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
		9 July 2009

1. THE DEPUTY JUDGE: In this application the claimant applies to quash the decision of an Inspector, on behalf of the first defendant, dismissing its appeal from the refusal by the second defendant of planning permission for a continuing care and retirement community development, Mayland in Essex.
2. Mr Andrew Fraser-Urquhart, who appears for the claimant, relies on the following grounds: first, that the Inspector made a mistake of fact as to the description of the proposed development; second, that the Inspector erred in treating the proposed development as a mixed class C2/C3 use, rather than a C2 use; third, that the Inspector erred in refusing to take into account parts of a unilateral obligation restricting the use of the proposed market bungalows to what would have been a C2 use; fourth, that the Inspector failed to take into account government policy in PPS3 in support of the provision of housing for the elderly; and fifth, that the Inspector erred in his consideration of need for a site to provide development of the kind proposed for extra care housing.

Background

3. The site comprised disuse nursery land in designated countryside subject to Development Plan policies of restraint. The proposed development comprised a 60-bed nursing home, a community building, 34 bungalows and 14 affordables housing units for the elderly. The application was in outline with all matters except for access reserved.
4. The application was refused by the second defendant on 21 May 2008. The claimant appealed. The hearing was held on 22 October 2008. The appeal was dismissed by letter dated 10 November 2008.

The decision letter

5. In paragraph 3 the Inspector dealt with procedural matters, including reference to the supporting drawings, and, in particular, a subsequently submitted section drawing:

"As the appeal drawing showing approximate sections also indicates that these units would be two storeys high, I have determined the appeal on this basis."

It is common ground in this court that the parameters of height required for an outline application of the buildings was properly treated by the Inspector and accepted by the parties as shown on that sections plan. I refer to that later.

6. At paragraph 4 the Inspector referred to three separate unilateral undertakings. He described them as follows:

"These relate to developer contributions towards the cost of highway improvements, including local bus stops, implementation of a Green Travel Plan (GTP) and affordable housing. I have taken these into account when arriving at my decision."

Again it is common ground that the reference to a unilateral undertaking relating to affordable housing was a reference to the draft unilateral undertaking at the hearing, which included the provision of affordable housing, but also occupation of the market bungalows. Again I will refer to that later.

7. In paragraphs 5 and 6 he described the appeal site and proposal. In paragraph 6 he said:

"The site would be redeveloped to provide a CCRC, [continuing care and retirement community] with a three-storey 60 bed nursing home located at the northern end of the site and a two-storey community building located in the south western corner."

At paragraphs 7 to 9 he dealt with the planning policy background. In paragraph 10 he set out the main issue as follows:

"I consider these to be whether there would be any conflict with the development plan policies for the area relating to development in the open countryside and, if so, whether there are any other material considerations sufficient to outweigh any such conflict."

He then gave his reasons in paragraph 11:

"Central to the appellant's argument that the proposal does not fall to be considered against the local plan's housing policies is that it is for a proposed continuing care and retirement community (CCRC), which is considered to be an out-of-the-ordinary and very special type of C2 (residential institutions) use.

12. A feature of CCRCs is that the level of care offered is tailored to meet an individual's needs and would increase progressively as personal circumstances changed. Prospective occupants of the proposed leasehold bungalows would be required to purchase a minimum care package and it is claimed that this is evidence of these dwellings being 'tied' to the care provided by an on-site care team and nursing home.

13. In the example where Counsel's Opinion has been cited, the dispute was whether that particular scheme fell to be determined as a C2 or a C3 (dwelling houses) use. The dispute here is whether the proposal is a C2 use or a C2/C3 mixed use.

14. I also note that qualification for entry to the example scheme is that one of the approved occupiers of the leasehold units would be at least 65 years old (with exceptions) whereas, under the appeal proposal, the age qualification is generally 55 years. The appellant acknowledges that older residents are more likely to require a greater level of care and this is a significant difference

between the schemes, in my view. I also note that much of the evidence about accommodation needs of the elderly in the district relates to persons over the age of 65, not 55 and over.

15. With respect to the appeal proposal, I heard that the minimum package could be as little as two hours' care, and that this could be provided in the form of basis domestic help, such as cleaning and shopping. In the absence of any further detailed information about the proposed care package, it appears to me that the main qualification for occupancy of the proposed leasehold bungalows

would be age rather than any pre-existing medical condition requiring extra care.

16. In the example scheme previously referred to, the evidence indicated that the leasehold units would be closely tied to the nursing home; they would not be independent of it in any meaningful sense. With respect to the appeal proposal, I am satisfied that, whilst this would apply to the affordable housing units, the evidence does not persuade me that this would be the case with the

proposed leasehold bungalows.

17. Therefore, I find that the proposal is for a C2/C3 mixed use, not solely for a C2 use, and that the proposed leasehold bungalows fall to be assessed against LP policy H1."

