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
		12 October 2007

1. MR JUSTICE BURTON: This claim arises out of an inspector's report delivered in September 2004 after a Local Plan inquiry held between January and March 2004, relating to housing requirements in the area of the Erewash Borough Council, which is now the defendant. The claimant is Corus UK Limited, which is the owner of a now derelict site at Oakwell Brickworks, Ilkeston. Both counsel, Richard Harwood for the claimant and Andrew Hogan for the defendant, have been extremely helpful, both in lucid and persuasive skeleton arguments and in their oral submissions before me.
2. The Oakwell Brickworks site could potentially be developed for housing, though preferably in conjunction with some other land, but has had a problem of contamination which still remains to be resolved. There has not yet been any proposal for its development nor any planning application, but the claimant wishes to preserve that possibility and to avoid any risk that it could be given less than full consideration if and when one is made.
3. Oakwell Brickworks did feature for potential housing in the Derby and Derbyshire Joint Structure Plan adopted in January 2001 and as part of Proposal H1 Housing in the list of sites contained in the Erewash Borough Local Plan First Deposit Statement of March 2001, but it disappeared by amendment in the Second Deposit Written Statement of October 2002, and was not included as a list of potential housing in the Ilkeston Sub-Area of the Erewash Council in the Urban Capacity Study for October 2002, which accompanied that Second Deposit Statement.
4. The defendant Council said this at that time, under the heading "Ilkeston Sub-Area":

"The Urban Capacity Study for Erewash has examined brownfield sites with a view to establishing which of these will contribute to the Local Plan housing needs for the period up to 2011.

The greenfield sites are allocated within the Local Plan and have been a matter for debate at the Public Inquiry into the Local Plan.

However, one brownfield site, Oakwell brickworks in Ilkeston, features in neither document. The site is heavily contaminated and has been derelict for a number of years; it has been allocated for residential development for over 10 years.

A serious proposal (ie an application for planning permission) to deal with the contamination and to redevelop the site has not been put forward by its owners or promoted by any outside agency, it is considered that it may not make a contribution

to the new Local Plan housing target and could distort the figures or cause other more realistic sites to be deleted.

Hence, it has singularly been discounted in the Urban Capacity Study in order that the Local Plan housing targets and allocations remain realistic and achievable."

5. In a further population and housing Topic Paper of 2003, the Council further said this at paragraph 5.4:

"The Council decided to delete the allocation for the second deposit of the Local Plan primarily on the basis that it considers that the site is unlikely to be developed within the plan period due to the costs of decontamination. No applications for development have been forthcoming over a number of years, despite the Oakwell Brickworks Development Brief being prepared in 1990. In accordance with Government guidance ... it is necessary to allocate land which is suitable and available for house building."

6. The claimant put in written objections at the local inquiry effectively to the exclusion of Oakwell Brickworks. The defendant said this in its submissions to the inquiry, which is supplemented with, as I understand it, oral representations. At paragraph 3.2 of the proof of evidence of its expert, this is said:

"The Council does not per se have a problem with this site being developed in the long term, subject to the existing environmental concerns being sensitively managed. However, the Council believes that due to the existing constraints, it is thought to be unlikely that the site will be brought forward within the plan period and as a result the Council has decided that the site should not be included in the local plan to meet the housing allocation figures up to 2011. There is no statement in the further written submissions from Corus to contradict the Council's assumption in this respect. Also, due to the conclusions of the Council's Urban Capacity Study ... the site is not required to meet the structure plan housing requirements ..."

7. The inspector in his report viewed the possibility of development of Oakwell Brickworks considerably more favourably, and in a passage in his report which was specifically devoted to the claimant's objections in relation to the Oakwell Brickworks being omitted from the H1 list of properties set out for housing in the Ilkeston sub-area, he said as follows:

"3.11.4 The Council indicates that the primary reason for de-allocation was the costs of decontamination and the consequent likelihood that the site would not be developed during the Plan period. However, I find no new evidence on this matter that could account for that change of view. It might explain why the site has not been developed since its allocation in the adopted Local Plan in 1994. However, the much-enlarged site is surely more attractive as a development prospect. Corus UK Limited considers that the project is deliverable during the Plan period. Apart from the enlarged site they refer to the increase in housing land values relative to decontamination costs. Also, with the projected housing shortfall in the Ilkeston sub-area and the very limited housing land allocations now proposed it is reasonable to suppose that there would in future be a reduced tendency for the development of the Oakwell Brickworks site to be put off simply because there were easier and more profitable greenfield sites available to develop. I conclude that it has not been demonstrated that this very worthwhile project would not be viable and achievable in the Plan period. That is not to say that there is no uncertainty, but the recommended non-implementation allowance would at least enable the provision in Proposal H1 to take this into account.

