not submitted to the council until 8 August 2006. On 3 November 2006 it was refused. The claimant appealed to the Secretary of State and an inquiry is due to be heard on 24 July 2007. However as at the date of the defendant's decision not to call in the Bankside application there was no "rival site", so the defendant could not have compared the merits of the two sites even if it had been appropriate for him to do so at that stage. For these reasons I reject ground 2 of the challenge.

Ground 1

40. Although the decision letter was challenged on the basis that the defendant failed to have regard to the three matters referred to above - national policy on community involvement and prematurity and the impact of the decision on alternative sites - I accept the defendant's submission, which was adopted by all the interested parties, that it is unrealistic to suppose that the defendant did not have regard to all of the matters mentioned in the Report and in the letter from Pegasus Planning Group before reaching his decision. The Secretary of State is not required to give reasons for a decision to call in, or not to call in, an application under Section 77 of the 1990 Act.
41. I readily accept Mr Kingston's submission, with which the defendant and the interested parties did not disagree, that if the Secretary of State chooses to give reasons, those reasons can be examined to see if they disclose any error of law, as in Lakin (see above). However where, as in the present case, the Secretary of State has identified what he considers to be "the main matters relevant to his decision", there is no reason to suppose that those were the only matters which he considered and that because other matters are not referred to in the decision letter they must therefore have been ignored. A call-in decision letter is addressed to the Local Planning Authority and its sole purpose is to tell the Local Planning Authority whether the Secretary of State has decided, exceptionally, to determine the application himself. Unlike an inspector's or Secretary of State's decision letter after an inquiry, it is not a reasoned decision letter which must deal adequately with the principal issues in dispute between the parties at an inquiry.
42. Responding to a submission that because certain criteria had not been referred to in a decision letter declining to call in an application, they had not been considered, in R v Secretary for the Environment ex p Middlesbrough Borough Council [1988] 3 PLR 52 at 55, Mr Justice Farquharson said:

" ..... it would seem to me an impossible jump to say that because there is no particular reference to the criteria, therefore there is evidence to show that he must have ignored them. In fact it is the sole criterion that he put forward, even though he gave examples of its application, namely, those which have involved planning issues of more than local importance. It seems quite inconceivable that the Secretary of State could have ignored that particular matter."

In that case there were two sets of directions but the decision letter mentioned only one of them.

43. In response to a submission that the second direction, in respect of shopping floor space, had been ignored, Mr Justice Farquharson said at page 56:

"Once again I cannot find it possible to come to a conclusion other than that the Secretary of State must have had regard to the shopping area. It was the whole point of the contest in this matter. It was the subject of the complaints made by the applicants, the subject of the inquiry they commissioned, a copy of which they sent to the Secretary of State, and the subject of all the other correspondence they had and the meetings they had with the second respondent.

Bearing all those matters in mind, and noting once again that the second respondent specifically referred to the direction when referring the matter to the Secretary of State, I have come to the conclusion that there can be no possibility of this application ever succeeding by way of motion, and for those reasons I am compelled to refuse it."

44. In similar vein, in R v Secretary of State for the Environment ex p Newcroft [1983] JPL 386, Mr Justice Forbes is reported as having said:

"Where, as in this case, there was no duty to give reasons, it could not be said that a letter which singled out perhaps the main reason which affected the Secretary of State's decision could be challenged on the ground that that was the only reason which the Secretary of State had for exercising his discretion. It was a very different thing when there was, as there was in the Inquiries Procedure Rules, a requirement that reasons had to be given. That meant proper reasons had to be given which had to grapple with the points which were raised. Nothing of that kind was appropriate in a case where somebody was not bound statutorily to give reasons. Of course if he gave a reason and it was quite clearly a wrong one, it may be that the court could interfere on the ground that he had misdirected himself in law.

Even if it was necessary for the court to examine the circumstances to see whether or not he had, in the exercise of his discretion, failed to follow the Wednesbury principles in their entirety, it was not necessary to construe with analytical precision in a letter expressing his decision." (pages 387 to 388).