In paragraphs 18 to 22 he examined the Development Plan and, in particular, the locational implications for sustainability, concluding at paragraph 21:

"Therefore, I conclude that the proposal would fail to contribute to a sustainable pattern of development and, as a consequence, would be contrary to LP policies S2, H1 and T1. I have had regard to the local plan settlement hierarchy, Mayland's rural hinterland and the submitted unilateral undertakings relating to highway improvements and implementation of a GTP [Green Travel Plan]. However none of these matters are sufficient to outweigh adopted local plan policies and the thrust of government advice and guidance relating to development in the open countryside.

22. I now turn to consider whether any of the other material considerations raised are sufficient to outweigh the conflict with the development plan."

8. In paragraphs 23 to 33 he examined other material considerations for the purposes of section 38(6) of the Planning and Compulsory Purchase Act 2004, to consider whether the material considerations outweighed a decision taken in accordance with the Development Plan. That included at paragraph 23:

"The proposal would meet a recognised strategic need to care for older people migrating into the district over the next three years. Whilst this is not disputed, I heard that the Council would be able to meet some of this need by expanding existing facilities at various locations within the district, including those in the Mayland area."

and continuing at paragraph 25:

"The appellant considers that there is no available site, brownfield or otherwise in or close to Maldon (the Council's preferred location), which meets the requirements for a CCRC development. However, such a site could emerge during the accelerated Local Development Framework process over the next two years. As the need identified by the Strategic Market Housing Assessment is to be met over a three year period, there is no imperative, in my view, for permitting the proposal in such an unsustainable location."

In paragraph 26 he referred to other decisions. At paragraph 27 he referred to the dilapidated condition of the site, and continued at paragraph 28:

"I also accept that the site is not located within open countryside remote from any settlement. Nevertheless, one of the government's and the local plan's key sustainable development objectives, as expressed by LP policy S2, is to protect the open countryside for its own sake. Also, and contrary to policies CC6 and BE1, I consider that the proposed large, three storey nursing home would be out of scale on this site, even though it would be located towards the rear and may not be particularly conspicuous in views from Steeple Road."

He then referred to countryside and landscape policies and continued at paragraph 30:

"The affordable housing provision proposed as part of the appeal scheme is to be secured by means of a unilateral undertaking. At the hearing the Council indicated that, if I were minded to allow the appeal, provision should be based on a set price or formula based on the total cost indicators set by the Housing Corporation. The parties indicated that it would be a relatively simple matter to amend the wording of the submitted draft undertaking to reflect this and I gave the appellants time after the hearing had closed to submit an amended version.

31. Both parties exceeded their brief by addressing additional matters to the one identified at the hearing and have singularly failed to reach agreement on the specific point at issue. These other matters amount to new evidence submitted after the close of the hearing and I have taken neither the Council's representations nor the amended unilateral undertaking into consideration.

32. On the specific point at issue, I note that the wording in the draft unilateral undertaking is based on the Council's own S106 Agreement template. Therefore, I am satisfied that the draft undertaking would have been adequate to deliver the affordable housing as proposed. I have also had regard to the professional local partnership which would manage the proposed CCRC including delivery and management of the proposed affordable housing."

33. However, I conclude that the provision of 14 affordable housing units would not be sufficient, on its own, to outweigh the adopted local plan policies relating to development in the open countryside."

1

He set out his overall conclusions in paragraph 34:

"My overall conclusions, therefore, are as follows: The appeal site is outside the development boundary for Mayland in an unsustainable, open countryside location which ought to be protected for its own sake; the leasehold bungalows would not conform to local plan housing policies and the proposed nursing

home would be on a scale which would be out of keeping with its rural setting."

35. I have given careful consideration to the other material considerations raised including the provision of affordable housing units secured by means of a unilateral undertaking. However, my conclusion is that none of these matters either individually or collectively, is sufficient to outweigh the adopted development plan policies for the area."

Ground one: mistake of fact

Submissions

9. I have already noted earlier in this judgment that the Inspector dealt with the application on the basis of the sections at page 21 of the bundle. That section plan was submitted after the application had been made. It is described as "approximate sections". It shows what is described as the highest part of various buildings, including the nursing home. The nursing home is described as two plus half storey through the highest part of the building. What is shown is two full storeys, measuring just over three metres each, and above that a roof area up to 12 metres, with nursing accommodation and a mansard window arrangement. Thus there are three floors of accommodation shown in the section.
10. Put shortly, Mr Fraser-Urquhart's submission is that the application showed a proposed nursing home which was two storeys with an attic half storey at the highest point. It could not properly be described as three storeys. He submits that this demonstrates that the Inspector made a mistake in his conclusion on which he relied expressly in the passages in the decision letter, to which I have referred, and thus his decision is flawed to that extent.
11. Mr David Forsdick, who appears for the first defendant, submits that what was shown was a building with three storeys, albeit one of them was a roof storey, and it was accurately described as three storeys. In the decision letter the Inspector expressly referred to the sections plan and made clear he was dealing with it on that basis. However it is described, it is plain in his submission that this Inspector was dealing with the nursing building as shown on the sections plan. He adds that there is no evidence before the inquiry that otherwise indicated what could be described as three storeys.

