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
		2nd September 2008

1. JUDGE PELLING QC: By a decision letter dated 23rd August 2007, the Secretary of State for Communities and Local Government allowed an appeal by Redrow Homes (South West) Limited against a refusal by South Gloucestershire Council to grant planning permission for 152 dwellings in the form of 57 one-bedroomed dwellings and 95 two-bedroom dwellings within two, three and four-storey buildings, together with relocation of certain sporting facilities on a site known as the Playing Fields, New Road, Filton, near Bristol.
2. By these proceedings, which have been commenced pursuant to Section 288 of the Town and Country Planning Act 1990, South Gloucestershire Council (the claimant) seeks an order quashing that decision on the basis that one of the relevant requirements of the 1990 Act has not been complied with. The decision of the Secretary of State is alleged to be flawed because, contrary to section 70(2) of the 1990 Act, she failed to have regard to what is alleged to be a material consideration, namely a decision taken by her on 19th June 2007 by which she dismissed an appeal from a refusal by the claimant to grant planning permission at the site known as Northfield, Filton Airfield, in Bristol. That appeal failed inter alia because the Secretary of State agreed with the claimant that the scheme did not provide for 77 per cent of the affordable housing element of the scheme to be of social rent tenure. It is said that the later decision in relation to the index site is inconsistent with the policy interpretation adopted by the Secretary of State in relation to Northfield, that this was a material consideration which was either not taken into consideration by the Secretary of State when reaching her decision in relation to the index site or, alternatively, no explanation has been given for departing from it in circumstances where such an explanation was called for.
3. The Inspector's report in respect of the Northfield site is dated 21st March 2007. The Inspector's report in relation to the index site is dated 15th June 2007. The Secretary of State's decision in relation to the Northfield site is dated 19th June 2007. It follows that the Secretary of State's decision could not have been, and was not, known to the Inspector considering the index site inquiry. The Secretary of State's decision in relation to the index site is dated 23rd August 2007, some 2 months after her decision in relation to the Northfield site. In practice the decisions were taken by different officials on behalf of the Secretary of State. However, it is accepted by Mr Warren, who appears on behalf of the Secretary of State, that if the earlier decision is a material consideration in deciding the index site appeal, which is strongly challenged, then no point is taken concerning the failure by the claimant expressly to draw the attention of the Secretary of State to the Northfield decision in the period between the end of the index site inquiry and the date when the Secretary of State issued her index site decision.
4. I now turn to the relevant policy framework. It is common ground that Policies H1 and H6 of the South Gloucestershire Local Plan applied to both sites. Insofar as is material, policy H6 is to the following effect:

"THE COUNCIL WILL SEEK AN ELEMENT OF SUBSIDISED AFFORDABLE HOUSING TO MEET LOCAL NEEDS ON ALL NEW HOUSING DEVELOPMENTS OF 15 OR MORE DWELLINGS OR 0.5 HECTARE OR MORE, IRRESPECTIVE OF THE NUMBER OF DWELLINGS, (EXCEPT IN SETTLEMENTS IN RURAL AREAS WHERE THE THRESHOLD WILL BE 5 OR MORE DWELLINGS OR 0.2 OF A HECTARE).

ON THOSE SITES ALLOCATED IN POLICY H1, THE COUNCIL WILL NEGOTIATE WITH DEVELOPERS ON THE BASIS OF A TARGET OF 33.3% OF THE DWELLINGS PERMITTED...

PERMISSION WILL BE SUBJECT TO CONDITIONS OR A PLANNING OBLIGATION WILL BE NEGOTIATED TO ENSURE SUCH HOUSING IS RESERVED FOR FIRST AND SUBSEQUENT OCCUPIERS WHO NEED IT.