3.11.5 It may be the case that the site owner would in any event have to do a certain amount of site remediation as part of a duty of care. However, it seems to me that the allocation of the enlarged site would add considerable impetus to site reclamation undertaken as part of a comprehensive scheme. This would provide the local community with a better and more timely balance of benefits in terms of housing, open space, amenity and nature conservation. I am far from convinced that the allocation would hold back the development of less problematic sites allocated in the Plan.

...

3.11.9 All things considered, and with certain qualifications, I conclude that the site should be allocated for housing development."

8. The inspector concluded:

"RECOMMENDATIONS

I recommend that the Local Plan be modified by re-instating in Proposal H1 the housing land allocation at Oakwell Brickworks."

9. A Council is not required to accept the recommendations of an inspector at a Local Plan inquiry, but must give reasons for so doing if it does not accept such recommendations. There is common ground as to the law, which was not the subject of any contention before me. The relevant regulation is Regulation 27 of the Town and Country Planning (Development Plan) (England) Regulations 1999, and three relevant authorities were referred to me: Miller and ors v Wycombe District Council [1997] JPL 951; Stirk v Bridgnorth District Council [1997] 73 P&CR 439; and Welsh Development Agency v Carmarthenshire County Council [2000] JPL 692.
10. In the event, the question of whether the defendant Council gave reasons was not in the forefront of the argument as I shall describe. The defendant Council did not accept the recommendation to which I have referred in the report, but not by reference to any specific considerations in relation to the Oakwell site or its contamination, or any problem about it at all. They considered that there was no call for any housing in the Ilkeston sub-area at all, and so they deleted the H1 Proposal and the H1 list of authorities from the Local Plan in its entirety. Thus, the recommendation of the inspector that the Local Plan be modified by reinstating Proposal H1, the housing land allocation at Oakwell Brickworks, was not followed by Oakwell Brickworks being included in Proposal H1 because Proposal H1 was entirely eliminated. This meant that there was to be no provision in relation to possible housing, not only at Oakwell Brickworks, but in relation to any other of the residue of the housing listed in H1 and in respect of which planning permission had not been granted.
11. The response of the Council to the inspector's report is contained in a statement of decisions and schedule of proposed modifications dated February 2004. At what is our page 234, the Council stated this under the heading "Proposed Modification":

"The section entitled Principal Housing sites, paragraphs 2.25-2.33a and Proposal H1 to be deleted.

Reason: This modification has been set out first in this chapter because many of the modifications that follow are as a result of this substantial change. Due to updated housing figures for 2004 as set out in the revised Urban Capacity Study 2004 and November 2004 update ... the Borough is currently 371 dwellings above its Structure Plan target of providing 6,000 houses by 2011. This figure includes houses completed, urban capacity and committed sites. There is therefore now no need to allocate land for housing development within the Plan. As such there is no need to retain paragraphs 2.25-2.33a and Proposal H1 within the plan. The existing committed sites together with the urban capacity sites provide a range of development options for the Plan period. This does not mean that further housing sites will not be granted planning consent, as urban capacity and windfall sites will continue to come forward. Consideration of residential planning applications will be based on their merits. The deleted sites, together with all other relevant sites will be considered for allocation as housing land as part of the Council's Local Development Framework, work on which is due to commence in line with the review of the Regional Spatial Strategy."

12. The specific reason given in the statement for not accepting the recommendation of the inspector at 3.11 with regard to the Oakwell Brickwork site appears at what is our page 252 in the bundle. Having recited the recommendation, which I have set out above, the column under the heading "Council's response to inspector's recommendation", reads:

"Disagree with inspector's recommendation. Due to updated housing figures for 2004 there is now no need to allocate housing land for development. As such there is no need to retain Proposal H1."