Consideration

12. In my judgment there is no evidence of any mistake of fact in this case. The Inspector was entitled to have regard to the parameters in the nursing home building in accordance with the sections plan. On any view it would be large. That he described it as three storeys is accurate in the sense that it had three storeys of accommodation, albeit described on the sections as two-and-a-half storeys. There was no evidence recorded that the height of the proposed building could be significantly reduced, having regard to the accommodation and other parameters which are not before this court. He was evidently satisfied accordingly that this building would be large in scale and objectionable in the terms he indicated in his decision letter.
13. For my part, I am entirely satisfied that the Inspector had the relevant sections plan in mind and described it in the way he did, referring to what was properly part of the application. This ground accordingly fails.

Ground two: the Use Classes Order

14. The Town and Country Planning (Use Classes) Order 1987 sets out classes of development and changes of use which do not constitute development requiring planning permission. Two of those classes are class C2 and C3 dealing respectively with residential institutions and dwelling-houses. So far as relevant to the present case, class C3 provides:

"Dwellinghouses

Use as a dwellinghouse (whether or not as a sole or main residence)-

(a) by a single person or by people living together as a family... "

Class C2 provides for residential institutions, including the following:

"Use for the provision of residential accommodation and care to people in need of care (other than a use within class C3 (dwelling houses). Use as a ... nursing home ..."

Article 2 of the order defines care as follows:

"personal care for people in need of such care by reason of old age, disablement, past or present dependence on alcohol or drugs or past or present mental disorder and in class C2 also includes the personal care of children and medical care and treatment ..."

Background facts

15. The question as to the classification arose in respect of the element of the scheme which comprised the extra care housing for the open market. At the inquiry the claimant submitted a draft section 106 obligation which provided as part of the obligations in the second schedule at paragraph 12:

"Non-Affordable Extra-care Dwellings

The Non-Affordable Extra-Care Dwellings shall be let on residential leases with terms of at least 125 years and the occupiers thereof shall be limited to persons in need of care and support who:-

12.1 Are joint residents one of whom has attained the age of at least 55 years or

12.2 A single resident who has attained the age of at least 55 years (unless the survivor of the joint residents mentioned in sub-paragraph 12.1)

and in need of a package of domiciliary care services and the Non-Affordable Extra-Care Dwellings shall not be occupied by any persons other than those so in need."

Paragraph 13:

"The occupancy of the Non-Affordable Extra-Care Dwellings shall be managed and administered by an operator registered with the Commission for Social Care Inspection or any successor body thereto and shall not be managed and administered by any party or body other than an operator so registered."

16. I intervene at this point to explain paragraph 13 although it was not strongly relied upon by Mr Fraser-Urquhart in this court. Under the Care Standards Act 2000, section 11, there is a requirement for a person to register an establishment, including an establishment providing care. As such, the premises would be subject to inspection on behalf of the Care Quality Commission.
17. I have already referred to the decision letter, paragraph 4, where reference is made to the draft undertaking and to paragraphs 30 and 31, where reference is made to the Inspector allowing for the unilateral undertaking in draft to be amended and submitted after the end of the inquiry. I return to that aspect under ground three, but for present purposes the completed section 106 undertaking was submitted to the Inspectorate under a letter, dated 31 October 2008. It is dated the same day and contains paragraphs 12 and 13 of Schedule 2 unchanged from that in the draft. The submitted undertaking also included an additional provision at paragraph 14, to which I again will come back as part of ground three.
18. In his witness statement made on 18 December 2008, Mr Robin Tetlow, who represented the claimant at the hearing, dealt at paragraph 16 with the position so far as the draft undertaking was concerned. He drew attention to part of his submitted representations as to the purpose of the section 106 unilateral undertaking. At paragraph 17 he referred to the two paragraphs as, in his words, guaranteeing that the non-affordable extra care dwellings will be limited to persons in need of care and support and managed by an operator registered with the Commission for Social Care Inspection, and that he had explained those proposed restrictions to the Inspector at the hearing.
19. At paragraph 21 he dealt with the hearing itself. At paragraph 25 he recorded a suggestion by the Council and the Inspector that the age restriction of 55 might be too low. He said that he responded by saying that 55 was very much a minimum, provision of care being the essential defining feature based on experience elsewhere in the United Kingdom, and that first occupiers of similar CCRC type developments tend to be 70 plus. He then went on at paragraph 24 to deal with the request to sign the unilateral undertaking in amended form. I will return to that again under ground three. I was told that if it was not to have been amended, the unilateral undertaking was intended to have been completed at the hearing and submitted at that stage.