IN SEEKING TO NEGOTIATE THE MAXIMUM LEVEL OF AFFORDABLE HOUSING ON EACH SITE THAT IS FEASIBLE UP TO THESE TARGETS THE COUNCIL WILL HAVE REGARD TO THE ECONOMIC VIABILITY OF SITE DEVELOPMENT, LIKELY COSTS, EXISTING MARKET CONDITIONS, THE AVAILABILITY OF PUBLIC SUBSIDY AND THE AIM OF ACHIEVING BALANCED AND STABLE COMMUNITIES."

5. Affordable housing for these purposes is defined in paragraph 8.184 of the Local Plan in these terms:

"The Government's definition of 'affordable housing' encompasses both low-cost market housing and subsidised housing (irrespective of tenure, ownership or financial arrangements) that will be available to people who cannot afford to rent or buy houses generally available on the open market. All other housing is referred to as general market housing (Circular 6/98). The Council acknowledges this definition. Other policies in the Plan (H1 and H2) encourage densities which will require an element of low-cost market housing in the form of small units..."

6. Paragraphs 8.185-8.187 of the Local Plan refer to a housing needs survey prepared by John Herington Associates in March 2003. The report is summarised for the purpose of justifying the Council's policy set out at paragraph 8.190 of the Local Plan in these terms:

"The Council's objective in these circumstances is therefore to seek the maximum level of affordable housing on each site that is feasible having regard to the economic viability of site development, likely costs (including other Section 106 obligations) existing market conditions, and the availability of public subsidy."

7. In relation to the real issue in this case, tenure mix, paragraph 8.193 of the Local Plan provides as follows:

"In accordance with PPG3 and Circular 6/98, Policy H6 does not prescribe the type of affordable housing by reference to tenure. In seeking to negotiate subsidised affordable housing on a site-by-site basis the Council will have regard to the identified housing need in the area, by reference to the JHA HNS and other relevant up-to-date information held by the Housing Department. In practice, the type of subsidised affordable housing being sought will be aimed at addressing a range of needs and will accordingly cover a range of tenures including social rent, shared ownership, intermediate/'near market' rents and discounted home ownership."

8. The Herington Report is not expressly referred to as supporting this policy but in fact the report concluded in relation to tenure mix as follows:

"7.21 When these options are tested against the income profile of both backlog and emerging households over the plan period, we found that:

Social rented housing is still by far the most important of the tenures required over the plan period -it should account for at least 77.4% of provision.

Sub market renting: 11.5% of households can afford sub-market renting if it is provided at 75% OMR.

Lower Cost Home Ownership: 8.7% of households can afford LCHO if it is provided at no greater than 40% of OMV.

Discounted sale: no more than 2.4% and discounted by 30% to play any part in the provision of affordable housing supply - see para 6.18 and Table 6.8."

9. As is expressly stated in paragraph 8.183 of the Local Plan, it was prepared in order to give effect to the Government's policy set out in PPG3. This was replaced with effect from 1st April 2007 by PPS3, see paragraphs 5 and 8 of PPS3.
10. At paragraph 10 of PPS3 it is stated that:

"These housing policy objectives provide the context for planning for housing through development plans and planning decisions. The specific outcomes that the planning system should deliver are...

- A mix of housing, both market and affordable, particularly in terms of tenure and price, to support a wide variety of households in all areas, both urban and rural."

11. At paragraph 11 it is said:

"PPS3 sets out policies designed to achieve these outcomes, based upon the following concepts and principles...

Evidence-Based Policy Approach - Local Development Documents and Regional Spatial Strateg[y] policies should be informed by a robust, shared evidence base, in particular, of housing need and demand, through a Strategic Housing Market Assessment and land availability, through a Strategic Housing Land Availability Assessment."

12. It is said at paragraph 20 of PPS3, under the subheading "Achieving a mix of housing", as follows:

"Key characteristics of a mixed community are a variety of housing, particularly in terms of tenure and price and a mix of different households such as families with children, single person households and older people."

