England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/01/2008

Mr Justice Wyn Williams :

1. In these proceedings the Claimant seeks an order pursuant to section 287 of the Town and Country Planning Act 1990 quashing, in part, the North Warwickshire Local Plan ("the Plan"). The Defendant is the local planning authority and it adopted the Plan on 4 July 2006. Those parts of the Plan which the Claimant seeks to quash are set out in the Outline Submissions of Counsel for the Claimant. It will be necessary to give specific consideration to the effect of making a quashing order in the terms sought later in this judgment.

Background Facts

2. The Claimant is a limited company primarily concerned with the winning and working of coal. However, it also has associated commercial interests of land owning and property development. It is the owner of the freehold interest in areas of land at Polesworth and Dordon which are settlements which lie within the area covered by the Plan. The area of land owned by the Claimant (hereinafter referred to as "the site") is part of a former colliery known as Orchard Colliery. The aim of the Claimant is to develop the site for housing.
3. In February 2003 the Defendant published and placed on deposit a draft of the Plan. Objections were made, as was to be expected, and in April 2004 a revised draft Plan was published and placed on deposit. Again objections were made and, in consequence, a public local inquiry was convened to consider those objections. The inquiry took place between 11 January and 24 March 2005 and was presided over by a duly appointed Inspector. During the course of the inquiry the Claimant appeared so as to register an objection to the fact that the site had not been allocated for residential development within the draft Plan.
4. In August 2005 the Inspector produced his report. He recommended that land be made available in the Polesworth/Dordon area for up to 425 dwellings to be provided in the period after 2007 but before 2011. He also gave a clear indication that of the potential sites for such a development within Polesworth/Dordon the site owned by the Claimant was the most suitable for development.
5. The Defendant considered the Inspector's report as it was bound to do. It first considered it at a meeting of its Executive Board on 8 November 2005. At that meeting, a decision concerning all housing matters was deferred so as to enable the Government Office for the West Midlands to be consulted. On 12 December 2005 the Executive Board further considered housing matters in the light of the Inspector's report. In summary, the Defendant decided against accepting the Inspector's recommendation as set out in paragraph 4 above.
6. In February 2006 the Defendant produced proposed modifications to the revised draft Plan. The Claimant registered an objection. I will deal fully with the objection and the policies to which it related later in this judgment. On 9 May 2006 the Defendant considered the Claimant's objections to the proposed modifications but rejected them. As I have said, on 4 July 2006 the Defendant adopted the Plan.
7. The Claimant commenced these proceedings by a Claim Form issued on 11 August 2006.

Relevant Statutory Provisions

8. As I have said the claim is brought under section 287 of the Town and Country Planning Act 1990. It is common ground that under that provision the Court has jurisdiction to quash the local plan wholly or in part but only if the Court finds (a) that adoption of the local plan was outside the appropriate powers of the Defendant and/or (b) that the interests of the Claimant have been substantially prejudiced by a failure to comply with a requirement of the Act or regulations made thereunder. It is also common ground that even if the criteria for making a quashing order are met the court has a discretion as to whether it should make such an order.
9. The only Regulations to which I need refer are the Town and Country Planning (Development Plan) Regulations 1999. By virtue of Regulation 27(1), a local planning authority is required to publish a statement of its reasons if it decides to reject the recommendations of an inspector following a local plan inquiry.

The grounds of challenge

10. The Claimant relies upon three grounds to justify a quashing order in this case. Firstly, it alleges that the Defendant erred in law in failing to have regard to a material consideration when it decided to adopt the local plan. Secondly, it alleges that the Defendant erred in law in that it failed to give adequate reasons for rejecting the recommendation of the Inspector. The third ground relied upon is that the Defendant acted perversely and, therefore, unlawfully, in its decision to adopt the plan in the form in which it was adopted. As Mr. Hobson QC, acknowledges ground 3 is simply another way of formulating the first ground. I shall deal with grounds 1 and 3 as if they were one.
11. It seems to me that my starting point is the report prepared by the Inspector following the local plan inquiry. The relevant extracts of that report are contained within the Trial Bundle between pages 40 and 71.
12. The main thrust of what the Inspector reported was as follows. Firstly local plans should identify sites for housing sufficient to meet housing requirements during the plan period. Secondly, the plan period under consideration was 1996 to 2011. Thirdly, there was need to provide between 3000 and 3200 dwellings in that time period in the Plan area. Fourthly, the Plan as composed by the Defendant did not meet that need. In the view of the Inspector there was a shortfall which he regarded as significant. It led him to express himself in the following way:-