Submissions

20. Mr Fraser-Urquhart submits that the Inspector misdirected himself in paragraph 15 in that he treated the requirement for class C2 as having:

"any pre-existing medical condition requiring extra care."

That plainly is not the requirement of the definition in the Use Classes Order, but it may explain why the Inspector came to the conclusion that the market housing was not a class C2 use against the clear weight of the evidence. That evidence included, in particular, the obligation contained in the draft section 106 obligation before the hearing, which in due course formed part of a completed section 106 obligation, as submitted to the Inspector, but which he discounted to the extent shown in the decision letter.

21. The limitation in the obligation was to those in need of care and support, which in context could properly be seen in the light of the Use Classes Order definition and would effectively limit the occupation of the dwellings to that extent.
22. Mr Forsdick submits that in the decision letter commencing at paragraph 11, the Inspector was essentially concerned with what are the claimant's contentions, rather than his main issue. In practice the debate over classification under the Use Classes Order only affected policy H1 and did not strike at the root of the overall sustainability and countryside objections. However, it is clear, he submits, that the Inspector here was dealing with the decision on the basis of the draft obligation, which he referred to in paragraph 4 of the decision letter. His concern as to the age limit being 55 rather than 65, which might more easily be associated with the elderly, was one that continued to apply with the draft obligation. The minimum package that he recorded as part of the evidence before him was as little as two hours care. That, I was told by Mr Fraser-Urquhart, was weekly.
23. Whether it is weekly or some other period, Mr Forsdick submits that it is not necessarily personal care for the purposes of the definition in Use Classes Order. Thus the Inspector was entitled to look at age as the main criterion. Moreover, the terms of the section 106 obligation do not tie occupation into the definition, either in the sense of care and support as personal care, or needed by reason of old age. Thus the reference to existing medical condition does not detract from that overall conclusion.

Consideration

24. The proposed use of the bungalows was, in my judgment, a material consideration in this case. Moreover, as part of that consideration its classification, or the classification of the market bungalows, was also potentially material. It was potentially relevant to the application of the policies, including policy H1. It was also potentially relevant to the question of need.
25. The Inspector dealt with the decision taking account of the provisions of the draft section 106 obligation, so far as it applied to the affordable housing. It is not at all clear to me that he took account of the provisions of paragraph 12, or for that matter 13 of Schedule 2 in the draft 106 obligation in his decision. At paragraph 4 he referred to the draft obligation as relating to affordable housing. There is no reference to it in the discussion at paragraphs 11 to 17 of the decision letter. At paragraphs 31 to 32 he expressly does not take account of the completed unilateral obligation, but he specifically records that he does take account of the draft for affordable housing, without any reference to the draft in respect of paragraphs 12 or 13 for the market bungalows.
26. I conclude that in those circumstances the evidence on the face of the letter is that the Inspector did not take account of paragraph 12, or, for that matter, 13, in the draft obligation, which in due course was part of the completed obligation submitted to the Council and to the Inspectorate and would be binding to that extent.
27. Whatever is the position on the new parts of that obligation, I see no basis on which the Inspector could reasonably have rejected the clauses that were in the draft before him at the hearing that affected the extra care bungalows, while at the same time taking into account provisions that in fact had been amended, but related to the affordable extra care housing. Certainly that is not explained on the face of the decision letter.

Does it matter?

28. The effect of the obligation was to limit the occupation of the bungalows to persons in need of care and support. Thus it was a restraint on their general market occupation. In the context of a development, which in the preamble to the obligation is referred to as "extra care elderly person's bungalows", that would reasonably be interpreted at least in that context. The requirement for the need for a package of domiciliary care services was additional to the basic requirement that the occupiers be in need of care and support.
29. The Inspector refers to the main qualification as being age, but while that may be a qualification with the obligation in place, a further and potentially important obligation would be the overriding requirement for the need for care and support. I also have in mind that at paragraphs 16 and 17 of the decision letter the Inspector was satisfied that the affordable housing units would fall within class C2. However, in terms of the draft obligation, although there is a requirement for provision through the registered social landlord, the relevant obligation seems to be, so far as it is different in terms of occupation, simply that the occupiers be in need of extra care and support, as opposed to care and support, but without the requirement for a domiciliary care package. There is no hint in the decision letter of any explanation as to why the distinction was made in the Inspector's conclusion as to whether the proper classification was C2 or C3.
30. I readily appreciate that this may not itself satisfy the requirements of the Use Classes Order definition in itself, for the reasons indicated by Mr Forsdick, but it does secure the objective that it would afford the opportunity of providing care for those who needed care and support. Moreover, that was sufficient for the Inspector to come to the conclusion that albeit with the requirement for extra care and support, the affordable housing properly attracted C2 classification. It does not seem to me that the Inspector has addressed what seems, as I have said, to be a potentially material consideration both as to the application of policy and the question of need, and overall in his decision. This was, in my judgment, material. I consider the effect and discretion later.
31. I should add that it is right that in the Use Classes Order if dwellings fall within class C3, by the terms of the definition, they cannot fall into class C2. That matter, it is accepted, was not debated before the Inspector and although it may be that neither affordable houses nor the extra care bungalows, would, if that definition was applied on that basis, fall into class C2, the analysis and examination by the Inspector was on the basis of applying the definition in class C2, without apparently seeking to apply the exclusion if they fell into class C3. Thus, for the purposes of considering this ground, I follow the course, which I was invited to follow by Mr Fraser-Urquhart, and deal with it on the terms of the issues before the Inspector. To this extent, accordingly, this ground succeeds.