13. Paragraph 24 of PPS3 provides as follows:

"In planning at site level, Local Planning Authorities should ensure that the proposed mix of housing on large strategic sites reflects the proportions of households that require market or affordable housing and achieves a mix of households as well as a mix of tenure and price. For smaller sites, the mix of housing should contribute to the creation of mixed communities having regard to the proportions of households that require market or affordable housing and the existing mix of housing in the locality."

14. Paragraph 29 of PPS3 provides:

"In Local Development Documents, Local Planning Authorities should:

- Set an overall (ie plan-wide) target for the amount of affordable housing to be provided. The target should reflect the new definition of affordable housing in this PPS. It should also reflect an assessment of the likely economic viability of land for housing within the area, taking account of risks to delivery and drawing on informed assessments of the likely levels of finance available for affordable housing, including public subsidy and the level of developer contribution that can reasonably be secured. Local Planning Authorities should aim to ensure that provision of affordable housing meets the needs of both current and future occupiers, taking into account information from the Strategic Housing Market Assessment.

- Set separate targets for social-rented and intermediate affordable housing where appropriate. A sufficient supply of intermediate affordable housing can help address the needs of key workers and those seeking to gain a first step on the housing ladder, reduce the call on social-rented housing, free up existing social-rented homes, provide wider choice for households and ensure that sites have a mix of tenures."

15. The requirements as to the form and content of the Strategic Housing Market Assessment was set out in Annex 3. Social rented housing intermediate affordable housing and Affordable housing were all redefined in Annex B as meaning respectively:

"Rented housing owned and managed by the local authorities and registered social landlords, for which guideline target rents are determined through the national rent regime. The proposals set out in the Three Year Review of Rent Restructuring (July 2004) were implemented as policy in April 2006. It may also include rented housing owned or managed by other persons and provided under equivalent rental arrangements to the above, as agreed with local authority or with the Housing Corporation as a condition of grant."

16. Intermediate affordable housing means:

"Housing at prices and rents above those of social rent, but below market price or rents, and which meet the criteria set out above. These can include shared equity products (eg HomeBuy), other low cost homes for sale and intermediate rent."

17. Affordable housing was defined as including:

"... social rented and intermediate housing, provided to specified eligible households whose needs are not met by the market."

18. In March 2007 the Annex C requirements for the form and content of the Strategic Housing Market Assessment were the subject of a further policy document called "The strategic housing market assessment practical guidance". A copy of this was not provided to me. It was not referred to in either the Northfield Inspector's report or the Northfield decision letter. Although it was submitted on behalf of the claimant that it was available to both the Inspector and the Secretary of state when the Northfield report and decision letter respectively were prepared, there is no evidence that either actually referred to it for the purpose of arriving at their respective conclusions concerning the Northfield site. However, it is referred to in the Inspector's report in relation to the index site at paragraph 96, which paragraph is expressly adopted by the Secretary of State in paragraph 13 of her decision letter.
19. I now turn to the allegedly incompatible decisions. In the decision letter relating to the Northfield site the Secretary of State addressed affordable housing mix at paragraphs 16-20 of her decision letter. At paragraph 17 of the Secretary of State's letter she said this:

"However, she agrees with the Inspector, for the reasons given at IR10.39-10.62, and 10.73-10.82, that there is considerable doubt that the proposed affordable housing would adequately address local needs (IR10.124). For the reasons given at IR10.83-10.91, she agrees with the Inspector that none of the factors which might be capable of justifying a lesser provision than the 77:23% split in favour of long-term social rented housing recommended in the Herington Housing Needs Survey... are seen to apply..."

20. At the end of that paragraph she said this:

"She further agrees, for the reasons given in IR10.80-10.82, that it is appropriate to rely on the HHNS, and that it is appropriate for the local authority to seek to secure particular tenure quotas which meet local need."