13. Three grounds are set out by Mr Harwood of counsel in his skeleton, which are his very helpful way of crystallising the original four grounds in his claim form, coupled with a fifth which came in by amendment as to which there has been no objection by Mr Hogan. I read the first ground as set out in paragraph 4(1) with a small addition which I shall indicate.

"(1) In relying on the January 2005 Urban Capacity Study as a reason for excluding Oakwell Brickworks [from the Local Plan] the Council failed to have regard to a material consideration that the Urban Capacity Study's rejection of the Brickworks site on the basis of deliverability had been rejected by the inspector. Had the brickworks site been included in the Urban Capacity Study it would have ranked with the other identified sites as sites included in the Local Plan housing supply. Alternatively the Council displayed a closed mind in relying on arguments in the Urban Capacity Study which had been rejected by the inspector, without recognising that they had been rejected, let alone reconsidering the point and answering it, or its reasoning was inadequate."

14. Mr Harwood was compelled in the course of submissions to accept that he was not in a position to support this ground and that it did not in any event properly constitute the nature of his argument. He is not, he made it quite plain, relying on mala fides. As I have set out it, it was not a reason for rejection by the Council of the inspector's report that they still stood by their questioning views as to the deliverability of housing on the site by reference to contamination or otherwise. The reason for their rejection of this site, and indeed of all and any other sites in H1 (there being thus no discrimination against Oakwell Brickwork site per se) was that set out at page 252, which I have recited above. Mr Harwood accepted that his real case was that the Council was not entitled to rely on that reason, and that brought him effectively to his second ground, which I shall describe and which formed the nub of his case before me today and the basis of the battle ground between him and Mr Hogan, insofar as it remained.
15. The Council area, as I have indicated, is made up of three sub-areas, only one of which was Ilkeston; the other two are Long Eaton and Derby. In the Derby and Derbyshire Joint Structure Plan, to which I shall refer, there was certain provision made for housing development in the Erewash Borough between 1991 and 2011 in respect of each of those three sub-areas, coming together at a total amount of 6,000. Ilkeston was targeted for 3,200 and Long Eaton for 2,400. However, it soon became clear that there was over-provision of such new housing in Long Eaton and under provision in Ilkeston, and for the purposes of the inquiry, there was a document prepared, which has been called the Proposed Pre-Inquiry Modification Statement of September 2003 ("PIM").
16. PIM 8 was the proposal of the insertion of a new paragraph 2.9a into the Urban Capacity Study of April 2003 which the inspector was specifically requested to consider at the inquiry. 2.9a would read, if accepted, as follows:

"Whilst the figures show a shortfall in the Ilkeston Sub-Area, the over-provision in the Long Eaton and Derby Sub-Areas, part of which are physically close to Ilkeston and public transport, can be used to meet this shortfall. This results in a borough-wide over-provision of 21 dwellings."

17. By the time of the inquiry, this over-provision borough-wide had increased, and the figures as at 31 October 2003 were that there was a borough-wide over-provision of 178 dwellings, with an over-provision of 286 in Long Eaton and an under-provision of 158 in Ilkeston. By the time of the response to the inspector's report, to which I have referred when the inspector's recommendation in regard to Oakwell, which rejection is now under challenge, was published, the figures had changed yet further and there was now an over-provision borough-wide of 371 dwellings, with an over-provision in Long Eaton of 542 and an under-provision in Ilkeston of 231.
18. There was one other amendment which the Council put before the inspector, reference PIM 11, and that was to be a new paragraph 2.25 in the said Urban Capacity Study, reading as follows:

"The Structure Plan allocates different housing figures to different Sub-Areas of the Borough. The Urban Capacity Study 2003 shows an over-provision of housing in the Long Eaton and Derby Sub-Areas, but an under-provision in Ilkeston. Given the proximity of the areas, particularly Long Eaton and Ilkeston, it is reasonable to consider that the under-provision in the Ilkeston Sub-Area will be in part met by the additional housing in the Long Eaton Sub-Area. However, given that there is already an over-provision, it would not be appropriate to allocate further sites in Long Eaton. It is envisaged that the market will continue to provide windfall sites which would meet the criteria set out in paragraph 2.20."