Ground three: The Unilateral Obligation

32. Mr Fraser-Urquhart submits that the Inspector had given rise to a legitimate expectation at the hearing that the additional provisions in the section 106 obligation would be considered as part of his decision. I set out the Inspector's position earlier in this judgment, including that he rejected the additional provisions in the section 106 obligation beyond those dealing with affordable housing, as set out originally in the draft.
33. The Inspector excluded consideration of that material in accordance with rule 14 of the Town and Country Planning (Hearings Procedure) (England) Rules 2000, which provides in subrule (2):

"When making his decision the inspector may disregard any written representations, or evidence or any other document received after the hearing has closed."

The evidence in support of the legitimate expectation includes the following. In the witness statement of Mr Tetlow at paragraph 24 he says:

"At the conclusion of the discussion on the third item the Inspector indicated that he might be disposed to allow more time for the resolution of the issues in dispute within this Unilateral Undertaking. In doing so he specifically mentioned the context by which the Council had refused to comment on earlier drafts and had not fully articulated its concerns until the actual day of the Hearing. Over the intervening luncheon break I was instructed by my clients to make a formal request for a further seven days in which to revise the Unilateral Undertaking to address the Council's expressed concerns. I duly made this request towards the end of the Hearing prior to handing the Inspector the two executed Undertakings. The Inspector duly granted my request. As far as I can recall in doing so he did not specifically restrict 'the brief' (as termed in paragraph 31 of the Decision Letter). Based on my experience of several complex Secretary of State cases in which there has been extensive correspondence between the parties about revisions to Unilateral Undertakings subsequent to the Inquiry but prior to a final determination, I reasonably anticipated the seven day extension would leave my clients free to make any reasonable changes they chose provided that these were in direct consequence of or in direct response to matters advanced prior to or at the Hearing."

34. So far as the extra care bungalows are concerned, the points of difference that Mr Fraser-Urquhart identified are in paragraph 23, which relate to the age restriction of 55, as recorded in the decision letter.
35. What appears to have followed is that on 28 October the policy and enabling officer to the second defendant emailed solicitors acting for the claimant setting out their requirements for amendment to the section 106 obligation. All of those appear to have related to the provision of the affordable dwellings. However, in the section 106 obligation that was completed the additional provision was added to the second schedule, which provided as follows:

"14 Not to Commence the Development without first obtaining the County Council's written approval of the Community Care and Management Plan."

The Community Care and Management Plan is defined in clause 2.7 of the obligation as follows:

"... a document prepared and agreed between the Owners of the Care Provider and the Affordable Housing Provider and approved in writing by the County Council such document to include inter alia detailed arrangements for the individual assessment of care needs for the occupiers of the Development who are in need of care and support restrictions on occupation the calculation of service charges and the day to day management and maintenance of all the buildings and communal areas its purpose being to ensure that the Development operates and continues to operate as a cohesive community with the operation of the said Nursing Home the Affordable Dwellings and the Non-Affordable Extra-Care Dwellings and associated communal facilities being integrally linked and ensuring that the Development provides care and support to persons in such need."

36. It is accepted by Mr Fraser-Urquhart that nothing of that kind had been debated at the hearing. Its provenance can be seen from the letter, dated 31 October 2008, to the Inspectorate and copied to the second defendant enclosing the completed obligation. That referred on the second page to discussions between the claimant and the County Council, a result of which included the following:

"The wording of the undertaking has been revised to contain additional obligations relating to a Community Care and Management Plan which must be approved by Essex County Council."

That is referred to under additional comments:

"In our submission the changes we have agreed with Essex County Council represent a substantial enhancement to the third unilateral undertaking. The proposed Community Care and Management Plan will provide a clear framework ensuring that there is proper integration between the different elements of the scheme and the scheme will operate and will continue to operate within the parameters of Use Class C2. The revisions made answer the fundamental doubts the District Council expressed at the hearing. With the benefit of this Undertaking the appeal proposals now undoubtedly comply with the tenets of the Counsel's opinion included in appendix 4 of our Statement of Case."

It appears that there were in addition representations made directly by the second defendant to the Inspector, but they are not before this court.