The reference to HHNS is a reference to the Herington Associates' report. The Secretary of State's overall conclusion was set out at paragraph 28 of her decision letter, which in material part reads as follows:

"However, for the reasons given above, the proposal fails to meet local and national policy regarding the provision of affordable housing, infrastructure and community provision, and it does not provide a high quality of design which respects and enhances the local character and distinctiveness. The Secretary of State therefore considers that the proposal is not in accordance with the development plan overall. She has taken into account the benefits of the proposal, including the delivery of urgently needed housing, but has concluded that these are not sufficient to outweigh the conflict with the development plan and the other planning objections she has identified above. She concludes therefore that the appeal should be dismissed and planning permission refused."

21. There were thus, as it seems to me, two distinct issues addressed by the Secretary of State in paragraph 17 of her letter:

(a) her agreement that a 77/23 per cent split in favour of social rented housing was necessary to adequately address local needs; and

(b) that it was appropriate to rely upon the Herington Report for the purpose of reaching that conclusion.

22. The Inspector noted at paragraph 10.39 of his report that 77/23 tenure split in favour of social rent is the figure identified in the Herington Report as the appropriate mix to address backlog and emerging needs based on incomes in 2003.
23. It was recorded in paragraph 35 of the Inspector's report that the Northfield site was a large strategic site within the meaning of paragraph 24 of PPS3. The effect of PPS3 was considered by the Inspector at paragraphs 10.77 and following. At paragraph 10.79 he said:

"One important change in PPS3 is the recognition of the role of intermediate housing, with paragraph 29 indicating that, where appropriate, separate targets should be set in LDDs for social rented and intermediate affordable housing. The appellants rightly point out that the robust assessment of these categories of tenure sought by PPS3, based on Strategic Housing Market Assessments, has yet to be carried out through the LDF process. While the geographic area to be covered by a 'strategic' housing market assessment is not yet known, a question that arises in this appeal is whether it is appropriate to rely on the HHNS, a local housing market assessment, to justify the particular tenure split sought by the Council."

24. In relation to the Herington Report, the Inspector said this at paragraph 10.80:

"There was no evidence that the HHNS is deficient in terms of rigour or thoroughness. Based on District-wide data, it identified a need for different forms of tenure, quantified in terms of the 77% social rent: 23% intermediate split. The basis for that conclusion has not been challenged, nor are there serious doubts about its continued relevance today. Consequently, it can reasonably be regarded as the best available assessment of local housing needs. Furthermore, affordability in South Gloucestershire does not appear to be a greater problem than in neighbouring areas - if anything, the evidence of slightly lower house prices compared to much of the former Avon county suggests that affordability may be worse in the wider area. Consequently, there is nothing to suggest that strategic housing market assessment sought by PPS3 is likely to find a lower level of need than has been identified in South Gloucestershire. This adds a degree of robustness to the findings of the HHNS."

25. In his overall conclusions the Inspector said at paragraph 10.124:

"There is considerable doubt that the proposed affordable housing would adequately address local needs. The HHNS established that the predominant need (77%) is for social rented housing, with the remaining 23% of households able to afford intermediate provision. The desired split could be achieved under the terms of the S106 Undertaking, but requires grant assistance. The likelihood of grant being available is not known, though in the absence of a viability assessment the baseline assumption is that local needs can be fully met without grant. Under the options likely to be chosen (Stage 1/Option 1 being the most likely), all that is guaranteed without grant is 77% intermediate provision. This would be a disproportionate response to the main area of need, housing for social rent. Consequently there is a real prospect that the proposal would not provide the 'wide choice of housing to meet the needs of the whole community in terms of tenures and price ranges' that is sought by paragraph 3 of DAH. Similarly there is a real risk that it would fail to satisfy the 'local needs' test of SGLP policy H6."