"This, to my mind, is so critical that it warrants reference in the Plan's strategy, not least to give clear voice to the need for the Council to progress with urgency the formulation of a Core Policy Development Plan Document dealing with housing land allocations in order to ensure that an adequate planned supply of housing can be maintained. I accordingly recommend a core policy supported by reasoned justification to indicate not only what the residual requirement is, but how it has been calculated and the broad manner in which it is intended to be met, but also to express commitment to formulation of the relevant DPD at the earliest stage in LDF preparation."

In that extract references to "Core Policy Development Plan Document", "DPD" and "LDF" are references to local plan documents to be prepared under the Planning and Compulsory Purchase Act 2004. In the light of the factors to which I have just drawn attention the Inspector formulated a core policy which he recommended should be included within the Plan. It was in the following terms: -

"CORE POLICY A: HOUSING LAND REQUIREMENT

Planned provision will be made for between 3000 and 3200 dwellings to be completed within the plan area in the period 1996-2011. To this end, some 27 HA of land will be made the subject of site-specific allocations and proposals for housing development to meet the residual requirement of between 900 and 1100 completed dwellings in the period end March 2004 to end March 2011."

There followed a table in which the Inspector explained how he arrived at the figures 900 to 1100 for the period from March 2004 to March 2011.

13. In a separate section of his report the Inspector dealt with the proposed "POLICY SHG1- HOUSING LAND ALLOCATIONS". In this section he identified a number of potential housing sites by categories. I need not explain his analysis in detail. It suffices that I say that sites from categories 1 and 2 were sites which the Inspector recommended should be taken forward for allocation for housing within the Plan period. Category 3 sites he described as follows: -

"Sites in this category are also in suitable locations for allocation but are subject to constraints (which I specify) that, in my estimation, render them either unavailable or undeliverable within the Plan period, or (mainly in the case of green field sites) are suitable only if no sequentially preferable alternatives can be identified. It is in this category that I include (alongside certain other of the Council's proposed sites) the most suitable of the sites advanced by the objectors."

14. Having identified categories, the Inspector recommended that it was sites from categories 1 and 2 that should be taken for all specific allocations in the Plan. However, he also recommended a specific policy which included within it a sizeable non-site specific allocation in the settlements of Polesworth/Dordon to ensure that a suitably balanced distribution of housing allocations could be achieved. The suggested policy was in the following terms: -

"PROPOSAL A: PLANNED HOUSING PROVISION AT POLESWORTH/DORDON

Planned provision will be made at Polesworth/Dordon for the phased development in the post 2007 period of up to 425 dwellings with necessary community infrastructure, environmental works, access and travel and transport facilities. This will be brought forward in site specific form in the Core Policies Development Plan Document to be produced by the Council in accordance with the approved Local Development Scheme for the Borough."