45. More recently, in R (Adlard) v Secretary of State for the Environment, Transport and the Regions [2002] 1 WLR 2515, [2002] EWCA Civ 735, the Court of Appeal had to decide whether the Secretary of State had considered whether exceptionally to call in an application so as to accord the objectors an oral hearing. The Court of Appeal concluded that the Secretary of State was not required to consider departing from his policy so as to enable third parties to put their objections at a public inquiry but could do so if he wished (see paragraphs 39 to 41).
46. On the question whether he had, in any event, considered that issue, Lord Justice Auld said at paragraph 42:

"42 Mr McCracken [who appeared for the claimant] submits not, urging that it would be wrong to conclude that he did since he refused to given any proper reasons for declining to call the application in. I recognise that certain of the phrases used in the Secretary of State's letters of 28 March and 25 April 2001 - 'each case is considered on its individual merits', 'after very careful consideration', and the like - appear somewhat standardised (appear, indeed, to have been used in similar letters sent in the earlier cases which establish that reasons - beyond those implicit in saying that the case does not fall within the Secretary of State's policy for calling in applications - are not required for such decisions). There nevertheless seems to me no sufficient reason here for declining to take at face value the Secretary of State's assertion, at the end of his letter of 25 April 2001, that he had given careful consideration to 'all the relevant information before him, including [Mr Buxton's] representations of 15 March', representations which expressly contended that the objectors were entitled to 'a hearing in relation to departure from the development plan, which had been subject to inquiry'.

43 Even, therefore, were I to conclude that the Secretary of State was bound to consider calling in the application, specifically so as to accord the appellants an oral hearing of their objections, I would hold that on the evidence before the court that in fact he did so."

47. Looking at this decision letter, there is no reason to disbelieve the defendant when he said at paragraph 4:

"We have carefully considered all the matters raised about this application."

Since the defendant had been sent the Report among the documents supplied by the council and had received the letter from the Pegasus Planning Group, there is no reason to suppose that the matters raised in those documents were ignored and that when the defendant referred to the "main matters" relevant to his decision he meant "the only matters". The view that the defendant meant what he said is reinforced by the subsequent references in paragraph 6 of the decision letter:

"Having considered carefully these (ie. the main issues mentioned in paragraphs 4 and 5) and other relevant planning issues raised by this proposal ..... the Secretary of State has concluded that there is not sufficient conflict in this case with national policies on the above matters or other sufficient reason to warrant calling in the application for his own determination." (emphasis added).

48. I have cited extensively from the Report because it demonstrates the extent to which any reader of the Report, even without the assistance of the letter from the Pegasus Planning Group, would have been very well aware of the three matters which the claimant contends the defendant failed to take into consideration when reaching his decision. Standing back from the detail for a moment, it is not in the least surprising that the General Principles in PPS1, which apply across the board to all applications, do not receive a specific mention in paragraph 4 of the decision letter and that the decision letter concentrates on those Government policy statements which specifically relate to the particular types of development - housing and commercial - proposed in this particular application.
49. The real question therefore is not whether the defendant failed to take the three matters referred to in the claimant's ground 1 into account but whether, having considered those matters and very many others as well, he was reasonably entitled to conclude that they were not among "the main matters" that were relevant for his consideration. The discretion conferred by Section 77 is very broad indeed (see, for example, R v Secretary of State for the Environment, Transport and the Regions ex p Carter Commercial Developments Ltd [1999] 1 PLR 1 at 6). Within that very broad discretion it is pre-eminently a matter of planning judgment for the Secretary of State as to which, among what may well be a mass of relevant considerations, are "the main matters" relevant for his consideration.
50. Undaunted, Mr Kingston sought to persuade me that any reasonable Secretary of State would have concluded that the three matters identified in ground 1 were "main matters". I do not accept that submission. Far from it being unreasonable for the defendant to conclude that those three matters were not "main matters", it is readily understandable why, on the facts of this particular case, the defendant concluded that they were not. Although Mr Kingston put the national policy on Community Involvement in paragraphs 40 to 44 of PPS1 at the forefront of his submissions, it is difficult to see what, in reality, this adds to the prematurity point. Paragraphs 40 to 44 of PPS1 were not specifically referred to in the letter from Pegasus Planning although that letter did say:

"The public and indeed my clients have, through the abandonment of the local plan, been denied a proper opportunity to present the case for an alternative to Bankside and for this matter to be considered by an independent Inspector."