26. I now turn to the index site. It was accepted on behalf of the claimant that the index site was a smaller site for the purposes of paragraph 24 of PPS3. This was the position adopted by the Secretary of State at paragraph 12 of her decision letter, adopting the reasoning of the Inspector at paragraphs 82-91 of his report. In relation to the mix of dwelling types, the Secretary of State said in her decision letter, at paragraph 12:

"For the reasons set out in IR82 - 91, the Secretary of State agrees with the Inspector that the appeal site should be regarded as a smaller site for the purposes of applying paragraph 24 of PPS3. In that context, she concludes that the proposed mix of housing types, size and tenures would contribute to the creation of mixed communities, having regard to the proportion of households that require market or affordable housing and the existing mix of housing in the locality (IR109g). She considers that the proposal complies with national policies in this respect."

27. In relation to affordable housing, she said at paragraphs 13 and 14 of her decision letter:

"13. For the reasons in IR92 - 98, the Secretary of State agrees with the Inspector that there is no conclusive evidence that the tenure split of the affordable housing component of the scheme would fail to reflect local needs, or that any such failure on this non-strategic site would be harmful to any planning objective. She therefore considers the tenure split of the affordable housing to be acceptable.

14. For the reasons in IR100 - 103, the Secretary of State does not accept the basis of the Council's preferred mix of housing types or split of tenure, and agrees with the Inspector that even if that approach were to be employed, the benefits would not in terms of practical outcome outweigh those of the appeal proposal..."

28. Her overall conclusion at paragraph 20 of her decision letter was:

"The Secretary of State agrees with the Inspector's conclusions at IR109. Overall, the Secretary of State concludes that the proposal complies with the development plan and national policy, notably PPS3. There are no material considerations of sufficient weight to indicate that she should determine the appeal other than in accordance with the development plan and national planning policies."

29. As is apparent from the Inspector's report, the case run concerning tenure mix for affordable housing by the Council in relation to the index site was the same as that run in relation to the Northfield site (see paragraphs 33-36 of the Inspector's report). The developers' case was in part similar to that run by the developers in the Northfield Inquiry, but there were additional factors relied upon. At paragraph 57 of his report the Inspector records the developers' submissions in these terms:

"The text of LP Policy H6 does not contain any reference to the HNS. Paragraph 8.193 says that it is just one of the matters to which the Council will have regard. But the HNS does not comply with current guidance as set out in Strategic Housing Market Assessments - Practice Guidance (SHMAPG) (March 2007): It was not produced via a Housing Market Assessment Partnership, involving stakeholders such as housebuilders; it does not consider the future requirement for market housing in addition to affordable housing; and it is not based on an identified housing market area. The survey data deviates from the Core Outputs and process criteria, and as such cannot be considered a robust SHMA upon which to base targets for tenure splits, much less to prescribe them."

30. Although the claimant accepts before me that the index site should be regarded as a smaller site, not as a large strategic site, for the purposes of PPS3, that was not the position that the Council adopted before the Inspector. At paragraph 81 of his report the Inspector notes:

"Paragraph 24 of PPS3, and particularly the question as to whether the site should be regarded as a large strategic site is central to the argument as to what mix of dwelling types and tenures should be provided in this case."

31. The Inspector's conclusions on the type of site are set out at paragraph 84 of his report, where he says this:

"I take the view that within an urban context, on the fringes of a major city, a site of 1.28 hectares with an indicative capacity of 70 should not be regarded as large, either in absolute or relative terms. Of the 14 sites allocated in the local plan, all but 3 are larger in area. The largest, at 177 hectares, is very substantially larger, whereas the smallest, at 1.1 hectare, is of a similar size. There is little doubt that the site is amongst the smaller of the allocations by a wide margin. Even if it were to be concluded that it should be considered a strategic site, it would not be a large strategic site. I therefore conclude that the site is not a large strategic site for the purposes of applying paragraph 24 of PPS3. Consequently there is no presumption in terms of national policy that the development should reflect the proportions of households that require market or affordable housing or achieves a mix of households as well as a mix of tenure and price."