19. The policy of setting off over-provision in one Sub-Area against under provision in another was described by me, I know not whether for the first time, in the course of this hearing as "off-set", which was adopted by both parties in the course of their submissions. It is quite plain that the decision by the defendant not to accept the inspector's recommendation in relation to the inclusion of Oakwell Brickworks in H1 by virtue of the deletion of the entirety of H1 was on grounds of off-set. Off-set, and the entitlement of the defendant Council to do it, has thus formed the focus of the argument before me.
20. Mr Harwood submitted that the inspector's report contained an unconditional recommendation that Oakwell Brickworks should be included in a list as part of proposed housing which was irrespective of the Council's policy of off-set, and it would have been to be conceded, irrespective of whether any other land was also said to be available for housing in the Ilkeston Sub-Area. Alternatively, he submitted that, if the Council was permitted to reject the recommendation of the inspector, off-set itself could not be an excuse for the reasons he has given, and other reasons or better reasons would have had to have been put forward. This depends upon a construction -- or at any rate a close reading -- of the inspector's report.
21. I have indicated that there was a separate section dealing with each objector, and in particular with regard to the written objection by the claimant, and it was at paragraph 3.11 that he dealt with the objection by the claimant. I have read the passage of the report in which he indicated his favourable views with regard to the site. That section began with the following sub-paragraphs, and I recite 3.11.1 and 3.11.2:

"3.11.1 The Council appears to accept that much of the site is previously developed land, and I would not question that. I appreciate that in the First Deposit adjoining greenfield areas were added to the site that was allocated in the adopted Local Plan. However, I would rate the enlarged site highly in terms of the sequential approach and sustainability criteria in both PPG3 and RPG8. On this basis, and despite the presence of some on-site constraints and the promotion of several other sites by objectors, I conclude that the site deserves to be given priority in considering sites for housing development. It is notable that the Second Deposit allocates no brownfield sites for residential development in the Ilkeston sub-area.

3.11.2 From the evidence submitted by Corus UK Limited I infer that it would be feasible to reclaim the contaminated parts of the site, create safer, managed areas for public access, amenity and nature conservation and provide land for housing development that would make a significant contribution to the strategic housing requirement. In particular, the development would help to remove the housing shortfall for the Ilkeston sub-area, and its contribution would be even more important were the allocation of the allotments sites in Ilkeston to be withdrawn. In view of my related findings in section 3.2 I cannot agree with the Council that a site such as this is 'not required to meet the Structure Plan housing requirements'."

22. It is those two paragraphs, and in particular the last two sentences of 3.11.2, which are relied upon by Mr Harwood in his submission that the recommendation with regard to the Brickworks was unconditional, and that such Brickworks must be included as permitted housing in the Ilkeston Sub-Area without consideration of off-set.
23. I turn to the section to which he makes reference in those paragraphs, namely 3.2, and I recite paragraphs 3.2.32 and 3.2.34 through to 3.2.37:

"3.2.32 I cannot agree that land allocated for housing in Ilkeston is excessive and out of balance. The question of balance between the sub-areas has been addressed in the Structure Plan, and I see no justification for re-opening it now. Table B and Proposal H1 show that the Council's allocations in the Ilkeston sub-area are not sufficient to raise housing provision to the level required to meet the Structure Plan requirement. This remains the case even with the Council's Proposed Changes.

...

3.2.34 The housing requirement for Erewash is stated in Housing Policy 14 of the Structure Plan. The policy makes quantitative provision for the Borough as a whole. It also divides the total figure between the three sub-areas. Proposal H1 and Table B indicate that the Plan provides for sufficient housing to meet the overall requirement for the Plan period, but that there is a shortfall in the Ilkeston sub-area and a surplus in the Long Eaton and Derby sub-areas. The Proposed Changes and the Housing Topic Paper show a similar position although the figures are not the same.

3.2.35 I accept that the Plan should aim to meet the sub-area requirements as stated in the Structure Plan. However, I also accept that there are several arguments in favour of accepting the shortfall for the Ilkeston sub-area in this case. First, the latest figures in the Housing Topic Paper show that the shortfall is not great: at 158 dwellings it is a little less than 1 year's supply. Secondly, to put this in context, the Structure Plan figures are rounded to hundreds and the policy states that they should be 'located generally' in the sub-areas concerned. This suggests to me that minor deviations from the figures would not be regarded as serious. Thirdly, it is notable that the County Council has not objected to the Plan on these grounds: indeed, it evidently regards the housing chapter to be in conformity with the Structure Plan.