15. In the section of his report which preceded the formulation of that recommended policy, the Inspector gave his views upon a number of sites in the Polesworth/Dordon area. Having done so he offered the firm conclusion that land to the east of those settlements which he described as "part of former Orchard Colliery" offered the greatest potential to accommodate development in a way that could add positively to local landscape and the function of Polesworth/Dordon as a main town. The reference to "main town" was a reference to the status afforded to Polesworth/Dordon in the County Structure Plan.
16. As can be seen from the foregoing the recommendations of the Inspector were trenchant and unequivocal.
17. As I have said, the Inspector's views were first considered by the Executive Board of the Defendant on 8 November 2005 but on that date no conclusions were reached upon them.
18. On the 12 December 2005 the Executive Board received a report from officers of the Defendant in which suggestions were made about the Inspector's recommendations. The report informed members that a meeting had been held on 22 November 2005 between officers of the Defendant and representatives of the Government Office for the West Midlands and the County Council. At that meeting two issues were considered, namely (1) the number of housing units required for the remainder of the Plan period and in the light of that whether a housing allocation of up to 425 units was required at Polesworth/Dordon and (2) the distribution of housing.
19. In relation to housing requirements the officers drew attention to the fact that a letter had been received from the Government Office after the conclusion of the Inquiry but before the Inspector had reported. The letter was dated 16 June 2005. It made two points which were of potential relevance to the Inspector's recommendations. The first point suggested that housing allocations for the Plan should be considered for the period 2001 to 2011. The second point made in the letter was that certain figures in a document entitled "Regional Spatial Strategy" should be considered as maxima (the details do not matter for current purposes).
20. In the light of this information the report to the Executive Board suggested that the overall requirement for housing within the plan period should be reduced from 3200 to 1850. In the light of that fact and taking account of the possibility that the Inspector had used figures which were "minima" as opposed to "maxima" the report suggested that the true shortfall in housing provision was 271 units. The officers accordingly recommended to the Executive Board that:….since the difference is only 271 units it is not now necessary to modify the Local Plan by the inclusion of the Inspector's recommendation for proposal A at this stage." The reference to proposal A was, of course, a reference to the suggested policy for a housing allocation at Polesworth/Dordon.
21. So far as the core policy suggested by the Inspector was concerned the suggestion by the Defendant's officers was that it be accepted subject to revision of the figures contained within it. They suggested that the policy should read as follows:-

"Planned provision will be made for a maximum of 1850 dwellings to be completed within the plan area in the period 2001-2011. To this end, 16 hectares of land will be made the subject of site specific allocations and proposals for housing development to meet the residual requirement of a maximum of 570 completed dwellings in the period end March 2005 to end March 2011."

22. The Board accepted the recommendations of its officers. There followed the publication of proposed modifications to the Plan. The proposed modifications were contained in a document which also listed those recommendations of the Inspector which the Defendant did not accept and the reasons why that decision had been reached. In relation to the Inspector's recommendation for an unspecified allocation for housing at Polesworth/Dordon the Defendant wrote:-

"This recommendation not to be taken forward as a proposal at the present time due to the change in residual housing requirement. A future housing DPD will consider this issue.

23. As I have said the Defendant accepted the recommendation of the Inspector that there was a need for a core policy subject to the amendments I have indicated. As its reasons for departing from the Inspector's recommendation the Defendant wrote: -

"Change to reflect a start date of 2001 and the consequential changes to the number of dwellings required over the remaining plan period."

24. The Claimant registered objections to these modifications. There were three in total. I need not set them out in any more detail than did the Defendant's officers when they produced a document for a meeting of the Executive Board on 9 May 2006. It was at that meeting that the objections to the proposed modifications were considered. The summary of the three objections are listed by me in the same order as they were listed by the Defendant's officers in the documentation they produced. The officers summarised the first objection of the Claimant as follows: -

"Para 6.8 of PPG 12 requires that provision be made for a period of 10 yrs post expected adoption date. As the LP cannot be adopted before 2006, it should therefore make housing provision for a minimum period of up to 2016. The context in which the Inspector's recommendations were made has changed – it is predicted that the revision of the RSS will not be submitted to the SoS until June 2007. It cannot therefore be reasonably expected to be adopted until 2008. Because the revision will inform the LDF, the adoption of the LDF will not be achieved by January 2009. The LP should therefore allocate sufficient new sites to provide a housing supply for the period up to 2012. It may be more appropriate to make sufficient allocations up to 2016 in line with PPG 12. The Government Office letter of June 2005 explains that RSS County housing requirements are to be apportioned using Structure Plan distribution to determine district level housing requirements. For the period 2001 – 2021 RSS requires an annual average of 1350 dwellings in Warwickshire. The SP distributes 10.3% of the County requirement to North Warwickshire. Therefore an annual average of 139 dwellings should be provided in North Warwickshire in the post 2011 period.

It is therefore requested that Core Policy A be amended to require the provision of 2550 dwellings to be completed in the period 2011 to 2016. New site specific allocations will be required to meet the residual requirement of 1046 dwellings."

25. The response, for consideration by the Executive Board, was as follows: -

"The Inspector has considered this issue [in] para 2.3 his Report. The Council has committed in reports brought to Board previously that a Housing DPD will be produced in order to take this issue forward."