32. Against that background, he turns to the tenure issue and at paragraph 92 of his report:

"PPS3 says there should be a mix of tenure within a mix of housing (para 10); and DAH adds that there should be a good mix of tenures on new developments (para 12). Strategic Housing Market Assessments (SHMA) are identified as the basis of regional advice as to the 'type of product' required, including by reference to tenure (para 24). But neither national policy nor the development plan prescribe any particular form or mix of tenure for affordable housing. The RSS (Policy HO 6) says that a mix of tenure options should be provided that reflects local conditions, but both the SP and the LP, prepared in the context of the former PPG3, are silent as to tenure. It was agreed by all parties that LP Policy H6 is 'tenure neutral', and that LP para 8.193 indicates that a range of needs should be covered, in a range of ways."

33. After considering, and rejecting as unhelpful, a draft SPG relied upon by the claimant before him, he then said this as paragraphs 95-98 of his report:

"95. LP Policy H6 is supported by paragraph 8.193. This makes it clear that, in seeking to negotiate subsidised affordable housing on a site-by-site basis, the Council will have regard to HNS and other up-to-date information held by the Housing Department. In its response to this proposal... the Housing Department requested a 77% / 23% split between social rented and intermediate affordable provision. That is based on the findings of the HNS that social renting is still by far the most important of the tenures required over the plan period - it should account for at least 77.4% of provision, but I am not aware of any other information that contributed to this assessment.

96. Until a Strategic Housing Market Assessment (SHMA) is produced, the HNS is the best information available on housing needs in South Gloucestershire. However, I consider it should be treated with caution. First, it is not a SHMA, as described in the recent (2007) Practice Guidance (SHMAPG). That guidance says that an SHMA will be robust and credible (for the purposes of informing the soundness of a Development Plan Document) if as a minimum it provides all of the core outputs and meets the requirements of all of the process criteria set out in that document (my emphasis). The corollary is that, if that minimum standard is not met, then it may not be considered robust and credible. That is the case with the HNS...

97. Moreover, I consider that it is inappropriate for the HNS to be taken as the sole basis for seeking a specific split of tenure on a single development site. It is too broad a tool that cannot take account of local needs. The Council's preferred split is based on a District-wide assessment. Therefore it does not discriminate between different parts of the District, or between different types of dwellings. Other than the assessments of need for the sub-areas... which show that the District is far from homogeneous in terms of its housing needs, I have no detailed evidence on the matter. But it seems unlikely that the most appropriate tenure split would be the same for all areas and for all types of dwellings. Yet that is the implicit assumption in the Council's approach.

98... While seeking to provide affordable housing with a range of tenures is a proper objective, there is no policy basis for any split, let alone the Council's preferred split. The basis of the preferred split is a survey which does not conform to current guidance, and could be misleading."

34. I now turn to the relevant legal principles. As might be expected, there is a large measure of agreement as to the applicable principles. In summary, they are:

(a) A previous decision is capable of being material for the purposes of section 70(2) of the 1990 Act - a proposition described by Mann LJ, in North Wiltshire District Council v Secretary of State for the Environment [1992] JPL 955, as being "indisputable"; however

(b) Whether it will in fact be material depends, amongst other things, on whether the previous decision is sufficiently similar to engage the principle that like cases should be decided alike;

(c) The test of sufficient similarity has been put in different ways by different divisions of the Court of Appeal over the years, but neither party contends that the outcome of this case depends on which test is applied. I will return to the various formulations below;

(d) Whether an express explanation of an apparent inconsistency is required depends upon the circumstances. If it is obvious, it will not be required, but if the inconsistency is stark and fundamental, then it will not be sufficient to leave the reader to infer the explanation: see JJ Gallagher Ltd v Secretary of State for Transport, Local Government and the Regions and another [2002] EWHC 1812 (Admin), [2002] 4 PLR 32.