3.2.36 Fourthly, it is reasonable to suppose that the harm that results from the Ilkeston shortfall can to some extent be mitigated by the projected overprovision in adjoining sub-areas, especially Long Eaton. The latest figures indicate that the overprovision there is well in excess of the Ilkeston shortfall. That is not to say that it is generally acceptable to plan for sub-area shortfalls as long as overall balance is achieved. In this case I am conscious that the Structure Plan provision for the Ilkeston sub-area explicitly includes an element (650 dwellings) to accommodate overspill from Long Eaton in order to protect the general extent of the Green Belt here. The recent figures indicate that the over-provision at Long Eaton is not dependent on site allocations but results from higher than expected urban capacity. In my view these circumstances considerably moderate the degree of seriousness of the Ilkeston shortfall.

3.2.37 By the same token they reduce my concern about the over-provision in the Long Eaton sub-area. Because the over-provision arises even without making site allocations, there is some justification for the Council's Proposed Changes that would delete the two allocations in Proposal H1 of the Second Deposit. It would accord with the last sentence of PPG3(30), which indicates that the search for potential housing sites should not be extended further than required to provide sufficient capacity to meet the housing requirement."

24. The inspector there sets out what one might call the pros and cons of off-set, and if it stopped at that, it might be said that his subsequent recommendation in 3.11 would simply fall within that debate and perhaps override any otherwise pros for the policy of off-set. However, the inspector does not leave it at his discussion of the pros and cons of off-set, he makes specific recommendations at the end of paragraph 3.2. He recommends that the Local Plan be modified in accordance with the proposed change, among others, PIM 11; that is, the addition of paragraph 2.25 which I have earlier recited.
25. Centrally, he then makes a further recommendation that the Local Plan be modified by "... (h) inserting a paragraph 2.9a along the lines of Proposed Change PIM 8, but updated as necessary, and ensuring that the reference to the over-provision figure is adequately explained". It is quite plain that he expected that 2.9a, which I have read and which at that stage referred to the over-provision of 21 dwellings, would now be updated to cover the considerably greater over-provision that there was, and he was simply anxious that that over-provision be adequately explained. Clearly it could be by reference to the over-provision in one Sub-Area and the under-provision in another.
26. Mr Harwood has submitted that in some way there is a tension between 2.25 and its reference in part met and 2.9a, but I am entirely satisfied that there is not intended to be any such tension, and that they each serve slightly different functions, as is apparent from their wording. As it happens, 2.25 was not proceeded with by the defendant Council, as referred to earlier in their response statement. The clear picture, in my judgment, is that by specifically approving 2.9a, the inspector was legitimising the policy of off-set. It can certainly not be said in the slightest that, whether by the parallel inclusion of 2.25 or otherwise, he was recommending against off-set or in any way recommending that there had to be provision of housing in the Ilkeston Sub-Area, notwithstanding over-provision in the Long Eaton Sub-Area or the Derby Sub-Area.
27. It is in those circumstances that the response statement to which I have referred specifically says at page 244 of the bundle that there will be incorporation of a new paragraph 2.9a by agreement with the inspector's recommendation as it is put, namely:

"2.9a. Whilst the figures show a shortfall in the Ilkeston Sub-Area, the over-provision in the Long Eaton and Derby Sub-Areas, part of which are physically close to Ilkeston and public transport, can be used to meet this shortfall. This results in a borough-wide over-provision of 371.

Reason: To accord with the inspector's recommendation."