26. The Defendant's officers summarised the second objection registered by the Claimant in the following way:-

"Inspector's recommendation on the residual amount of housing required to meet needs in the Plan period equate to annual average provision of between 128 to 156 dwellings. He recommended that the Proposal A site at Polesworth/Dordon be allocated to provide 425 dwellings after 2007. In effect the Inspector recommended that sufficient allocations be made for immediate development to provide 2.5-3yrs supply up to 2007. The further allocation recommended for the post 2007 period intended to provide a further 3-3.5yrs supply up to 2010. Purpose of recommending such a supply was to meet the need until the LDF could be adopted. Inspector's recommendations need to be considered in this context. If the same reasoning is applied to the 2005 RSS based housing requirements and supply figures set out in table 1 a shortfall in housing allocations can only continue to be acceptable provided sufficient allocations are made to meet needs until 2010. Residual housing requirement to be met by new allocations identified at 2005 is 646 dwellings, an annual average of 108 dwellings. To provide a supply to meet needs until the LDF can begin to deliver new housing, sites with a minimum capacity of 540 dwellings should be allocated. The LP fails to do so. 296 dwellings only provide a 2.7yrs supply which leads to an inadequate supply of housing for the period 2008-2010. The Local Plan should therefore allocate additional sites to provide an extra 244 dwellings. This not withstanding, while the approach of the Inspector is understood the context in which it was formulated has changed, it is not expected that the RSS will be submitted to the SoS until June 2007 and therefore it is not likely to be adopted until 2008. The LDF is therefore likely to be delayed for a further 1-2yrs. The LP therefore needs to allocate new sites to provide a housing supply for the period of up to 2012. As the circumstances which persuaded the Inspector to recommend making a level of new site allocations which do not accord with PPG12 have changed, it may be more appropriate to make sufficient new site allocations which do accord with this guidance. Para 6.8 of PPG12 requires that provision be made for a period of 10yrs post expected adoption. This would mean until 2016."

27. The response to this objection was:-

"The RSS and in particular the letter from Government Office supersedes the Inspector's reasoning in justifying the allocation of 425 units to Polesworth & Dordon. The Inspector was working within the remit of minimum housing figures whereas latest advice is that for Shire Districts such as North Warwickshire a maximum figure should be used. An allocation of 425 units will take the housing figures over the maximum. The Council's stance is supported by the GOWM".

28. The final objection made by the Claimant was summarised as : -

"The Local Plan makes inadequate housing provision. There will be a shortfall in housing sites for the post 2008 period. The forthcoming LDF will not be able to address this shortfall until 2010 at the earliest and probably not until significantly later. In these circumstances it is essential that the Local Plan allocates more sustainable land for housing development. The Inspector made a firm recommendation (H157) that land be allocated at Polesworth/Dordon for 425 dwellings. He did not define a particular land parcel but the Inspector found that UK Coal land east of Dordon was the site at Polesworth/Dordon put before him which he found to be acceptable. It is therefore requested that the Local Plan be amended by the inclusion of an allocation of 425 on the UK Coal east of Dordon. In addition supporting text should be included in the Local Plan which explains that a development brief is to be prepared which will identify the precise extent of the land to be developed in the period up to 2011."

29. The response to this objection read: -

"Although he stated that the site owned by UK Coal may be more acceptable than other sites that were before him at the Inquiry, the Inspector also stated however that there were a number of issues that needed further careful consideration. Housing numbers was therefore allocated towards Polesworth and Dordon but without a specific site being shown. This would need to come forward in the LDF and will be considered in the production of the Housing DPD."