35. As to the test for similarity, in the North Wiltshire case Mann LJ formulated it as follows at page 959:

"To state that like cases should be decided alike presupposed that the earlier case was alike and was not distinguishable in some relevant respect. If it was distinguishable then it usually would lack materiality by reference to consistency although it might be material in some other way. Where it was indistinguishable then ordinarily it had to be a material consideration. A practical test for the Inspector was to ask himself whether, if he (the Inspector) decided this case in a particular way was he necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement could not be defined but they would include [amongst other things the] interpretation of policies..."

36. Mann LJ added that an inspector, and thus the Secretary of State, was under no obligation to explain his disagreement with decisions that were distinguishable.
37. In R v Secretary of State for the Environment, Chiltern District Council, Anthony Peter Williams, ex parte David Baber & Others [1996] JPL 1034, in considering an inconsistency argument, the then deputy judge had followed the test as formulated by Mann LJ in North Wiltshire. In the course of his judgment in Baber, Glidewell LJ said this at page 1040:

"He (Glidewell L.J.) suggested that the test which the inspector ought to have posed to himself was slightly different. It was: a previous decision having been drawn to my attention, do I take the view that it may well be sufficiently closely related to the matters in issue in my appeal that I ought to have regard to it and either follow it or distinguish it?"

38. Morritt LJ (as he then was) formulated it in a slightly different way. His formulation appears at page 1041 and was in the following terms:

"He agreed that the practical test was too high if it was posed as being, to the second inspector, 'Whether I necessarily agree or disagree with some critical aspect of the decision in the previous case.' It ought to be, and for present purposes was sufficient if it was, the question: 'may the earlier decision be sufficiently related to the decision I have to make?"

39. Most recently in R (Rank) v East Cambridgeshire District Council [2003] JPL 454 at paragraphs 14-15, Mr George Bartlett QC, sitting as a judge at this court, said in relation to inconsistency:

"14. The question I have to consider is whether the 1988 refusal and the 1989 appeal decision were material considerations that, under s.70(2) of the Town and Country Planning Act 1990, the council should have taken into account. The test of materiality in relation to that positive requirement is, in my judgment, to be derived from the second of the principles stated by Glidewell L.J. in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P. & C.R. 343 at 352:

'The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb "might" I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.'

15. That case concerned materiality in relation to a compulsory purchase order, but Mrs Townsend did not suggest that the principle had no application here. Indeed she relied on it. In my judgment, in the context of what I have decided here, a consideration is material for the purposes of the s.70(2) duty if, firstly, it is not irrelevant to the determination to be made (in the sense of having no connection with the subject-matter of the decision) and, secondly, if it might make a difference in the way in which the authority deals with the application."