28. It is very clear to me that when the inspector was making plain his views as to the suitability of Oakwell Brickworks, he was thereby ruling out any of the caveats that had been expressed in the documentation to which I have referred by the defendant, which might have justified exclusion on grounds of contamination or non-deliverability of the site, and that he was not recommending the unconditional inclusion of Oakwell Brickworks, not to speak of Oakwell Brickworks if no other site were to be included, which, as I have indicated, is what Mr Harwood would need to argue, when he was simultaneously accepting and making the recommendation as to the availability of the off-set policy, as I have described.
29. In my judgment, the Council acted entirely in accordance with the recommendation, or certainly within it, when they concluded that they would operate the off-set policy which meant no housing, which thus meant that neither the Oakwell Brickworks nor any other housing previously on the H1 list was to be included in the new Local Plan. In those circumstances, Mr Harwood's argument fails.
30. His third ground is set out in this way in his skeleton argument:

"The Council failed to have regard to a material consideration, namely the inspector's comments on the desirability of a ten-year housing land supply. The inspector had considered that a ten-year supply ought not to be required time because of the time which would be taken to identify sites. Even given the Council's decision that there was a sufficient supply to the end of the plan period (in 2011) Oakwell Brickworks could still have been allocated to contribute to the longer period."

31. Even reading that ground makes one appreciate that it is not the strongest of contentions. It is not a question of no reasons being relied upon; it appears to be a Wednesbury unreasonableness test. The case appears to be along the following lines: the defendant ought to have included a ten-year plan and did not. Mr Harwood accepts that, in the event, the inspector did not recommend the inclusion in the Local Plan of a ten-year plan. He explains his thinking in his report, and I here incorporate 3.2.5, 3.2.44(b), 3.2.46 and 3.2.47:

"3.2.5 Clearly, the Plan does not make provision for a 10 year supply of housing land from the expected time of plan adoption. I regard this as an important deficiency, especially in view of the Ministerial Statement of 17 July 2003, which drew attention to existing guidance in PPG3(28) and PPG12(6.8), and which highlighted the need for development plans to make provision for at least 10 years potential supply of housing from the forecast adoption date. While it is true that PPG12(6.8) also advises that a local plan should be prepared to the same period covered by the relevant structure plan, that advice is qualified by the words 'where possible' and is set in a context that appears to me to give priority to meeting the 10 year requirement. That the last few years of the 10 year period would in this case be beyond the period of the Structure Plan, and could not therefore be assessed as being in conformity, would not itself present any great problem in my view. The development plan system is due to change over this period and the plan, monitor and manage approach would allow flexibility to make adjustments in future years in response to evolving strategic guidance. The implication of my conclusion on this matter is that more housing land may need to be allocated in the Plan, in order to meet the requirement for the Borough. I consider this aspect further in dealing with the land allocation issues below.

3.2.44 (b) To accord with Government guidance an additional 3 or 4 years of housing provision are required, in order to provide for 10 years of supply from the date of Plan adoption. Based on annual figures produced at the inquiry, I estimate that this could involve the allocation of an additional 700 to 950 dwellings in total.

...

3.2.46 Were I to recommend that the Council undertake the necessary information gathering and analysis work for the purpose of modifying the Plan to provide for conclusion (b), it is likely that the adoption of the Plan would be very considerably delayed. This would be contrary to all the Government's objectives for the transition to the new development planning system, as set out in draft PPS12(5.1.1). I believe it would greatly slow the Council's progress to the new Local Development Framework. Secondly, it would also harm the aim of maintaining continuity in the development plans system as a framework for development control. The relevant provisions in the current adopted Local Plan extend only to 2001 and so there is a presently a development plan hiatus, which it is desirable to minimise. Thirdly, it would fail to minimise transitional costs. That is because the scale of modifications to the Plan would be considerable, and would be followed soon afterwards by the process of establishing the new Local Development Framework.

3.2.47 I therefore conclude that it would be better for the Council to move quickly to the adoption of the Plan, making adequate provision for the period of the Structure Plan, but then being able to make an early start on the Local Development Framework. This would allow a more efficient transition and one that should allow housing provision for the years up to and beyond 2011 to be addressed without undue delay."