37. Having considered the evidence that has been put forward, and in particular the witness statement of Mr Tetlow, I am not satisfied here that there is evidence of a clear representation or conduct leading to a legitimate expectation on the part of the claimant as to the exercise of the Inspector's discretion under rule 14. The material that was added to the undertaking did not directly respond to the concern that Mr Tetlow identified in his witness statement. I also have to bear in mind that the Inspector's understanding is specifically set out in paragraphs 30 and 31 of the decision letter, and it plainly did not allow for the kind of addition which one finds in paragraph 14.
38. In my judgment if there is to be the creation of a public law right of legitimate expectation making an administrative action unfair, there must be specific and cogent evidence to support it. I am not satisfied that that has arisen in this case.
39. I have already dealt under ground two with the original obligations in the draft, and that seems to me to be entirely different. I would add that in the circumstances where there was no legitimate expectation as here, then the Inspector's exercise of his discretion in the light of rule 14 properly responded both to the nature of the additional provision, which raised a range of matters that would be likely to require further representations to be made, but also had to bear in mind not merely fairness, but also the intention of the hearing procedure to ensure a speedy and effective means of resolution. In these circumstances I am not satisfied that this ground is made out.

Ground Four: PPS3

40. I will deal with this ground shortly. In my judgment it is not possible to conclude, on the face of this decision letter, that the Inspector did not have in mind the advice in PPS3 supporting the provision for the elderly, and, in those circumstances, I reject this ground.

Ground Five: Need

41. Again I can deal with this submission shortly. Mr Fraser-Urquhart submits that there was no evidence for the Inspector to conclude that a site could emerge to meet the need for the CCRC development identified in the strategic market housing assessment over the next three years. In those circumstances it was not open to the Inspector to place less weight on that factor than contended for by Mr Tetlow.
42. In this part of the decision letter the Inspector was referring to the strategic housing market assessment, which he accepts identified a strategic need arising for the extra care for accommodation for older people over the next three years. How and whether that need is met would be addressed through the planning system, including the local development framework and development control. The Inspector acknowledged that the appellant's evidence was that there was no available site. However, he noted that one could emerge through the local development framework process over the next two years, a process which is inherently different from that undertaken by an individual appellant. However, importantly in his view, the identified need, which he did not dispute, did not justify permission for the proposal in this unsustainable location. That analysis and conclusion discloses no error of law and was supported on the evidence. Accordingly this ground fails.