30. The Executive Board accepted the recommendations of its officers and rejected the objections made by the Claimant to the published modifications. Thereafter, the Defendant adopted the Plan.
31. As I have said the Claimant complains that in adopting the Plan in the form that it did the Defendant failed to have regard to a material consideration. The material consideration identified by the Claimant is set out in paragraphs 17 and 18 of the Skeleton Argument on behalf of the Claimant. In summary, Mr Hobson QC and Mr Fraser-Urquhart submit that the Defendant failed to have regard to the Claimant's objections to the proposed modifications. Those objections, Counsel submit, raised expressly the fact that the timing which the Inspector had assumed for the coming forward of further development plans in accordance with the 2004 Act had been overtaken by events and that those development plans would emerge considerably later than the Inspector had assumed. It followed that there was necessarily a gap in the provision of land allocated for housing. The Claimant submits that this issue of timing with a consequent inevitable under-provision of housing land was not taken into account prior to the Defendant adopting the Plan.
32. I accept that one indicator as to whether or not this issue was taken into account is the responses formulated by the officers of the Defendant to the objections made by the Claimant. I have set out each of the relevant objections and responses above. I accept that it is difficult to discern from the responses that specific attention was paid to the Claimant's timing point. It seems to me, however, that this must be seen very much in context. The context in late 2005 and early to mid 2006 (the relevant time period in which to judge whether or not the Defendant failed to have regard to a material consideration) was that the Defendant did not accept that there was a significant shortfall in housing so that, no doubt, it did not consider the fact that the development of local plans under the 2004 Act might be delayed to be of any particular importance. It seems to me that from the moment in time when it published the proposed modifications the Defendant was proceeding on the basis that the Inspector's views upon the housing shortfall had been overtaken by events and that, in truth, the shortfall was insignificant.
33. It is for the Defendant, not this Court, to exercise planning judgment. It is for the Defendant to attach such weight as it considers appropriate to factors which it identifies as material. Having reached the conclusion, as it clearly did, that the housing shortfall was not significant it does not seem to me that there was a failure on the part of the Defendant to take into account the consideration which the Claimant presses as material in any meaningful way. As Mr Dove QC puts it, in the absence of a shortfall that required addressing the question of the timing of the production of the DPD was irrelevant.
34. I am not persuaded that the Claimant has proved that the Defendant failed to take into account a material consideration given the context which I have set out above.
35. Proceeding, as it was, on the basis that the shortfall in housing was not significant I do not see how it can be said that the Defendant was perverse in adopting the Plan. I appreciate, of course, that the Defendant, itself, identified a shortfall and I will return to this issue when considering the duty to give reasons in the paragraphs which follow in this judgment. However, to repeat, the clear view of the Defendant was that the shortfall was not significant and, on that basis, it was not perverse or unreasonable to adopt the Plan.
36. The second ground of challenge advanced by the Claimant is the alleged failure on the part of the Defendant to give reasons for departing from the recommendations of the Inspector. There is no dispute about the scope of the duty to give reasons. I content myself, as did Mr Hobson QC, with an extract from the speech of Lord Browne of Eaton-under-Heywood in South Buckinghamshire District Council v Porter (No.2) [2004] UKHL 33.

"The reasons for the decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues," disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inferences will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon such future applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reason challenge will only succeed if the aggrieved party can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