32. It is quite plain from that passage that, although he criticises the absence of a plan, he does not recommend that there be a ten-year plan in the Local Plan, but simply that the defendant Council instead makes an early start on the Local Development Framework, which is in any event required now by new legislation. What is said by Mr Harwood is that if there had been a ten-year plan, which there was not, and if there should have been a ten-year plan, which there should not, then if they were not going to have a ten-year plan, whether or not they should have had it, they should have or could have included in the non-ten-year plan the Oakwell Brickworks as a fall-back position. It is quite clear to me that, given that the defendant Council was not carrying out a ten-year plan and is not in the end criticised by the inspector for not having done so, they were not obliged to include in a four-year plan a site which might well have been included in the ten-year plan. The argument must, in my judgment, fail.
33. In those circumstances, the claim fails in its entirety. I add only a short coda on the question of relief. Mr Harwood accepts that if, in accordance with his submission, there was an unconditional recommendation by the inspector which could not be complied with by operating the off-set policy, then the Council would not have been obliged to have acted in accordance with that recommendation, but would have to have given reasons for doing so if they did not. In my judgment, particularly given the way in which the inspector dealt with the pros and cons of off-set, it would have been very easy indeed for them to satisfy that requirement to give reasons, even if they did not do so even on what they have produced. The reasons are obvious. The over-provision continued to increase. The figures now in the bundle which would have required to have been considered by me so far as the exercise of discretion is concerned if this is the only basis on which the matter had been left to me are that, as at 2006, there was an over-provision in the defendant area of 1,555 dwellings because there is an over-provision in Long Eaton of 1,602, and even an over-provision in Ilkeston by virtue, I am told, by Mr Hogan of some successful appeals against refusals of planning permission in the Ilkeston Sub-Area itself. There simply is no requirement on the evidence for any housing in order to comply with the defendant's plans, whether at the Oakwell Brickworks or otherwise.
34. In any event, if I were to have been persuaded to quash the Local Plan, as Mr Hogan points out, it would not now be possible to produce a new Local Plan as it has been overtaken by the requirement for a local development framework, as the inspector himself expected, in paragraph 3.2.47, which I have recited above. The defendant Council is in the process of preparing a Local Development Framework in any event, and thus any order would have been fruitless.
35. As a footnote, and indeed perhaps of some comfort to the claimant when it comes to such Local Development Framework, the Brickworks have been included in the most recent version of the Urban Capacity Study, that of October 2006, as a developable brownfield site, albeit on a longer term basis than the claimants wished. Consequently, there must be judgment for the defendant.
36. MR HOGAN: I am obliged. My Lord, there is an application for costs.
37. MR JUSTICE BURTON: Yes.
38. MR HOGAN: The principle of costs is not in issue. The quantum of costs is not in issue. A point has been raised as to whether the local authority should be charged VAT on their costs. I have taken instructions. I am told that they should and the final figure is £9,317.62.
39. MR JUSTICE BURTON: Yes, what is the basis for saying that there should not be VAT added?
40. MR HARWOOD: On the basis that if the local authority are able to recover VAT, they will be in a position of being paid the sum including VAT.
41. MR JUSTICE BURTON: Is that not the case with all claimants who are companies -- all successful parties -- and it is normal to order VAT.
42. MR HARWOOD: My Lord, it is not our understanding that it is normal --
43. MR JUSTICE BURTON: Do you have any authority on it?
44. MR HARWOOD: My Lord, we do not, although an oddity of this particular case is that the Council has charged VAT on its own inhouse solicitors' fees, so it is making, according to the statement, it is making a VATable supply --
45. MR JUSTICE BURTON: It seems to me that the sensible way forward, from this point of view, might be, might it not, for me to make an interim order for the full amount of the costs less VAT, and for me to order that the balance go to detailed assessment if not otherwise agreed, and then either you can agree it or battle it out in correspondence or the taxing master can resolve it fairly speedy.
46. MR HARWOOD: Absolutely, my Lord.
47. MR JUSTICE BURTON: How much is the non-VAT figure?
48. MR HOGAN: My Lord, it is £7,946.50.
49. MR JUSTICE BURTON: I will make an interim order for the payment of 7,946.50, within 21 days?