Discretion

43. Mr Forsdick submits that given the overriding policy objections to the proposal it is not possible to suppose that a different conclusion would have been reached, even if the Inspector had taken into account the relevant clauses of the section 106 obligation, the subject of ground two. The difficulty with that submission, in my judgment, is the Inspector carried out, as he was bound to carry out, a balancing exercise in accordance with section 38(6) of the 2004 Act. The nature of the use properly understood could, or would potentially, affect the application of policy, the role of the use and its potential benefit.
44. In paragraph 34 of the decision letter in his overall conclusion the Inspector identified three matters, the second of which was that the leasehold bungalows did not conform to local plan housing policies. At least on his analysis if he reached a different conclusion, taking into account the unilateral obligation so that the housing policy did not apply, that element in the balance would inevitably be altered.
45. In my judgment, it is impossible to conclude that consideration of the section 106 obligation, including paragraph 12, would not have made a difference. In these circumstances on this ground of challenge the decision will be quashed.
46. MR FORSDICK: My Lord, before we get to costs can I raise a couple of points on the wording used?
47. THE DEPUTY JUDGE: I would be very grateful.
48. MR FORSDICK: There were a couple of times when my Lord used the word "nursery", rather than "nursing home". My Lord referred to ground four for the legitimate expectation ground, rather than ground three.
49. MR FRASER-URQUHART: There was one occasion when your Lordship, I am sure guided by us, referred to "the inquiry" rather than "the hearing".
50. THE DEPUTY JUDGE: I am most grateful. It is very easy to fall into that trap.
51. MR FRASER-URQUHART: I would ask for an order quashing the decision formally and remitting the matter to the Secretary of State for re-determination. I would also ask for my costs in the matter.
52. THE DEPUTY JUDGE: Have we got a summary?
53. MR FRASER-URQUHART: There is a summary which has been provided. Does your Lordship have it? Obviously not. If I can pass up mine, which may assist. As your Lordship heard me say at the outset to the proceedings, I have been acting through part of these on the direct public access basis, including at this hearing. There was, however, a period during which Messieurs Sharpe Pritchard were involved and instructed. They prepared the initial hearing bundle and lodged it with the court. They did various administrative tasks thereafter. The costs schedule was prepared on the basis of Mr Tetlow, who did an amount of work both in the very early stages of the claim and in the run up to this hearing, preparing the trial bundle and so forth. He is charged on the cost schedule as typed at his normal hourly rate. The situation properly should be, and we accept this entirely, that in those circumstances as a litigation friend, as he would then stand, he can only be charged at the relatively nominal rate of £9.60.
54. THE DEPUTY JUDGE: It is still £9.60.
55. MR FRASER-URQUHART: It is still £9.60 I am told and I accept.
56. THE DEPUTY JUDGE: Is this going to be contentious?
57. MR FRASER-URQUHART: I am told two aspects will be. I want your Lordship to have the position. I entirely accept the reduction on the £9.60 figure. One of the aspects will, I anticipate, be contentious. Aside from one other aspect, which is embarrassing to me personally, as I understand my fees are going to be questioned in these proceedings, in any event the figures include, as your Lordship will see, some figures for other work done, which is, I think, on the second page of the schedule. That is the residue of the Sharpe Pritchard bill, which is not immediately attributable to work on documents that they did. I am not in a position, I have so say, this afternoon to provide a detailed explanation of that, the costs schedule having been prepared by Mr Tetlow who is not experienced in these matters. In any event, that is where the position has come from.
58. We accept entirely the deduction to be made. I am afraid I have not had a chance to calculate the effect on the total bill of the annotations I have made of the lower figure at 9.60 an hour. Other than that, that is the application I make, my Lord.
59. THE DEPUTY JUDGE: It is difficult for me to assess costs if I do not know what they are for at all.
60. MR FRASER-URQUHART: I appreciate that. That is where they have originated.
61. MR FORSDICK: The £9.60 is what I am instructed is the correct figure. On that, my Lord, normally the other work is just very small odds and ends. Ten hours by a trainee solicitor is just not explained and without an explanation, in my respectful submission, it should not be awarded, which would mean at the bottom of that page we should have the figure of £947.92. Those instructing me have calculated it at £947.92.
62. THE DEPUTY JUDGE: I am concerned you do not have a copy of this.
63. MR FORSDICK: At the bottom here the figure of £4552.50 should be replaced with £947.92.
64. THE DEPUTY JUDGE: Can I be clear what you have taken off?
65. MR FORSDICK: We have taken of all of the £9.60s.
66. THE DEPUTY JUDGE: They have come off?
67. MR FORSDICK: They have been reduced. They were taken off (b) "Other work" but one needs to add in £9.60 for the (c), which is Mr Tetlow's one hour. That would then come up to £956.52. Then over the page.
68. THE DEPUTY JUDGE: Let me write in the £150 becomes £9.60 and the £1070 you say goes.
69. MR FORSDICK: In respect of the counsel's fee, what a clerk agrees with a client is a matter between them on private contractual arrangement, but what the Secretary of State has to pay on a summary assessment of costs is a wholly different matter. In my respectful submission, in these sorts of cases that level of fee -- I would not be raising this but for the fact it is way out of what one would normally expect in this sort of case. Therefore it is not appropriate on a summary assessment for the Secretary of State to be asked to pay it. We have no objection in respect of the fee for advice, conference and documents, assuming that includes a skeleton argument, but the fee for hearing is at a level that we say the Secretary of State should not be exposed to on these one day applications under 288. My Lord will have seen more of these schedules, I suspect, than I have. We would ask that you substitute a figure at about half that level as an appropriate fee for this sort of case.
70. Just for my Lord's comparison, can you look at the assessment of costs for the Secretary of State? Of course I am a respondent and I am at the Secretary of State's rate. The total is for advice, conference and the skeleton argument and it is £1,800 and the fee for hearing is £600. My Lord, the discrepancy is so very substantial that that is why I have risen on that aspect.
71. THE DEPUTY JUDGE: I understand that.
72. MR FORSDICK: What we would be saying is that if one substituted a "4" for the "75" and took off the VAT, because that will be--
73. THE DEPUTY JUDGE: Where are you now?
74. MR FORSDICK: In the box on fee for hearing. If one substitutes a £4000 for the £7,500 effectively in that box and took off the VAT, one would be left with £9,309, which I am instructed, and from my experience, is broadly what one would expect in this sort of case any way.