51. Mr Kingston accepted that the policies in PPS1 did not confer upon objectors to a development proposal a right to be heard before an inspector at a public inquiry. He confirmed that it was not his case that the defendant was required to consider, as one of the "main issues", whether the many objectors to the Bankside proposal should be given such a right (see Adlard above). Rather he submitted that in a system where the Development Plan was of primary importance, it was envisaged that those making representations as part of the exercise of community involvement would, at some stage, have their concerns considered by an independent person: the Local Plan Inspector under the old Local Plan system; or the inspector examining the Local Development Framework under the new Development Plan system.
52. I accept Mr Brown's submission that the paragraphs in PPS1 now relied on by the claimant, which they did not specifically draw to the defendant's attention, are principally concerned, not with the opportunity to have one's objections heard or considered by an independent inspector, but with community involvement at a much earlier stage in the evolution of the policies in the Local Development Plan. In substance, the "community involvement" point is merely another way of expressing the "prematurity" complaint, namely that the Bankside proposal is so substantial that it should be considered as part of the Development Plan process, which would give all objectors and those concerned to promote alternative sites, an opportunity to have their representations considered by an independent inspector. All of these issues were fully considered in the Report (see the extracts set out above).
53. The extent to which there had been consultation on the 2011 Local Plan, the fact that progress had been cut short, thus depriving the many objectors of an opportunity to appear at a Local Plan inquiry, the consequence that residential development on the Bankside site was not in accordance with the statutory Development Plan, and the implications of granting planning permission now for the emerging Local Development Plan were all considered in considerable detail.
54. In reality, the complaint that there was no community involvement boils down to a complaint that there was no opportunity to present objections to an independent inspector whether at a public inquiry or as part of the examination of the Local Development Plan framework. It is clear that in terms of community involvement there was ample opportunity for those who wished to make representations about the proposals to do so on many occasions. The true complaint is not that there has not been community involvement but that that involvement has not led to an outcome which the objectors would wish, and that they did not have an opportunity to argue for that outcome before an independent inspector.
55. Mr Kingston criticised the advice given to members in relation to prematurity in chapter 5 of the Report. He submitted that in paragraphs 5.3 to 5.5 the officers had conflated national policy advice in paragraphs 17 and 18 of the General Principles which are set out in paragraph 5.2 of the Report.
56. As I understood the submission, it is that in deciding whether an application for planning permission should be refused, at least on prematurity grounds, it was only necessary for the council to decide whether the application pre-determined decisions about the scale, location or phasing of new development which were being addressed in the DPD. The word "otherwise" at the start of paragraph 18 made it clear, in Mr Kingston's submission, that if one so concluded that an application did predetermine decisions about scale, location or phasing then it was either unnecessary and/or inappropriate to consider the stage reached by the DPD.
57. I reject that submission which defies common sense. The introductory word "otherwise" in paragraph 18 makes it clear that a refusal of planning permission on prematurity grounds will not usually be justified unless it falls within paragraph 17, ie, unless the proposed development is so substantial that granting permission for it would predetermine the scale, location or phasing of development which is being addressed in the DPD. If planning permission is not to be refused on prematurity grounds, it will usually be unnecessary to consider the stage reached by the DPD. On the other hand, if consideration is being given to refusing planning permission on prematurity grounds (because the proposal falls within the description set out in paragraph 17) then it will be necessary to consider how much delay would be caused by waiting for the issues of scale, location and phasing to be resolved through the DPD process. Hence the advice in paragraph 18 that:

"Where a DPD is at the consultation stage, with no early prospect of submission for examination, then refusal on grounds of prematurity grounds would seldom be justified because of the delay which this would impose in determining the future use of the land in question."