50. MR HARWOOD: That is fine.
51. MR HOGAN: I am obliged.
52. MR JUSTICE BURTON: Within 21 days, and the balance of the -- I am so sorry, let me start again. The defendants to have their costs of the proceedings, to be assessed if not agreed. There will be an interim order of 7,946.50 to be paid within 21 days, the balance of the costs to be assessed if not agreed. Thank you very much.
53. MR HARWOOD: My Lord, just one or two further matters.
54. MR JUSTICE BURTON: Yes.
55. MR HARWOOD: Two points about the transcript (inaudible). First of all, my Lord ought to recall towards the start of your Lordship's judgment referring to the site having been allocated in the Structure Plan.
56. MR JUSTICE BURTON: Which one?
57. MR HARWOOD: My Lord referred to it being allocated in the Derbyshire Structure Plan. It was actually the Erewash Local Plan 1994.
58. MR JUSTICE BURTON: I thought I was reciting the Derby and Derbyshire Joint Structure Plan 2001. Let me just find it. I made some notes of what I said so I can easily look it up. I said Oakwell Brickworks feature for potential housing in -- and I said tab 5, which is January 2001, Derby and Derbyshire Joint Structure Plan, and then I said as part of list H1 in tab 6, which I described as the First Deposit Local Plan, and then I said: however it disappeared, for shorthand in tab 7, and in tab 14. Now, what did I wrongly refer to?
59. MR HARWOOD: My Lord, the slip was referring to it as being in the Structure Plan; it was in the adopted Erewash Local Plan of 1994.
60. MR JUSTICE BURTON: Hold on.
61. MR HARWOOD: Which is tab 4.
62. MR JUSTICE BURTON: I am sure you are right, but I cited -- you are absolutely right. It did not feature in tab 5; it only featured in tab 6.
63. MR HARWOOD: And it was in the adopted Local Plan. If it had been the Structure Plan, the argument would be very different.
64. MR JUSTICE BURTON: I did refer to tab 6. I said tab 5 and tab 6, so I shall make sure that there is only reference to a feature in tab 6, which is the Local Plan, and it did not feature in tab 5, my fault.
65. MR HARWOOD: My Lord, the reference throughout was in tab 4, which is the adopted Erewash Local Plan of 1994.
66. MR JUSTICE BURTON: Hold on. You are absolutely right. That is my mistake. I will make sure there is a reference to tab 4 and tab 6 in my shorthand, rather than to tab 5 and tab 6. Thank you.
67. MR HARWOOD: My pleasure, my Lord. The other point in the transcript, as I understood my Lord's judgment, my Lord was saying that what had been PIM 11, the paragraph 225, the sort of "Sub-Area will in part" point, that that was left out of the adopted plan.
68. MR JUSTICE BURTON: It was. I do not know.
69. MR HARWOOD: It was not.
70. MR JUSTICE BURTON: If it was not left out of the adopted plan, so be it. It was certainly left out -- I never looked at the adopted Plan, I am glad you corrected me -- but it was certainly left out of the response document because I actually read in the course of my judgment page 234, which positively recommends, if you notice, that the section entitled "Principal housing sites", paragraphs 2.25 to 2.33, and the (inaudible) be deleted. You are simply saying that was not carried through? It does not matter.
71. MR HARWOOD: No, my Lord, I think there are two 2.25s, because at page 238 of the bundle --
72. MR JUSTICE BURTON: Yes.
73. MR HARWOOD: We have in the fourth column the Council's decision -- paragraph 2.25 which is earlier can be deleted.
74. MR JUSTICE BURTON: It was not the slightest of significance to my thinking as to whether -- I think it was just a parenthesis to show that I had noticed. But I will take it out. Thank you, ie 2.25 was deleted by it and was replaced by a new 2.25.
75. MR HARWOOD: It was replaced by a version.
76. MR JUSTICE BURTON: It was not a stepping stone in any of my thought processes. Thank you.
77. MR HARWOOD: My Lord, I have a short application for permission to appeal.
78. MR JUSTICE BURTON: Yes, what is the basis of it?
79. MR HARWOOD: The basis of that, my Lord, is that my Lord has identified as the critical issue in this appeal what it was the inspector said in relation to the need to allocate Oakwell Brickworks in the context of the off-set point between Sub-Areas.
80. MR JUSTICE BURTON: Yes.
81. MR HARWOOD: And my submission, my Lord, was that the inspector had said there is a need to allocate, notwithstanding the off-set point and the Council simply failed to grapple with that. My Lord, it is a relatively short point, but it is a point which I say, with respect, the Court of Appeal may disagree with you.
82. MR JUSTICE BURTON: I do not think it is one that the Court of Appeal is going to have the slightest interest in. It is not a matter of construction of a statute. There is no law involved in this case at all. It is simply looking at the report, and I do not think the Court of Appeal will be interested. In any event, I conclude that it is quite clear that you have no prospect of success in relation to it.
83. MR HARWOOD: I am grateful, my Lord.