75. THE DEPUTY JUDGE: Mr Fraser-Urquhart, I will hear you.
76. MR FRASER-URQUHART: With respect to the matter for other work done, I entirely appreciate the fact that there is not a detailed explanation of what the figures represent. I have provided such information as I have at this stage. I appreciate your Lordship is, to an extent, making a broad brush assessment and it would be inappropriate in those circumstances, in my submission, for the whole amount simply to be struck out. I would simply invite your Lordship to make some appropriate substitution.
77. With respect to counsel's fee, I do not propose to say anything in detail other than observe that, as far as my clients are concerned, it represents an appropriate market rate and that is the appropriate market rate to which the Secretary of State--
78. THE DEPUTY JUDGE: It is not a reflection of your particular skill or position, but I have to have an eye on what is the general order of fee.
79. MR FRASER-URQUHART: My learned friend is entirely correct, your Lordship has seen far more of these than I have.
80. THE DEPUTY JUDGE: Thank you very much. This will have to be calculated by someone. I do not have my calculator with me. I do not propose to allow the figure for other work. I have no details of it. I think the reduction to £9.60 is appropriate also for the item under "other work". I accept and assess the costs in respect of that element to the sub-total of £956.52.
81. So far as counsel's fee for the hearing is concerned, I consider that is excessive and I will reduce it to £4,500. I do not have the calculations. Can I leave it to you? I will assess it accordingly. Can you prepare a minute of the order? Are there other applications?
82. MR FORSDICK: I am grateful for the judgment. There is an application for permission to appeal on the simple basis that my Lord has held that paragraphs 14 and 15 of the decision letter do not take into account the section 106 clause 12. My Lord, in my respectful submission, that, just as the matter of reading of it, is open to question, given that there is nowhere else the age limit of 55 or the care provision can have come from. So we would say that just as a matter of the interpretation of the decision letter there is a point that there is an arguable case that my Lord's judgment is wrong. However, more importantly, my Lord, the way in which my Lord has put it means that C2 can encompass on the assumption that those paragraphs of the decision letter are correct, but that they do not take into account clause C12. C2 can encompass the sort of people about whom I was making submissions, namely 55-year old people who I say are not old and not in need of care.
83. My Lord has assumed that the section 106 pulls in the requirement for personal care implicitly from the headnote or the recital in the 106 itself. My Lord, what I say is that to the extent that my Lord's judgment could be seen as an extension of C2, or the circumstances in which C2 can apply, it raises a point of general public importance, particularly, as my Lord will be aware from other cases, C2/C3 and how they are interrelated is a matter coming before the courts on a quite regular basis. My Lord has had two cases today on it.
84. In my respectful submission there is a good case for that matter being considered by the Court of Appeal.
85. THE DEPUTY JUDGE: I do not propose to grant permission in this case. In my judgment there is not a reasonable prospect of success, so far as importance is concerned, although I will obviously review the transcript. It was certainly not my intention to incorporate the Use Classes definition into the section 106 obligation. In any event, even if that is not a correct understanding, it is not, in my opinion, sufficient to justify granting permission in the light of my view of the prospects of success. Therefore permission is refused.
86. MR FORSDICK: I have been instructed to make the application I proposed this morning in respect of the date of the transcript. As my Lord will be aware, the Treasury Solicitors will have to take instructions from the PINS before it contemplates taking the matter higher.
87. THE DEPUTY JUDGE: This morning it was simply put on the basis of waiting for the transcript. It is just my experience recently they can be very delayed.
88. MR FRASER-URQUHART: Forgive me I was not in court this morning.
89. THE DEPUTY JUDGE: This morning the application was made by, I think, the authority on that occasion to extend time until the transcript is available. I rejected it on the basis that it was an indefinite time and my experience has been that some transcripts are delayed very considerably. If there are particular reasons, apart from that, of course I will listen to them.
90. MR FORSDICK: We, when acting for the Secretary of State, have to seek instructions from PINS and the DCLG before cases go higher. In order to take those instructions there needs to be a very careful note as to what my Lord has said precisely, and what the potential implications of my Lord's judgment might be more broadly. That normally, as a matter of course, would happen when we get the transcript. I understand my Lord's reservations about the delay in the transcripts, but it is clear, and I apologise for this, that I have got slightly the wrong end of the stick in my Lord's judgment from my application for permission to appeal. Whilst we do the best to create some notes as best we can, in the circumstances of this case we would ask for 21 days from the date of the transcript.
91. THE DEPUTY JUDGE: (Discussion with shorthand writer regarding time scale of production transcript) I am told the obligation in this sort of case, although maybe I have been unlucky, is nine days. What I am minded to do, and I will obviously hear from Mr Fraser-Urquhart on this, is to establish a time frame. If you need to ask for additional time you have to go and ask for it. Can I first of all hear what Mr Fraser-Urquhart has to say?
92. MR FRASER-URQUHART: I have to confess, my Lord, that I think I have not been as lucky as your Lordship in terms of time for transcripts. We do have a genuine concern about further delay in this matter. As your Lordship will appreciate, times for smaller scale developments are not easy and the bringing forward of a scheme that has successfully received planning permission can be of critical importance (I do not use that word lightly) for the economic future of a company. To allow anything more than a very short further period, beyond the normal rules of court for this sort of reason, may do grave damage, with respect, to the interests of those who instruct me. Therefore, I would urge your Lordship that, if any consideration is to be given to this sort of application, a strict timetable be imposed.
93. THE DEPUTY JUDGE: That is what I had in mind. I should make it to a specific day. I do not have a diary. I will extend the time to 12 noon on 17 August, which is a Monday.
94. MR FORSDICK: Thank you very much.
95. THE DEPUTY JUDGE: In those circumstances I will allow the application and quash the decision. I make an order for the claimant's costs to be paid, which I assess in the sum of £10,022.39, with liberty to apply on that amount. I refuse the application for permission to appeal, but extend the time for any application to the Court of Appeal for permission to 12 noon on 17 August 2009.