58. Paragraph 5.3 in the Report noted that the scale of the residential development to be accommodated at Banbury in 2016 had been effectively predetermined by the Structure Plan, so the application was not premature in terms of scale. In terms of location, there was no dispute that a greenfield site would be required because the council's studies had demonstrated that there was insufficient land within the urban area. In respect of phasing, at the time of the report delivery of new housing had been below the Structure Plan's annualised targets (the position subsequently improved) so in terms of overall phasing the proposal was not premature. The Report acknowledged that the planning permission would predetermine location and, to some extent, phasing (within the Structure Plan totals) that would otherwise be determined by the DPD, but then went on to consider whether that justified a refusal on prematurity grounds. That was not merely a sensible but a necessary step in the process of considering the application. Paragraph 17 does not say that a substantial development which predetermines decisions about the location of development must always be refused on prematurity grounds; merely that it may be refused on that ground.
59. In deciding whether a refusal is justified on prematurity grounds, it is clearly necessary to consider both the issue of housing need which was addressed in chapter 4 of the Report and the issue of delay. How long will it take for the DPD to resolve the questions of scale, location or phasing so as to meet the housing need? Those issues are considered in the Report. The threads are drawn together in the last three sentences of paragraph 5.5:

"The need for more housing is a material consideration and the delay in providing more housing that would result from waiting for the adoption of the DPD would be significant. The consultation draft of PPS 3 reflects the advice set out above. The refusal of the application on the grounds of prematurity is not therefore considered justified."

60. The consultation draft of PPS3 referred to contained this advice in paragraph 42:

"Local planning authorities should not refuse applications for planning permission simply on the grounds that the preparation or review of site allocation development plan documents would be prejudiced. However local planning authorities should not grant applications for planning permission where it can be shown that to do so would clearly discourage the development of allocated developable brownfield sites."

That advice has subsequently been strengthened in the final version of PPS3, published in November 2006.

61. At the time of the decision letter in March 2006 the council's approach to prematurity was, whether or not one agreed with the conclusion as a matter of planning judgment, fully in accordance with the advice set out in national policy documents. While the application had raised considerable local concern, the recommendation to grant planning permission rather than to wait for the issue of location to be resolved through the Development Plan process did not obviously conflict with any national policy. Nor did it raise planning issues of "more than local importance". It will be recalled that neither the County Council nor the Regional Assembly had objected to the proposal. The latter had merely asked that the Council satisfy itself that the application was not premature and that there was sufficient evidence of need. The Report demonstrates that the Council had complied (at least to its own satisfaction) with that request.
62. I am therefore satisfied that the defendant could reasonably have concluded that issues of "prematurity" and "community involvement" were not among the main matters relevant to his decision.
63. While the issue of alternative sites might be relevant in some call in decisions (see, eg, the Carter and Lakin cases referred to above), on the facts of the present case it adds nothing of substance to the claimant's prematurity argument, namely, that the location of residential development at Banbury should be determined through the Development Plan process and that it would be premature to grant a planning permission which would predetermine the outcome of that process. Although chapter 6 of the Report is headed "Assessment of Alternative Sites", the chapter discusses the alternative locations which were considered, that is to say the direction or directions in which Banbury could grow in order to meet Structure Plan housing requirements.
64. This was not a case, as in Lakin, of two rival sites for the same project (in that case a superstore). Paragraph 6.7 of the Report said that applications could be anticipated for two other greenfield sites, the claimant's site to the north west of Banbury and another site to the west of the town. Those two prospective sites, together with another site to the south of the town which had been refused planning permission, would provide some 985 dwellings. While each alternative site case is fact sensitive, it is helpful to consider the criteria for the materiality of the relative merits of the application sites and other sites suggested by Lord Justice Oliver (as he then was) in Greater London Council v Secretary of State for the Environment and London Docklands Development Corporation [1986] JPL 193 at page 196, cited by Lord Justice Roch in Secretary of State for the Environment v Edwards [1994] 1 PLR 62, at pages 69 and 70:

" ..... comparability was appropriate generally to cases having the following characteristics: first of all, the presence of a clear public convenience, or advantage, in the proposal under consideration; secondly, the existence of inevitable adverse effects or disadvantages to the public or to some section of the public in the proposal; thirdly, the existence of an alternative site for the same project which would not have those effects, or would not have them to the same extent; and fourthly, a situation in which there could only be one permission granted for such development, or at least only a very limited number of permissions."

65. In the present case there was no "alternative site for the same project". Nor was it a case where, as is very often the case in proposals for superstores, there could be only one planning permission granted or a very limited number of planning permissions as, for example, where there is sufficient retail capacity for only two out of three rival superstores.
66. In the present case there were no rival planning applications for the council or the defendant to consider.
67. The council had to consider whether predetermining the location of residential development to the south east of Banbury at this stage was appropriate, or whether the issue of location should be addressed through the Development Plan process.
68. As part of its consideration of that (prematurity) issue, the Council had regard to the fact that other locations for residential development to meet the Structure Plan housing requirements had been suggested to the north west, the west and the south of the town and that one advantage of resolving the issue of location through the Development Plan process would be that the merits of these and any other alternative locations could be considered in that process. However the Council also had to weigh against that advantage the disadvantage of delay in meeting the need for housing if the issue of location was to be resolved through that process. While views may legitimately differ as to the merits of the Council's decision, there is nothing which suggests that in resolving to grant planning permission, rather than to wait for the merits of alternative locations to be determined through the Development Plan process, the Council was acting in conflict with any national policy or that the decision - in which direction should Banbury develop, to the south east, to the west or to the north of the town - raised planning issues of anything other than purely local importance. It follows that I reject ground 1.

Ground 3

69. Although ground 3 was pursued in the alternative as to grounds 1 and 2, I am not persuaded that it adds anything to those grounds. Given the breadth of discretion in Section 77, any challenge on the grounds of perversity faces a well nigh impossible task. The question for the Secretary of State is not whether there may be conflict with national policy and whether the conflict involves important matters, but whether planning issues of more than local importance are involved. It is difficult to conceive of a more judgmental decision and one which therefore is more difficult to challenge on the grounds of Wednesbury perversity. If, as I have concluded in response to ground 1 above, the defendant was entitled to conclude that the issues raised by the claimant under ground 1 were not the main matters relevant to his consideration, there is no basis whatsoever for concluding that his decision was unreasonable. Mr Kingston did not advance any other reason why the planning issues in this case were of more than local importance. Undoubtedly there was a very great deal of local opposition, but it was just that, essentially local opposition, raising no wider issues.
70. It follows that I reject ground 3. This application must be this dismissed.
71. MR BROWN: I am grateful. In the circumstances I ask for the Secretary of State's costs of defending this application. Although it is a case which has gone over two days, there is a schedule of costs which I understand has been agreed. I do not know if you have a copy. In the light of the fact that it is agreed, I would ask for the Secretary of State's costs to be summarily assessed in the amount shown in the schedule you have which is £23,403.64.
72. MR JUSTICE SULLIVAN: Anything more?
73. MR BROWN: No. Mr Drabble indicated that he reserved the position of the application.
74. MR JUSTICE SULLIVAN: Tell Mr Drabble it was a very wise decision. So you are not going to be troubled. You agree that the Secretary of State's costs are agreed?
75. MR KEEN: I do.
76. MR JUSTICE SULLIVAN: The application is dismissed. The claimant is to pay the defendant's costs, those costs to be summarily assessed in the agreed sum of £23,403.64. Anyone for anymore, no.
77. MR BROWN: No.
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