37. In paragraphs 12 to 15 above I set out the Inspector's recommendations and his essential reasoning for those recommendations.
38. It was clearly open to the Defendant to depart from the Inspector's recommendations. He had proceeded on the basis of a shortfall described by him as significant calculated by reference to a time period 1996 to 2011. Once it was concluded by the Defendant that the housing shortfall should be calculated by reference to the period 2001 to 2011, to repeat, the Defendant was entitled to reach different conclusions from those expressed by the Inspector. Further, the reasons provided by the Defendant made it clear that a central plank of its stance was the fact that the calculation of housing requirement should be based upon a start date of 2001 as opposed to 1996.
39. What was wholly absent from the reasons provided by the Defendant for rejecting the Inspector's recommendations, however, was any acknowledgement that even allowing for the fact that the appropriate start date was 2001 there was still a shortfall in housing provision for the Plan period. In the report provided by the officers to the Executive Board prior to the meeting of December 2005 the officers identified a shortfall of 271 units. It is now accepted that this shortfall should have been calculated to be 350 units. The Inspector had calculated a shortfall of 893 units and submissions were advanced to me that the true comparison figure with 893 units was nearly 600 units even allowing for the start date of 2001. It is not for me to resolve these issues of precise calculations and comparisons. It suffices for the purposes of this judgment that I record that the Defendant's own analysis (if properly carried out) identified a shortfall of 350 houses during the period of the Plan. It was, of course, a matter of planning judgment for the Defendant to assess whether or not such a shortfall was significant. There is no attempt made, however, in the officers' report to the Executive Board to explain why such a shortfall was insignificant or inconsequential. In the reasons published for rejecting the Inspector's recommendations, as I have said, there was no acceptance of the existence of any shortfall and therefore no attempt to explain why the shortfall was insignificant.
40. In those circumstances, in my judgment, the Defendant did fail to provide adequate reasons for its decision to reject the Inspector's recommendation when the word adequate is understood in the way described by Lord Brown in Porter (No.2).
41. As Lord Brown stressed, however, it is not sufficient to establish a failure to give adequate reasons in order that a challenge can be made successfully. It is also necessary to show that the Claimant has been substantially prejudiced, genuinely, by the failure to provide an adequately reasoned decision. It is to that issue that I now turn.
42. I do not see how the Claimant can possibly sustain an argument that it has been substantially prejudiced. The issue of prejudice is not addressed in the Written Skeleton argument of the Claimant. With respect to Mr Hobson QC he did not identify any substantial prejudice consequent upon a failure to give adequate reasons during his oral submissions. That is not surprising. If the Inspector's recommendations had been accepted in their entirety there would have been a specific policy in the Plan which allocated housing at Polesworth/Dordon and there would be an indication in the reasoned justification for this policy that development should take place on the east side of the settlement. However it is clear that the Defendant was fully entitled to reject the Inspector's assessment of the need for further housing provision. I say that since, of course, it is common ground that the Defendant was entitled to proceed on an assessment of need based upon a start date of 2001 as opposed to 1996. Even if, therefore, policies in the form suggested by the Inspector had been incorporated into the Plan they would have been so incorporated on the basis of the need for much less housing. In those circumstances it simply cannot be said, in my judgment, that the Plan would probably have included indications that development should take place on or even in the vicinity of the Claimant's land.
43. Perhaps the most potent way of testing whether or not the Claimant has been substantially prejudiced is by looking at the relief it seeks. When Mr Hobson QC opened the case for the Claimant he was seeking the quashing of the Plan by the removal of specific words within Core Policy 2(1) and, further, the deletion of Policy HSG3. By the conclusion of the oral submissions he was no longer pursuing the deletion of Policy HSG3. In consequence he was seeking the removal of the words "within the development boundaries of which" from Core Policy 2(1).
44. The deletion of those from Core Policy 2(1) would achieve nothing, in substance, for the Claimant. The reality is that in any planning application the Claimant has all that the Inspector said about its site and all its arguments about housing provision and/or the lack of it in the light of emerging plans. Those arguments can and, no doubt, will be deployed. They would certainly not be advanced by the deletion of the words identified from Core Policy 2(1) of the Plan.
45. I turn, finally, to the issue of discretion. If I had found that the Defendant had failed to take into account a material factor and acted unlawfully in that sense the need for the Claimant to show substantial prejudice would not arise as a statutory requirement. Nonetheless, this Court still has a discretion about whether or not to grant relief. In summary, I accept the submission of Mr Dove that the Claimant is in no worse position than it would have been had the Defendant accepted, as material, his representations about timing and housing supply. Even if that is too robust an approach I have to consider the consequences of the quashing order which the Claimant seeks. The quashing order would remove from Core Policy 2(1) the concept of development boundaries. The policy, if amended in the way suggested by the Claimant, would read in a way which, in my experience, would be virtually unique. There is at least the possibility that the policy, in its amended form, would encourage widespread uncertainty as to what may or may not be permitted development not just in terms of housing development but in relation to those other forms of development which are specified in Core Policy 2. Further, I take the view that following a quashing order no further work would be possible on this Plan so that this Plan would remain in the form in which it was left after quashing for its whole period. I do not elaborate upon the reasons why that is so since I understand that proposition to be accepted by both parties. In my judgment the quashing of the Plan in the manner suggested would be a disproportionate consequence of such prejudice as the Claimant has suffered. As a matter of discretion, therefore, I would have refused relief in this case even if persuaded that the Defendant had acted unlawfully in failing to take into account a material consideration.
46. It follows from what I have said that this challenge fails.