40. Against these principles I now turn to the submissions of the claimant. In essence the claimant's submission is that there is no distinction of principle to be made between the two decisions. It is clear that no regard was had, in the decision relating to the index site, to the decision in relation to the Northfield site or, if that decision was considered, no explanation has been given, but should have been, as to why the reasoning in the Northfield decision was not followed. Either way, the decision ought to be quashed. The Northfield decision was plainly material on whichever test was applied, because there was shared critical aspect namely the application and interpretation of Policy H6 when read together with paragraph 8.193 of the Local Plan, PPS3 and the Herington Report. The inconsistency between the two decisions was so stark and fundamental that an explanation had to be given for departing from the Northfield reasoning, both in relation to tenure mix and the value to be attributed to the Herington Report. In addition, the claimant argued that it was being prejudiced because it was being handicapped in performing its duties because of the inconsistent decisions. This last point, in my judgment, would only have substance if the two decisions were in truth indistinguishable. If they were indistinguishable, then the remedy which is contended for would resolve, at least temporarily, the problem identified.
41. Although the claimant sought, for obvious reasons, to emphasise the similarity between the two appeal decisions, in my judgment there are a number of fundamental distinctions between them.
42. First and foremost, Northfield was a large strategic site and the index site is a smaller site for the purpose of paragraph 24 of PPS3. This is important because the approach required to be adopted is different. In relation to the former, the mix is required to mirror the proportions of households that require market or affordable housing, whereas in relation to the latter, mere regard must be had to the proportions of households that require market or affordable housing. This issue was described by the index site inspector as being central to the mix of dwelling types and tenures that had to be provided (see paragraph 81 of his report) and he concluded that the site was not a large strategic site and consequently there was no requirement to reflect the proportions of households (see paragraph 84 of his report). This paragraph was expressly adopted by the Secretary of State in her decision letter (see paragraph 12). Thus, in my judgment there is a fundamental distinction between the two decisions, and one which justifies a different approach to the ratio mix. Whilst it is true to say that this distinction was not expressly identified as being a reason for not following the Northfield decision, in my judgment such an express explanation was not required in the circumstances. The issue as to the nature of the site was fully and rigorously argued. The reason for and importance of the argument was fully appreciated by all concerned and, as Mann LJ said in North Wiltshire, the Inspector, or Secretary of State, is not under an obligation to manifest his disagreement with other decisions that are distinguishable.
43. In relation to the issue concerning the standing of the Herington Report, again in my judgment the claimant's case is to be rejected. In paragraph 96 of his report, which the Secretary of State expressly adopted in paragraph 13 of her decision letter, the index site inspector drew attention to practice guidance that was not referred to or, apparently, considered by the Northfield Inspector or by the Secretary of State when making her decision concerning Northfield. There is no evidence which shows that this material was placed before either the Inspector or the Secretary of State in relation to Northfield. Although it was submitted on behalf of the claimant that it added nothing to what appears in Annex C to PPS3, there is no evidence that such is the case. The document was not even produced to me. Clearly, however, the point made in relation to this guidance was accepted in relation to the indiex site by both by the Inspector and the Secretary of State. I do not see any reason why I should conclude that a decision that did not refer to this document is anything other than distinguishable from one that did.
44. There is one other fundamental difference, in my judgment, between the two decisions, which again makes the two plainly distinguishable. As the Inspector said in relation to the index site in his report:

"102. The Council's witness, Mr Fox, indicated that for intermediate housing the Council would be flexible over the exact type and mix of housing units... Nonetheless, he calculated the number of affordable units of different types that would be required within a development of 152 dwellings, using the percentage split identified in the HNS table 6.1 in order to match the identified housing need... But at the Inquiry he acknowledged that, in practice, this number could not be incorporated, for the simple reason that the larger units would take up considerably more space than the small flats they would replace. Consequently, I consider the figures to be of no value as a comparison, and the number achievable under the Council's approach would be less.

103. I take as an example the scenario if the site were to be developed with the 70 dwellings for which it is allocated, which assumes a wider mix of housing types. There may be potential for the site to accommodate more dwellings than this but, nonetheless, it is a useful exercise for comparative purposes. If one-third were affordable, in line with LP Policy H6, some 23 affordable dwellings would be provided. If then the Council's preferred proportion of tenures were to be applied, that would result in about 18 (77%) being social rented. Applying the Council's preferred proportion of house types would result in about 16 two- three- & four-bedroom houses being provided in the mix. I do not doubt that these dwellings would be of benefit to the overall affordable housing provision in the District. But any such benefit must be weighed against that of providing 52 affordable dwellings under the appeal proposals, 29 more in total, but just 5 fewer social rented."

45. In the index site inquiry the Inspector concluded that it would make no material difference whether the claimant's preferred mix ratio 77/23 was adopted or not. This analysis was expressly adopted by the Secretary of State in paragraph 14 of her decision letter.
46. In summary, in my judgment the two decisions are plainly distinguishable on at least the grounds that I have set out above. In my judgment, the explanation is obvious and a formal explanation of it is not necessary. I would dismiss these applications.